form system of pleading and practice is made applicable to both classes, which are now included in the common denomination of "civil actions," (s. 69.) The code abolishes all forms of pleading inconsistent with its provisions, and declares that the sufficiency of pleadings shall hereafter be determined by the rules which it prescribes.

One of the evils charged to the former judicial system of this State was, the alleged inability to determine in what forum to apply for redress. It was said that parties frequently applied to courts of law for relief, when, as they afterwards found, their cases appertained to a court of equity, and vice versa. It was even claimed that some were denied a hearing altogether; the courts of law and equity declining jurisdiction, each alleging that it appertained to the other. Whether mistakes of this kind were unavoidable, or were frequent enough to furnish any just ground of objection to the system which has been recently superseded, it is not important to inquire. Such a difficulty was claimed to exist and alleged to be a serious mischief, and a remedy for it was sought by the successive action of the constitutional convention and of the legislature.

With this view the constitution conferred jurisdiction"in law and equity" on one tribunal. But this did not fully obviate the difficulty. It promised to secure ultimately a hearing, on one side of the court or the other; but the pleadings and practice at law being still different from those in equity, the same necessity continued for determining beforehand to which side jurisdiction belonged. The commissioners on practice were therefore instructed to report a system abolishing these forms, and providing "for a uniform course of proceeding in all cases, whether of legal or equitable cognizance," (Laws of 1847, p. 67.) The code followed these instructions in the 69th section.

To allow a mode of pleading in suits of equitable cognizance different from that required in suits at law, would frustrate the obvious design of this legislation. It would be in conflict with its plain provisions, and perpetuate, at least in part, the very mischief at which it was specially aimed.

The intention of the legislature manifestly was, to permit a party to state the facts of his case in his complaint, as they may exist, without imposing upon him, the responsibility of determining in advance, whether relief should be administered to him according to the rules of legal or equitable jurisprudence. The court pronounce such judgment as the facts which are stated and proved, require, whether it be legal or equitable. If the different modes of pleading remain, as is contended, it is now as important as ever to determine beforehand to which class the action belongs, and a mistake on this point must produce the same mischief which the framers of the constitution, and the legislature, have tried to prevent.

Except to obtain a discovery, no necessity ever existed for detailing the evidence, even in a bill in chancery. It was useful only to enable a complainant to examine his adversary as a witness. When this was not required it was only necessary, as now, to state the facts. A detail of the evidence did not aid the prosecution, nor did its omission limit the scope of the testimony or affect the remedy.

The examination of a defendant by bill of discovery, is now done away, and with it all occasion for resorting to the peculiar mode of pleading to which it gave rise. The granting of judicial relief must always be preceded by an ascertainment of the facts upon which the right to it depends. It is the office of pleadings, to present facts, as they are claimed by the parties respectively to exist, and I have not been able to conceive why the facts should be accompanied by a statement of the evidence, where equitable relief is demanded, and such statement be omitted when the application is for a judgment at law. There seems to be no authority in law or reason for continuing in this state a distinction between the pleadings in actions at law and those in suits in equity.

In Williams v. Hayes, 1 Code Rep., N. S., 148; 5 Pr. R., 473, Harris, J. says, "with great deference I am constrained to dissent from the conclusion in Rochester City Bank v. Suydam, supra. It was not the intention of the legislature, in adopting the code, to continue the distinction between common law and equity pleadings. On the contrary, it was intended that there should be but one system of pleadings. It was not intended that the rules of common law pleading should be applicable to one class of cases, and those of chancery pleadings to another. On the contrary, it was intended that neither the rules of common law pleading, nor those of equity pleading, should be exclusively applicable to any case of pleading under the code. In every case, the criterion, by which to judge of the sufficiency or insufficiency of

the pleading is to be the same. Whether the case is one of an equitable nature or of common law jurisdiction, so far as the pleading states facts essential to the cause of action, or the defense, or to avoid the matter of defense, so far it is unobjectionable; whatever else it contains, is redundant or irrelevant, and may properly be stricken out. If I am right in this view of the question, it follows that matters of evidence, or as it is expressed by Justice Selden, the facts and circumstances which go to establish the essential facts in the case, ought not to be inserted in the pleadings. The very language in which the code has prescribed what the several pleadings which it allows shall contain, seem to exclude from such pleadings all mere matters of evidence. My own experience, and I think that of every other judge, as well as that of the bar, has proved that it is wise, if not absolutely necessary, if we would give practical efficiency to this novel system, to confine the pleadings to their legitimate office; and whenever the opportunity is presented, to disencumber them of the unnecessary matter, with which they are now so frequently crowded. By this means alone, I am fully persuaded, can the system of pleading be rendered useful or even tolerable, and the end for which it was adopted, that of simplifying and abridging pleadings, be attained.

Again, in Wooden v. Waffle, 1 Code Rep., N. S., 392, 6 Pr. R., 145, Selden, J. said,

"1. Has the code blended common law and chancery pleadings and molded them into one system, so that now the same rules apply to all actions; or are different rules to be applied according to the nature of the action, whether equitable or legal?

"2. If any of the rules of chancery pleading in respect to the statement of facts are to be retained in cases seeking equitable relief, how has the code modified those rules?

"Upon the first of these questions, I have already expressed an opinion in Rochester City Bank v. Suydam (5 Pr. R., 216); but as two of my associates have come to a different conclusion upon the same point, I feel called upon to review my reasoning in that case.

"It may now be considered as settled, that, in a purely legal action, the common law rule which confined the allegations of fact in every pleading to such as were essential to the cause of action or defense, and which if put in issue, would be decisive of the suit, is still in force; and that whatever is inserted beyond these essential facts in such an action will be stricken out on motion, (Shaw v. Jayne, 2 Code Rep., 69; Knowles v. Gee, 3 Id. 31; Milligan v. Cary, 3 ib. 250; Williams v. Hayes, 1 Code Rep., N. S., 148.)

"In the two last of these cases Sill and Harris, JJ., respectively held, contrary to the opinion expressed by Welles, J., in Shaw v. Jayne, and by myself in Rochester City Bank v. Suydam, that the rule just stated applies no less to equitable than to legal actions, and that whatever is redundant in the one is equally so in the other.

"Each of these justices rests his decision mainly upon the ground that it was the intention of the legislature to abolish all distinction between common law and equity pleadings. How is this proved?

"The constitution establishes a distinction between law and equity. The code recognizes this distinction, and provides a different mode of trial for legal and equitable actions. Can the two jurisdictions be kept distinct, with different forms of trial and different modes of relief, and yet the same rules of pleading be in all respects applied?" He then goes on to conclude that they cannot; and proceeds (p. 396):

"Our second inquiry is as to the extent to which the code has modified the rules applicable to the statement of facts in an equity pleading. This question will be considered in its application to a complaint, as the answer in this case is virtually a cross bill.

"From what has been said here, and in Rochester City Bank v. Suydam, it must be apparent that there were two distinct reasons for the difference which formerly existed in the manner of making the allegations in a bill in chancery and a declaration at law. Those in the former were made more in detail,-First, to put the court in possession of all the facts showing both the plaintiff's right to relief, and what that relief should be; and, secondly, to obtain through the admissions of the defendant evidence to support the case.

"The first of these reasons is in no way affected by the code. Equity jurisdiction is retained. It is exercised upon the same principles and to the same extent as here. tofore. The mode of trial is the same. The relief is adapted to the circumstances

of the case. Every reason, therefore, which ever existed for a full statement of the case obtains now. But in regard to the second reason the code has made a change.

"By section 389, bills of discovery are abolished; but the section goes further, and provides that no examination of a party shall be had on behalf of the adverse party, except in the manner prescribed in that chapter.

"This last clause could not have been necessary to prevent a deviation from the provisions of the subsequent sections; it must have referred to some previous mode of examining a party on behalf of the adverse party. It would seem to have been aimed directly at the chancery practice of examining the opposite party by means of the pleadings.

"It was natural and appropriate for the legislature to pass from the consideration of the examination of a party by a bill of discovery in aid of another cause, to that of a similar examination in the same cause.

"Besides, the term used is appropriate, and covers the case. A bill in chancery was described and treated of in the books as an examination of the defendant as well as a pleading.

"I am forced, therefore, to the conclusion that an equity pleading can no longer be made use of for the purpose of examining the opposite party, and that whatever is introduced with that view alone, must be stricken out."

Weiles J., in Burget v. Bissel, 5 Pr. R., 194, after referring to the evils intended to be remedied by the code, says: The plaintiff may now set forth his case in his complaint in ordinary and concise language, and the court is to administer the redress to which by his allegatious and proofs he shows himself entitled, whether by the rules of the common law or the principles of equity. The only difference between the mode of stating a case (or defense) in an action (or defense) formed upon legal principles and one resting upon the rules of equity, is, that generally in the former the facts to be stated in the complaint are such as, by the common law rules of pleading, the declaration was required to contain; that is, issuable facts essential to the cause of action, and not those facts and circumstances or the evidences of facts which merely go to establish such issuable facts; while in the latter, the plaintiff is at liberty to follow the rules of pleading formerly prevailing in the court of chancery. The learned judge then went on to say that those views applied only to cases where it was not clear whether the party's remedy was at law or equity. And that where there was a doubt whether or not an action or defense was of an equitable nature, the court should give the party pleading the benefit of the doubt, and not strike out a pleading which if the action or defense were clearly of an equitable nature, would be good; as the only evil consequence of permitting such pleading to stand was the encumbering the record with unnecessary matter. See the cases previously cited in this note, and the cases of Shaw v. Jayne, 2 Code Rep., 69; 4 Pr. R., 119. At this time it seemed well settled that in actions of a legal nature, a pleading which stated facts as distinguished from the mere evidence of facts (a distinction certainly difficult, practically to apply), was sufficient. But then came the case of Dollner v. Gibson, 3 Code Rep., 153. In that case the complaint in its material part was as follows.

"The plaintiffs aver that in July, 1845 they were and still are partners in business, and as such they sold to one Adam Maitland for and on behalf of the defendant, thirty-two barrels of stearine, on a credit of fifteen days, for the price of $591 75. Plaintiffs, on information and belief, aver that the said Maitland, in making said contract, acted with the knowledge and assent of said defendant and as his agent, and that the said merchandise, shortly after the said contract of sale, was delivered to, and the same was received by the defendant. Plaintiffs aver that said merchandise is unpaid for, and that the defendant remains indebted unto the plaintiffs in the sum of $591 75, with interest from first of August, 1845, for which sum they demand judgment with costs ;" and on a motion to strike out the words in italic, the court, Edmonds J., in granting the motion, said:

"Among the many questions of doubt and difficulty which have arisen under the code, those have been very numerous alone, which flow from the imperfect and inartificial use of the language in which it is expressed, there has been none which has given rise to as much diversity of opinion as that in regard to pleading.

The code begins by professing to abolish" all forms of pleading heretofore existing." Sect. 140. The first question that occurs is, what does this mean-" abolishing the forms of pleading?" Not surely that the words heretofore used in any given form of a count or a plea, are striken out of the English language and abolished

for that was scarcely in the power of the legislature-not that the combination of those words in the same form and sentences should never again be made by any one, for that was scarcely less attainable-but simply, as far as I can understand it, that parties to a suit should not be obliged to use those forms, for they are nowhere prohibited from using them-and as before the code, no party was obliged to use the forms then existing, it would seem to follow that the abolition of the forms in reality amounted to nothing.

The code, however, did not carry the abolition as far even as at first blush it seemed to; for it abolished the forms only so far as they might be inconsistent with that act, and modified them as prescribed by that act.

The principles of pleading are left untouched, and except as to form, nought else is done than to modify also the rules by which the sufficiency of a pleading is to be determined.

In all questions, then, as to pleading, we must bear in mind that the principles of pleading are untouched, and that the forms are affected only where they are inconsistent with some positive enactment of the code.

One principle which lay at the foundation of our system of pleading-and the system was as admirable for its perfection, as it was venerable for its age-was, that it was the legal effect of facts, and not the facts themselves which were to be pleaded. The pleader did not set out all the circumstances by which he expected to establish his claim-all his probative facts, as they have not inaptly been termed, but only the legal conclusion which was properly deducible from them.

For instance, a man lent his horse to one who refused to return him on demand. If the owner sought to recover him back specifically in replevin, he would plead merely, that the borrower wrongfully detained his horse. If he sought to recover damages in trover, he would plead that he lost his horse and the borrower had found him, and had appropriated him to his own use; and if he sought to recover the value of his horse in assumpsit, he would plead that he had sold and delivered him.

So in an action against an indorser of a promissory note, who had waived protest, the pleader would not set out the waiver, but he would plead a protest; for such was the legal effect of the waiver.

So, also, on a sale and delivery of goods, even where there was no express promise to pay for them, a promise was also always pleaded; for that was the very foundation of the action, and was the legal effect of the fact of a sale, and the sale and delivery were pleaded merely as the consideration of the promise.

So, too, where a man did an act by another as an agent, the act was always pleaded as the act of the principal himself, for such was the legal effect of what was actually done.

But it is very frequently and almost generally disregarded by the profession. They are misled by their familiarity with the old mode of pleading in equity, and by the oath which the party is required to make to his pleading. They forget that one quality of equity pleading has been entirely abrogated, and that it is no longer to be used as a means of discovery. When it was so used, it was not merely a mode of setting out a claim, but was a means of obtaining evidence of particular facts to substantiate that claim, and it necessarily dealt in probative facts as well as in the legal effect of them. That whole thing, however, is changed; and pleading, which is the statement in a logical and legal form of the facts which constitute the cause of action or defense, has now that alone as its object, and is governed by the rule, which always prevailed in equity as well as in law, where the pleading was not used as the means of obtaining evidence-namely, that the legal effect of facts, and not the facts themselves, should be pleaded. The grand object being the creation of a certain and material issue upon some important part of the subject-matter of dispute, when both parties join upon somewhat, that they refer to a trial to make an end of the suit.

The whole doctrine is happily expressed by Chitty," Although any fact may be the gist of a party's case, and the statement of it is indispensable, it is still a most important principle of the law of pleading, that on alleging the fact, it is unnecessary to state such circumstances as merely tend to prove the truth of it. The dry allega. tion of the fact, without detailing a variety of minute circumstances which constitute the evidence of it, will suffice."

The rule may indeed be difficult in its application, but it has been rightly said, that it is "so elementary in its kind, and so well observed in practice, as not to have become frequently the subject of illustration by decided cases." 1 Ch. Pl., 225.

The nature of the oath which under the code the party is required to make in regard to his pleading, does not affect this rule, but the oath is subordinate to it, and necessarily qualified by it.

I have been thus particular on this subject, because of the many and growing evils which spring from the disregard of the rule, that is becoming so very prevalent. Pleadings are stuffed full of all sorts of immaterial averments, leading to great prolixity and expense, producing many issues instead of a single one, giving rise to issues wholly immaterial, increasing the difficulties of trial, and often causing suits to be determined upon points quite foreign to the real matter in dispute; and it is high time the evil practice was checked.

The case before me is an apt illustration of the disregard of the rule and its consequences.

If the averment that Maitland bought the goods for the defendant is a true one, then it was a sale directly to the defendant, and ought to have been so averred; for such was the legal effect of the several facts set out in the complaint. The plaintiffs have, however, chosen to set out several circumstances which tend to establish the fact of a sale to the defendant, but they nowhere aver such a sale, and the very foundation of their action is wanting, unless we can spell out one, to save them from being defeated on their own showing. But this is not all. One of their probative facts which they allege, is that the goods were delivered after the contract of sale to the defendant.

Suppose the defendant should choose to take issue on that averment alone, and go down to trial on it, and have a verdict in his favor. He would be entitled to judgment on his verdict, at the same time the plaintiffs have a good claim on which they ought to recover, and for which they would recover but for this imperfect mode of pleading. It is true that the court might save the plaintiffs from the utter loss of their demand, by awarding a repleader, and giving judgment non obstante vere dicto; but that would not be done without subjecting him to the costs of the suit. In the mean time the court has had the trouble of trying an entirely immaterial issue, and of granting relief from the consequences of it afterwards.

I cannot imagine why the pleader has departed from the old and well established form of a count for goods sold and delivered. There is nothing in the code that prevents his using it, and I apprehend that a few such cases, especially if his adversary had been cunning enough to let him go on to the end, would induce him to be of opinion with Lord Coke, that it is safer to follow good precedent, for nihil simul inventum est ad perfectum.

I grant the motion in this case, though the complaint will not be good when the objectionable words are stricken out. It will, however, be better than it is now; for although it may not contain a cause of action, it will not contain a violation of a sound rule of pleading."

And in another case Hand, J., with the concurrence of Paige and Willard, JJ., said: "The forms of pleading before in use, although not now in some respects 'legal forms,' particularly as to the classification of actions, but the manner of stating the claim or defense as required by the code with this exception, and that of certain formal parts still remains, and in other respects I have not been able to discover that any great change has been made in the substance of pleading. The pleader may use his own language; but the necessary matter must be there, and be stated in an intelligible and issuable form capable of trial. Facts must still be set forth according to their legal effect and operation, and not the mere evidence of those facts, nor arguments, nor inferences, nor matter of law only. Nor should pleadings be hypothetical. Nor in the alternative. The same general principles governed pleadings in equity. Boyce v. Brown, 7 Barb. S. C. R., 80, 85. All that I mean to say now is, that as a general rule, a pleading to be good must state the facts constituting a legal cause of action or ground of defense, and these should be set forth in a plain, direct, definite, certain, and traversable manner, and according to their legal effect." And Hand J. in Pattison v. Taylor, 1 Code Rep., N. S., 175; repeats, should be stated according to their legal effect." And in Howard v. Tiffany, 3 Sand., S. C. R., 695; 1 Code Rep., N. S., 99, Sandford J., the Ch. J., and Paine, J., concurring, held that in actious strictly legal (using the old nomenclature), the facts constituting the cause of action may be stated substantially as they were formerly in the declaration; and again in Stone v. DePuga, 4 Sand., S. C. R., 681, Oakley Ch. J., and Sandford, Duer, and Mason, J J., held that" the rule of pleading in actions for a legal remedy is the same as formerly in this, that facts, and not

facts