272 ivi84 L < O Q H c/} < q O s QJnrnpU ICaui ^rl^nol ICibrary Cornell University Library KF 272.M84 Introduction to the study of law :PrJnte 3 1924 024 517 223 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024517223 YALE UNIVERSITY SCHOOL OF LAW INTRODUCTION TO THE STUDY OF LAW BY EDMUND M. MORGAN, M.A., LL.B. PROFESSOR OF LAW PRINTED FOR THE USE OF STUDENTS IN THE FIRST YEAR CLASS ABBREVIATIONS The following abbreviations, other than standard abbre- viations, are used herein. Ames Blackstone Bracton Br. N. B. Gilbert Harv. L. Rev. Holdsworth Mait. Eq. Perry P. and M. Rot. Cur. Reg. Stephen Stubbs Thayer Tidd Ames, Lectures on Legal History and Mis- cellaneous Legal Essays (1913). Blackstone's Commentaries (13th ed., 1800). Bracton, De Legibus et Consuetudinibus Angliae {inc. temf. probably about 1256). Bracton's Note Book (Maitland's edition, 1887). Gilbert, The Law of Replevins, Dublin, 1755- Harvard Law Review. Holdsworth, History of English Law (3d ed., 1923). Maitland, Equity and the Forms of Action at Common Law (1909). Perry, Common Law Pleading, Its History and Principles (1897). Pollock and Maitland, History of English Law before the Time of Edward I (2d ed., 1899). Palgrave, Rotuli Curiae Regis (1835). Stephen, Pleading (WlUiston's ed., 1895). Stubbs Select Charters (9th ed., 19 13). Preliminary Treatise on Evidence at the Common Law (1898). Tidd, Practice of the Court of King's Bench (2d Am. ed., 1807). Chapter I NATURE AND SCOPE OF LAW What is law? Definitions of law too numerous to mention, much less to discuss, have been framed by judges, lawyers, philosophers, and legal scholars. Some of these, as the late John Chipman Gray put it, "are absolutely meaningless, and in others a spark of truth is distorted by a mist of rhetoric." But whatever may be the ultimately correct theory, whether the law consists of the commands of the sovereign, or is made up of the edicts of the legislative agencies of a community plus a body of preexisting principles which the courts have but to discover and apply, or is merely "a statement of the cir- cumstances in which the public force will be brought to bear through the courts," or is to be otherwise characterized, the beginning student may well accept the opinion of Pollock and Maitland as a working hypothesis: "Law may be taken for every purpose, save that of strictly philo- sophical inquiry, to be the sum of the rules administered by courts of justice. . . . When a man is acquainted with the rules which the judges of the land will apply to any subject of dispute between citizens, or to any act complained of as an offense against the common weal, and is further acquainted with the manner in which the decision of the competent court can be enforced, he must be said to know the law to that extent."^ Gray has phrased the same idea thus: "The law of the State or of any organized body of men is com- posed of the rules which the courts, that is, the judicial organs of that body, lay down for the determination of legal rights and duties. . . [Some have declared it] to be an absurdity to say that the Law of a great nation means the opinions of half-a-dozen old gentlemen, some of them, conceivably, of very limited intelligence. [Yet] if those half-a-dozen old gentlemen form the highest judicial tribunal of a country, then no rule/or principle which they refuse to follow is Law in that country."^ 1 I P. and M. XXV. ^ Gray, Nature and Sources of Law (2d ed.), 84. Legislation. One of the sources from which the courts derive these rules is legislation. Theoretically, legislation may be enacted either directly by the members of the community or through their representatives; practically it is and always has been enacted by the latter, for universal participation in the framing or approval of statutes is impossible. Those who have and exercise the privilege of constructing a form of government for any jurisdiction may provide for a representative body with unlimited power of legislation, like the English Parliament, or for a body with strictly limited authority, like the Congress of the United States or the legislatures of all our states. The legislative sources to which an American court may resort are (i) the Constitution of the United States; (2) Acts of Congress and Treaties made within the authority of the Constitution; (3) the Constitution of any state in so far as not repugnant to the United States Constitution, the Acts of Congress or Treaties; (4) the en- actments of the legislature of any state not repugnant to the Con- stitution of the United States, the Acts of Congress, Treaties, or the Constitution of that state; (5) the enactments of any subordinate legislative body made within the scope of the powers duly delegated to it. Common Law. When a court, other than a court of admiralty or a military tribunal, is confronted with a problem which cannot be solved by reference to pertinent legislation, it is ordinarily said that it must make its decision according to the common law. The common law of England is usually defined as consisting of those principles, maxims, usages, and rules of action which are based upon imme- morial custom and are enforced by its courts. Some of them may have originated in unrecorded, lost or destroyed legislative acts. The common law of any American jurisdiction is generally considered as made up of the English common law, with such modifications as are required by the different circumstances and conditions therein exist- ing and certain English statutes in force prior to the Revolution. The materials which the court will first examine in its search for the rule to be applied are prior judicial decisions. If it finds an applicable precedent, it will ordinarily determine the controversy accordingly; if it can find no previous adjudication on all fours with the case in hand, it will try to ascertain whether any available decisions have sufiicient elements in common with it to require or justify an applica- tion of the rule used therein. If it finds a precedent squarely in point or applicable by analogy, but determines nevertheless that it ought not to be followed, or if it finds no pertinent precedent, it ought to, and generally will, decide the case as it believes a proper considera- tion of history, custom, morals, and sound social policy requires. Obviously in this process it does and must resort to non-legal ma- terials; it gives due weight, in so far as it is able, to the known truths of all the sciences affecting human experience and human conduct. The resort to non-legal materials is not confined to the solution of common law problems; it is made, though perhaps to a less degree, in the interpretation and application of statutes.' Morals. The generally accepted moral standards of the com- munity will have a powerful influence upon the court in its quest for the proper rule ; but they will not necessarily be controlling. Law and morals, or law and ethics are not synonymous terms. It is true that a few ancient cases can be found in which judges have said that "the law is what is right," or that "the principles of Christianity are part of the common law," but expediency and policy frequently de- mand rulings quite irreconcilable with common conceptions of morality. "Legal rules are not merely that part of the moral rules existing in a given society which the State thinks proper to enforce. It is easily recognized that there are, and must be, rules of morality beyond the commandments of law; no less is it true, though less commonly recognized, that there are and must be rules . of law beyond or outside the direct precepts of morality. There are many things for which it is needful or highly convenient to have a fixed rule, and comparatively or even wholly indifferent what that rule shall be. ... In England men drive on the left-hand side of the road, in the United States and nearly all parts of the Continent of Europe on the right. Morality has nothing to say to this, except that those who use the roads ought to know and observe the rule, whatever it be, prescribed by the law of the country."* "On grounds of public policy there are and always will be, on the one hand, many cases in which persons damaged may recover compensation from others whose conduct was morally blameless; and, on the other hand, many cases in which persons damaged can- not obtain compensation even from those whose conduct was morally most reprehensible. "Instances of successful actions against persons free from fault readily suggest themselves. The master, who has used all possible ^ See Cardozo, The Nature of the Judicial Process. * T P. and M. XXV-XXVI. care in the selection of his servants, is liable for damage by them when acting within the scope of their employment, although they carelessly or even wilfully disregard his instructions. The business is carried on for the master's benefit, and it is thought to be expedi- ent that he, rather than a stranger, should take the risk of the servant's misconduct. One keeps fierce, wild animals at his peril, and also domestic animals, after knowledge that they are dangerous. By legislation, indeed, in several states, one who keeps a dog must make threefold compensation, in one state tenfold compensation, for damage done by the dog, without proof of the keeper's knowl- edge of its vicious quality. The sheep farmers must be encouraged, even if some innocent persons have to pay dearly for the luxury of keeping a dog. A Massachusetts bank was entered by burglars who carried off and put into circulation a large quantity of bank notes which had been printed but never issued by the bank. The bank had to pay these notes. The bank must safeguard the notes it prints at its peril, to prevent the possibility of a widespreading mischief to the general public. "The results in these cases are much less disturbing to one's sense of fairness than in those in which the innocent victims of the un- righteous are allowed no redress. For example, a will is found after a man's death giving all his property to his brother. In the same box with the will is a letter, not referred to in the will, addressed to the brother, telling him that he is to hold the property in trust for their sister. The brother insists upon keeping the property for him- self. The court is powerless to help the defrauded sister. The rule that the intention of the testator must be found exclusively in the duly-witnessed document, in view of the danger of perjury and forgery, is the best security for giving effect to the true will of the generality of testators. The defenses of infancy, statute of frauds, statute of limitations, or that a promise was gratuitous are only too often dishonorable defenses, but their abolition would probably increase rather than diminish injustice. An English judge said from the bench: 'You are a harpy, preying on the vitals of the poor.' The words were false and spoken for the sole purpose of injuring the person addressed. The latter could maintain no action against the judge. It is believed to be for the public interest that no judge should be called to account in a civil action for words spoken while on the bench. "The law is utilitarian. It exists for the realization of the rea- sonable needs of the community. If the interest of an individual runs counter to this chief object of the law, it must be sacrificed. 7 That is why, in the cases just considered and others that will occur to you, the innocent suffer and the wicked go unpunished."^ Equity. One body of judicial precedents which the court will con- sult in its effort to determine what rule should be employed in the case at bar is composed of prior adjudications of courts of equity. A brief explanation of the origin and development of these courts is therefore necessary. After the Norman Conquest the royal courts of England gradually acquired a virtual monopoly of the judicial business of the country. They owed their authority to try each case, in theory at least, to a royal mandate issued for that particular case. A person having a claim to enforce against another procured from the king, through his chancery office, a writ which commanded the party against whom the complaint was made to right the wrong alleged or to show cause for not doing so. During the first half of the thirteenth century, a litigant seems to have had little trouble in securing a writ to suit his special needs; if the chancery office had none in stock, it manufactured a new one to order; but shortly after the middle of that century, chancery's power to create new writs was greatly limited. Consequently, unless there was a formed writ which exactly or nearly fitted the applicant's case, he must take such inadequate relief as the inferior local courts offered, or go remedi- less. The field of royal justice was therefore limited by the register of writs. "And thus," says Professor Maitland, "the register of writs in Chancery becomes the test of rights and measure of law. Then round each writ a great mass of learning collects itself. He who knows what cases can be brought within each formula knows the law of England. The body of law has a skeleton and that skeleton is the system of writs. Thus our jurisprudence took an exceedingly rigid and permanent shape; it became a commentary on formulas. It could still grow and assimilate new matter, but it could only do this by a process of interpretation which gradually found new, and not very natural, meanings for old phrases. As we shall see here- after, this process of interpretation was too slow to keep up with the course of social and economic change, and the Chancery had to come to the relief of the courts of law by making itself a court of equity."^ " Ames, 447-448. ^Maitland and Montague, Sketch of English Legal History, loi. In what manner did this transformation occur? It will be re- membered that the early Norman rulers of England had, besides the great council, which later developed into Parliament, a smaller or Select Council of advisers. Of this latter the Chancellor, usually a bishop, was an important member, a sort of royal secretary of state. He was in charge of the office from which intending litigants ob- tained their writs. If this office could not furnish the complainant an adequate writ, it did not necessarily follow that the royal govern- ment was powerless to give him relief. He might petition the king and his council for a suitable remedy; for it was always conceded that the chancery might create a new writ by order of the king and his council. And the Select Council was, in theory at any rate, al- ways sitting for the dispatch of business. To this council applications were frequently addressed begging the exercise of the royal preroga- tive in regard to matters generally cognizable by the courts. The council would, in reply, advise the applicant what steps to take, usually referring him to the proper court. But where on account of the heinousness of the oifense, or the rank or power of the alleged wrongdoer, or for other cause set forth in the application, a fair trial or the attainment of appropriate relief in ordinary course seemed impossible, the Council would advise the exercise of the kingly prerogative and take the case into its own hands, or give specific directions as to its handling in the regular tribunals. Many of the applications were referred by the king and council to the chancellor, and during the reign of Edward III an ordinance was enacted which referred all matters of grace to the chancellor. "The establishment of the Court of Chancery as a regular court for administering extraordinary relief, is generally considered to have been mainly attributable to this or some similar ordinance. It will be observed, that it conferred a general authority to give re- lief in all matters of what nature soever requiring the exercise of the Prerogative of Grace — differing from the authority on which the jurisdiction of the courts of common law was founded; for there the court held jurisdiction, in each particular case, by virtue of the delegation conferred by the particular writ, and which could only be issued in cases provided for by positive law. This is one of the great and fundamental distinctions betyreen the juris- diction of the courts of common law and that of the Court of Chancery."^ '' I Spence, Equitable Jurisdiction, 338. "Gradually," to quote Professor Maitland again, "in the course of the fourteenth century petitioners, instead of going to the king, will go straight to the chancellor, will address their complaints to him and adjure him to do what is right for the love of God and in the way of charity. Now one thing that the chancellor may do in such a case is to invent a new writ and so provide the com- plainant with a means of bringing an action in a court of law. But in the fourteenth century the courts of law have become very con- servative and are given to quashing writs which differ in material points from those already in use. But another thing that the chan- cellor can do is to send for the complainant's adversary and examine him concerning the charge that has been made against him. Gradu- ally a procedure is established. The chancellor having considered the petition, or 'bill' as it is called, orders the adversary to come before him and answer the complaint. The writ whereby he does this is called a subpoena — because it orders a man to appear upon pain of forfeiting a sum of money, e.g. subfoena centum Ubrarum. It is very different from the old writs whereby actions are begun in the courts of law. They tell the defendant what is the cause of action against him — ^he is to answer why he assaulted and beat the plaintiff, why he trespassed on the plaintiff's land, why he de- tains a chattel which belongs to the plaintiff. The subpoena, on the other hand, will tell him merely that he has got to come before the chancellor and answer complaints made against him by A. B. Then when he comes before the chancellor he will have to answer on oath, and sentence by sentence, the bill of the plaintiff. . The defendant will be examined upon oath and the chancellor will decide questions of fact as well as questions of law. "I do not think that in the fourteenth century the chancellors considered that they had to administer any body of substantive rules that differed from the ordinary law of the land. They were ad- ministering the law but they were administering it in cases which escaped the meshes of the ordinary courts. The complaints that come before them are in general complaints of indubitable legal wrongs, assaults, batteries, imprisonments, disseisins and so forth — wrongs of which the ordinary courts take cognizance, wrongs which they ought to redress. But then owing to one thing and another such wrongs are not always redressed by courts of law. In this period one of the commonest of all the reasons that complainants will give for qpming to the Chancery is that they are poor while their adversaries are rich and influential — too rich, too influential to be left to the clumsy processes of the old courts and the verdicts of juries. However, this sort of thing cannot well be permitted. The 10 law courts will not have it and parliament will not have it. . . . And so the chancellor is warned off the field of common law — he is not to hear cases which might go to the ordinary courts, he is not to make himself a judge of torts and contracts, of property in lands and goods. . . . ' "In the course of the sixteenth century we begin to learn a little about the rules that the chancellors are administering in the field that is thus assigned to them. They are known as 'the rules of equity and good conscience.' As to what they have done in remoter times we have to draw inferences from very sparse evidence. One thing seems pretty plain. They had not considered strictly them- selves bound by precedent."" Under these circumstances the rules administered must have been rather elastic and indefinite. Chancery was greatly disliked by com- mon law lawyers. Selden called it "a roguish thing" because it had no measure more constant than the length of the chancellor's foot. But it gradually lost its elasticity; decisions of the Courts of Chan- cery or Equity were recorded and preserved, and finally came to have tne same efFept as precedents in their proper sphere, as the Common law decisions in courts of common law. And the judicial process of solving a problem in equity has become the same as that in solving a problem at law. The jurisdictions of this country which adopted the English com- mon law adopted also the English equity system; and the non- statutory rules administered by Courts of Equity are included in the term common law as ordinarily used. Originally, here as in England, the courts which administered these rules of equity and good conscience were separate tribunals. Later the same court sat at times to hear common law cases and at other times to try suits in equity. The distinctions, however, between the two classes of cases as to practice, procedure and jurisdiction remained. If a liti- gant brought his case in equity when he ought to have sued at com- mon law, his case was dismissed, and he had the privilege of be- ginning his action at common law before the same court. Under most modern codes the distinction between actions at law and suits in equity is abolished; and a litigant is not ordinarily turned out of court merely because he has sought equitable relief where he should have asked for legal relief. In some jurisdictions where the distinc- tion persists, it is provided that a case which is brought on the wrong ' Mail. Eq. 5-6, 8. II side of the court may be transferred to the other without undue delay or expense. Admiralty. The rules governing maritime causes were not ad- ministered in medieval England by either the common law courts or by the Chancery, but by the Admiralty. In the words of Mr, Justice Story: "The admiralty is a court of very high antiquity. . . What was originally the nature and extent of the jurisdiction of the admiralty cannot now with absolute certainty be known. . . The forms of its proceedings were borrowed from the civil law, and the rules by which it was governed, were, as is everywhere avowed, the ancient laws, customs and usages of the seas. . . It cannot be denied . . that before and in the reign of Edward III the admiralty exercised jurisdiction, I. Over matters of prize and its incidents. 2. Over torts, injuries and offenses in ports within the ebb and flow of the tide . . and on the high seas. 3. Over con- tracts and other matters regulated and provided for by the laws of Oleron and other special ordinances, and 4. Over maritime causes in general."® This too was substantially the jurisdiction of admiralty courts in the American colonies and in other maritime countries; and it is upon this as a basis that admiralty jurisdiction in the United States has developed; but with us admiralty jurisdiction extends to all waters navigable for commerce, whether tidal or non-tidal. By the Constitution of the United States,^" the judicial power of the Federal Government comprehends all cases of admiralty and mari- time jurisdiction. Consequently no state court has succeeded to the functions of the Admiralty. When the Federal Court is trying a cause in admiralty, not only is its procedure diflFerent, but the sub- stantive rules may also vary greatly from those which would be applied by the same court in a non-maritime cause involving the same facts. Of course, pertinent valid legislation, prior judicial decisions in admiralty, and the known truths of the sciences affecting human experience and human conduct are operative here in in- fluencing the court's determination of the rule which is to be em- ployed to solve the problem presented, in the same manner as they are operative with courts handling a common law controversy or ' DeLovio v. Boit, 7 Fed. Cas. 418, 4.19, 4.21, No. 3776. ^° Art. 3, sec. 2. 12 an equitable issue. The only diversity is that the applicable statutes, precedents and known truths will probably be different. Law Merchant. The rules administered by courts of common law, equity and admiralty are binding upon all members of the community without distinction. The nature of the dispute or of the relief demanded determines which court has jurisdiction. The cus- toms and usages of the sea originally applied in admiralty were in large part the customs and usages of marine merchants; and as early as the thirteenth century it was recognized in England that all mercantile transactions, maritime and non-maritime, were gov- erned by a body of rules inapplicable to non-mercantile matters. In the courts of fairs and markets these non-maritime rules prevailed. But these courts were of a temporary and inferior character, and their functions were later absorbed by the royal courts of common law. No separate tribunals were established to administer the non- maritime law merchant. It had a marked effect upon the develop- ment of the common law, and many of its rules were adopted in toto by the common law courts; but it did not succeed in becoming an independent branch or department of jurisprudence; nor were its provisions ever regarded either in England or in America as law for a particular class of persons as distinguished from a clasS of controversies or transactions.^'^ Canon Law. In the Middle Ages the royal courts of England had to struggle not only against the efforts of the Lords to retain au- thority for their local courts but also against the vigorous claims of the ecclesiastical courts to a wide and important jurisdiction. In the twelfth and thirteenth centuries the Roman Catholic church had a magnificent system of courts with the Roman curia as the tribunal of last resort. They asserted jurisdiction over all causes, civil and criminal, in which an ecclesiastic was the defendant or the accused; and over certain causes because their subject matter had to do with church economy or with the enforcement of moral or spiritual duties. Among these were causes concerning marriage, divorce, legitimacy, wills and promises made by oath or pledge of faith. This is no place to describe the struggle by which the church courts were ultimately confined to the regulation of the polity and internal dis- cipline of the church. It is suflScient to say that the canon law as formerly administered in the ecclesiastical courts has had a con- " I P. and M. 466-467. 13 siderable influence in shaping our law of marriage, divorce, legiti- macy and administration of decedents' estates; and that no system of canon law ever existed in the United States wherein a churchman was not subject to the law of the land. Military Law. The rules administered by military tribunals, i.e., by military commissions, provost courts and courts-martial, unlike those administered by courts of common law, equity and admiralty, are applicable only to persons of a specified class. In the United States this class may be generally described as consisting of members of the military establishment, retainers to the camp and persons accompanying or serving with the armies of the United States. Military law, which is composed of these rules, is thus defined in the Manual for Courts-Martial: "The legal system that regulates the government of the military establishment. It is a branch of the municipal law, and in the United States derives its existence from special constitutional grants of power. It is both written and unwritten. The sources of written military law are the Articles of War enacted by Congress June 4, 1 920; other statutory enactments relating to the military service; the Army Regulations; and general and special orders and decisions promulgated by the War Department and by department, post, and other commanders. The unwritten military law is the 'custom of war,' consisting of customs of service, both in peace and war."i2 Military tribunals are courts of limited jurisdiction, but within their limited sphere they are supreme and their decisions are not re- viewable by the civil courts. Conclusion. In the foregoing discussion no attempt has been made to deal with such rules as may exist by which nations are ex- pected to be governed in their intercourse with each other. It has concerned itself only with those rules by which each member of a community is required to regulate his conduct toward the other members as individuals and in their aggregate capacity. In other words, it has treated only of Muncipal Law as distinguished from International Law. Its only object has been to give to those about to begin the study of the law a working conception of the nature and scope of the subject matter which they will have to investigate. ^^ Manual for Courts-Martial, Courts of Inquiry and of Other Procedure under Military Law, paragraph 2 (d) . 14 Chapter II MAIN TOPICS OF THE LAW Divisions for Convenience. "The law is a seamless and partitionless whole. But it is a thing so vast that the mind can have no valuable comprehension of it, except in parts artificially separated from the mass for examination and study."^ "It is not possible to make any clear-cut division of the subject matter of legal rules. The same facts are often the subject of two or more distinct rules, and give rise at the same time to distinct and different sets of duties and rights. The divisions of law, as we are in the habit of elliptically naming them, are in truth divi- sions not of facts but of rules; or if we like to say so, of the legal aspects of facts. Legal rules are the lawyer's measures for reducing the world of human action to manageable items, and singling out what has to be dealt with for the time being, in the same way as number and numerical standards enable us to reduce the continuous and ever-changing world of matter and motion to portions which can be considered apart."^ Any division of the law into topics must therefore be more or less arbitrary, and the divisions vi^ill, of necessity, gradually blend into each other. The three main subjects into vv^hich it is generally divided are Contracts, Crimes, and Torts. Contracts. Among the rules which the courts of a society that has reached a comparatively advanced stage of civilization are called upon to declare and administer, are those having to do with the en- forceability and enforcement of promises. Such promises as the courts hold to be enforceable are termed contracts. And the law of contracts consists in general of those rules which define what conduct, verbal or non-verbal, amounts to a promise, what circum- stances must attend a promise to make it enforceable, what facts operate to justify or excuse non-performance or to discharge the promise, and what relief, if any, is to be given to persons injured by non-performance. ^Bishop, Non-Contract Law, i. ^ Pollock, First Book of Jurisprudence, 79. 15 Crimes. Every member of an organized society owes to the state, that is, to all the other members in their aggregate capacity, a duty to conform to such regulations as are prescribed by the state for its welfare as a state, as distinguished from the regulations pre- scribed for the welfare of the individual members as such. A viola- tion of that duty constitutes a crime, and the violator is subject to punishment in a proceeding by the state. The law of crimes, or criminal law is composed of such regulations and of the rules which declare and delimit such duty, define the acts and omissions con- stituting its violation, and fix the penalties therefor. It would be easy to pick flaws in the foregoing statements were they offered as precisely correct definitions. But they are sufiiciently exact to fur- nish a working idea of the scope of this field of the law. Torts. To frame a nicely accurate definition of a tort, too, would be an unprofitable, if not impossible task. It has been attempted by many commentators and text-writers with indifferent success. Pro- fessor Wigmore would wish the term out of existence: "Never did a Name so obstruct a true understanding of the Thing. To such a plight has it brought us that a favorite mode of defining a Tort is to declare merely that it is not a Contract. As if a man were to define Chemistry by pointing out that it is not Physics nor Mathematics!"^ But for purposes of discrimination it may be helpful to know what a thing is not; and a consideration of several standard definitions may give a practical notion of the characteristics of a tort and of the features which distinguish it from a crime or breach of contract. Salmond says: "We may accordingly define a tort as a civil wrong for which the remedy is an action for damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation."* Bishop phrases it thus: "The word 'tort' means nearly the same thing as the expression 'civil wrong.' It denotes an injury inflicted otherwise than by a mere breach of contract; or to be more nicely accurate, a tort is one's disturbance of another in rights which the law has created ^ Wigmore, Select Cases on the Law of Torts, VII. * Salmond, Law of Torts (5th ed.), 7. i6 either in the absence of contract, or in consequence of a relation which a contract had established between the parties."^ Professor Burdick has oflFered the following: "A tort is an act or omission which unlawfully violates a per- son's right created by the law, and for which the appropriate remedy is a common law action for damages by the injured person."^ Comfarisons. Some attributes a tort has in common with a breach of contract. The duty violated in both cases is one owed to an in- dividual as such and not to the state; in both the relief obtained consists of damages; in both the remedy is an action brought by the injured party. But in contract the duty comes into existence only when the duty-bearer has voluntarily undertaken to assume it; the duty is merely to perform a promise. So, roughly speaking, it is sometimes said that the duty is created by the acts of the parties. What is meant is, that when a person's conduct amounts to what society through its properly constituted agencies declares to be an enforceable promise, society lays on him the duty to fulfill that promise. In tort, on the other hand, the duty is put upon the in- dividual member of the community often merely because he is such member, and usually, if not always, regardless of whether he has voluntarily undertaken to assume it. It may be that the particular duty is imposed only because the duty-bearer has brought himself into a particular consensual relationship with another or others, for example, that of carrier and passenger, or of landlord and tenant. But the duty, violation of which is named a tort, is not merely that of fulfilling a promise made to that other or those others. And that is what Professor Burdick means when he says that the right in- fringed by a tort is "created by law." The characteristics which the tort and the breach of contract have in common distinguish each of them from the crime. The duty violated by a crime is one owed, not to an individual member of society as such but to the state; no relief is obtained by the injured party, and the wrongdoer is pur- sued, not in an action by the wronged, but in a proceeding instituted and prosecuted by and in the name of the state, the object of which is the punishment of the wrongdoer. But as in the case of the tort, the duty is imposed without regard to the will of the duty-bearer. Examfles. The same act or omission may or may not constitute ^ Bishop, Non-Contract Law, 3 . * Burdick, Torts (3d ed.), 12. I? both a tort and a crime according to the circumstances of the par- ticular case. For example, if A while hurrying along the public street, carelessly but unintentionally collides with B and injures him, A invades B's private right to personal immunity, but he does no wrong to the state as such: he commits a tort but not a crime. If A is merely drunk and disorderly on a public street, or if A in the seclusion of his home intentionally maims himself, he violates his duty to conform to a regulation prescribed by the state for its welfare as such, although he does not infringe the right of any individual as an individual: he commits a crime but not a tort. But if A fntentionally beats B upon the public street or if he intentionally maims B, he not only transgresses his duty not to interfere with B's person but he is also guilty of an infraction of a rule established by the state for its welfare as a state. He is subject to a civil action for damages by B and to a criminal prosecution by the state. Against B as an individual he commits a tort; against the state he commits a crime. Similarly the same act or omission may or may not be a tort and a breach of contract, or a tort, a crime and a breach of con- tract. If B has a chattel of his stored in a warehouse, and A, by acting as a reasonably prudent man would not act, injures that chattel, he violates his duty not to interfere unjustifiably with B's property, and commits a tort. If A, in consideration of a sum of money to him paid by B, promises B to guard and protect that chattel from injury and theft, and as before negligently injures it, he commits a tort as before, but he also breaks an enforceable promise and is guilty of a breach of contract. If after making the promise A steals the chattel, he breaks his contract as before; he also violates B's right to have his property free from unjustifiable interference, and he transgresses a duty owed by him to the state as such. His single act constitutes a breach of contract, a tort and a crime. Quasi-Contract. Furthermore there are certain non-contractual duties for the violation of which redress is given in the form of action usually reserved for contracts. They are imposed by law in the sense that the consent or lack of consent of the duty-bearer to their creation is entirely immaterial. The wrong done by the trans- gression of such a duty would fit Professor Burdick's definition of a tort, but it is usually classified as a breach of quasi-contract, and in some instances the operative facts constituting the breach of duty would not support a tort action. Suppose that, after due process of law, B recovers a judgment against A upon a claim which A has i8 from the beginning vigorously resisted; suppose further that A has consistently declared that he would never pay the claim or any judgment founded upon it. A still refuses to pay. Now clearly A has not interfered with B's person or property in any way; he has made and broken no promise to B; he has not violated a rule laid down by the state for its protection as a state. But just as clearly he is refusing to perform a duty to B which society through its duly authorized agent, the court rendering the judgment, has imposed upon him. And if the entire field of law is occupied by Contracts, Crimes and Torts, the definition of one of these divisions must be so framed as to include this case. Or a remedy may be pro^nded for this breach of duty as if it did belong in one of these fields. The latter alternative has been chosen. B may bring his action and allege that A promised to pay the judgment. Of course he can never sup- port this allegation by proof, but the courts have said that he need not so support it, because the promise will be implied. What they mean is that the duty is imposed upon A regardless of any intention, desire or promise on his part, and that B may have the same remedy as if A had promised; the duty is quasi-contractual, as if created by contract. Again, take the following case. A, falsely pretending to act as P's agent, collected from D a sum of money which D owed to P, and refused to pay it over to P or to return it to D. When A got the money from D, he committed a tort against D because D had the right not to have his money taken from him by such a fraud; as against the state in most jurisdictions A was guilty of a crime. But as against P, A cannot be said to have committed a tort; he made no misrepresentation to P and in no way interfered with his person or property. Nor did he break any promise to P. Conceivably P should have no cause of action against A. Yet it is well settled that P may bring his action alleging that A promised P to pay the money over to P, and may succeed in the action without any proof of the promise. Here again A's duty to P is quasi-contractual. These two examples are sufiicient to show that certain conduct may be a breach of a quasi-contract only, and that certain other conduct may, ac- cording to the aspect in which it is regarded, constitute a crime, a tort and a breach of quasi-contract. If to the facts in the second case is added an express promise by A to D to pay the money over to P, A's conduct would also be a breach of contract. Further Subdivisions. The foregoing discussion has demonstrated the truth of Bishop's statement that the law is a partitionless whole, 19 and that its division into subjects is useful only for convenience in study. And during the study of a particular topic the student must never forget that the total operative effect of any fact upon the legal relations of any person involved cannot be determined without a survey of the entire field. The division of the field of law into Contracts, Crimes, Torts and Quasi-Contracts is not suflScient for intelligent intensive study, and often it is advisable to make divisions which cut across two or more of these grand divisions. For example, the average law school curriculum oflFers not only fundamental courses in Contracts, Crimes and Torts; it also provides for a study of special forms of Contract in courses on Sales, Negotiable In- struments, Suretyship, and Mortgages. The law of torts, contracts and quasi-contracts as applied to Property, Public Service Com- panies, Corporations, Partnership, and Agency is considered in sepa- rate courses. The effects given by the law to certain relationships, most of them having their inception in contract, are treated in courses on Public Service Companies, Agency, Partnership, Corpora- tions, and Domestic Relations. Attention to rules governing pro- cedure in the courts is given in courses on Pleading, Practice and Evidence; and those rules which were applied in the courts of equity as distinguished from the courts of common law form the subject matter of courses in Equity and Trusts. Indeed the extent to which the subdivision of the field may be carried depends upon the thorough- ness and intensity with which any specified aspect of a subject is to be studied. Chapter III PROCEDURE Since the law may be taken to be the sum of rules administered by courts of justice and since such administration denotes the ap- plication of these rules to specific cases, it is natural to inquire in what manner a controversy is brought to the attention of the courts, how questions of law are raised and determined, how the facts are made known; in short, by what procedure the courts are moved to action. To answer these queries in detail would require volumes. It must sufliice to indicate briefly what takes place in a lawsuit and how 20 the court comes to deliver the opinion in which it sets forth its reason for its adjudication. But at least so much is necessary as a basis for an intelligent reading and a proper evaluation of the report of a judicial decision. Beginning the Action. Suppose that Samuel Student and Peter Policeman have been engaged in an altercation. Student asserts that while he was peaceably walking along the street, Policeman with- out cause struck him with a club and severely injured him. He re- tains Lewis Lawyer to bring action against Policeman. After mak- ing as thorough an investigation as practicable, Lawyer is of the opinion that Policeman was at fault and ought to respond in damages. If this had happened under the old common law system in England, Lawyer's first task would have been to determine what writ and form of action would afford the proper remedy. In the next chapter the scope of the various forms of action and the im- portance of selecting the correct form are explained. SuflSce it to say now that in this instance Lawyer would have gone or have had Student go to the Chancery Office for a writ in Trespass, which would have issued in substantially the following form : The King to the Sheriff, greeting: If Samuel Student shall make you secure for prosecuting his claim, then put by safe gages and pledges Peter Policeman that he be before us on the Morrow of All Souls wheresoever we shall be in England to show cause why with force and arms he made an assault upon the said Samuel Stu- dent at N and beat, wounded and illtreated him so that his life was despaired of and other enormities to him did to the great damage of him the said Samuel Student and against our peace. And have there the names of the pledges and this writ. Witness, etc.^ The sheriff would have summoned the defendant Policeman as commanded in the writ. On the designated day Policeman, let it be supposed, would have appeared and Student would have been there too. In earlier times these appearances would have been ac- tually made in open court; and, as is explained in Chapter V, the parties by oral pleading would have reached an issue. In later times the appearances would have been made by serving or filing written statements of appearance, and each pleading would have been writ- ten and would have been served or filed at prescribed periods of time. 1 See Mait. Eq. 383. 21 Beginning the Action in New York. If this controversy occurs in New York to-day, Lawyer is not at the trouble of going to Chancery. He may start his action without an application to any court or official. He will first make out a summons in the following form: Supreme Court of New York, County of New York. Samuel Student, Plaintiff, \ against f Summons: Peter Policeman, Defendant. ' To the above named Defendant, You are hereby summoned to answer the complaint in this action and to serve a copy of your answer or, if the complaint is not served with this summons, to serve a notice of appearance, on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint.^ Lewis Lawyer, Attorney for Plaintiff, 24 Broadway, Borough of Manhattan, New York City. He will cause this summons to be served upon the defendant. Police- man, by the sheriff or some indifferent jjerson, who will make the service by handing to and leaving with Policeman a correct copy thereof. The complaint may, but need not, be attached to and served with the summons. If not so attached, the defendant may procure a copy of it by serving on plaintiff's attorney a notice of appearance' and a demand for such copy. The complaint will read substantially as follows: (Title as in the Summons, with "Complaint" substituted for "Summons.") Comes now the plaintiff in the above-entitled action and for cause of action against defendant complains and alleges I. On January' i, 1924, the above-named defendant in the City and County of New York assaulted and beat the plaintiff, and with a stick and with his fists gave and struck the plaintiff a ^ New York Civil Practice Rule 45. 22 great many violent blows and strokes on and about his head, arms and body, and thereby broke plaintiff's right arm above the elbow and fractured plaintiff's skull. 2. By reason of the injuries so inflicted upon plaintiff by de- fendant, plaintiff suffered great bodily and mental anguish, and became permanently disabled and crippled for life, to his damage in the sum of $10,000. 3. Prior to the infliction of said injuries plaintiff was employed as an instructor in the X Y Tutoring School and was receiving a salary of $200 per month. 4. By reason of the injuries so inflicted upon plaintiff by de- fendant plaintiff was unable to attend to his business as tutor for a period of six months, and necessarily paid out for medical and surgical services the sum of $600. Wherefore plaintiff prays judgment against defendant in the sum of $11,800, together with his costs and disbursements herein. Beginning the Action in C onnecticut. If the action is to be brought in Connecticut, the plaintiff or his attorney will apply for a writ of Summons to a justice of the peace, a commissioner of the Superior Court (and all duly licensed attorneys are such commissioners) or a judge or clerk of the court to which the writ is to be returnable. His attorney will in practice have the writ all ready for signature, and it will be in the following form : To the Sheriff of the County of New Haven, his deputy, or either constable of the Town of New Haven in said county, greet- ing: By authority of the State of Connecticut, you are hereby com- manded to summon Peter Policeman of the City and County of New Haven to appear before the Superior Court to be holden at the City of New Haven within and for the County of New Haven, on the first Tuesday of March a.d. 1924. at 10 o'clock in the forenoon, then and there to answer unto Samuel Student of the City and County of New Haven in a civil action, wherein the plaintiff complains and says: 1. On January I, 1 924, the defendant assaulted the plaintiff and beat him with a cane and with his fists. 2. The plaintiff was then a tutor, receiving a salary of $200 per month. 3. Said battery broke plaintiff's right arm above the elbow and fractured his skull, and he was thereby disabled from attending 23 to his business for six months thereafter and compelled to pay $600 for medicines and medical care and attention. The plaintiff claims $1 1,800 damages. I, John Williams, the subscribing authority, hereby certify that I have personal knowledge as to the financial responsibility of the plaintiff, and deem it sufficient. Of this writ with your doings thereon make due return. John Williams, Justice of the Peace. The sheriff or constable will serve the writ by leaving an attested copy of it with defendant or at his usual abode. Beginning the Action in Some Other Jurisdictions. In some juris- dictions the action is begun by filing with the Clerk of the Court the complaint and a Praecipe for a Summons. The Praecipe will usually be entitled with the name of the court and county, and with the names of the parties, as in the sample summons used in New York, set out above, and will be signed by the plaintiff or his attorney. The body of it will be substantially as follows: "The clerk of the District Court will please issue summons in the above-entitled action returnable according to law." or "The clerk of the said court will issue a summons in the above- entitled action directed to the sheriff of the County of X, and re- turnable to the October term 1924." The clerk of the court will issue a summons according to the re- quest in the Praecipe, and the proper ofiicer will serve it upon the defendant. Raising and Deciding an Issue of Law. When Policeman is served with the summons, if he is wise, he will retain an attorney. Let it be assumed that he employs Arthur Andrew. Andrew's first task will be to examine the declaration or complaint. If it has not been served with the summons but is on file in the office of the clerk of the court, he may inspect it there and make a copy of it; if not on file, he may secure a copy from plaintiff's attorney. If after scrutinizing the complaint he is convinced that the facts alleged therein disclose no legal claim against Policeman, he may desire to challenge its sufficiency. He will have to make an appearance for Policeman. In some jurisdictions this is done by filing with the clerk of the court a statement that Peter Policeman appears by his attorney. 24 Arthur Andrews; in others, by delivering to plaintiff's attorney a notice of such appearance or by serving on him a pleading in re- sponse to the complaint. In attacking the complaint, at common law and under most codes, he will interpose a demurrer. (See Chapter V.) In New York and a few other jurisdictions he will make a motion for judgment dismissing the complaint on the ground that it does not state facts sufficient to constitute a cause of action. In either event the case will be brought on for argument before the court without a jury. The court will hear argument upon the ques- tion whether, assuming all the facts stated in plaintiff's complaint to be true, defendant has committed any wrong against plaintiff for which the law will give him redress in this action. But it will re- ceive no testimony at all ; the decision must be made upon the allega- tions of the complaint alone. If the court holds plaintiff's pleading insufficient, it will order judgment for defendant unless plaintiflF prays and gets leave to amend: if it holds the pleading sufficient, it will order judgment for plaintiff unless defendant prays and gets leave to interpose a plea or answer. Under modern codes it is often provided that the order for judgment must contain such leave. Some- times, but not often, the court in making its decision will render an opinion which will be printed in the regular law reports. If no amendment is made or plea interposed, judgment will be entered according to the order, unless by the local practice the order is appealable, and an appeal therefrom is perfected. Raising an Issue of Fact. If Andrew determines that the com- plaint does require an answer on the facts, he will ascertain from Policeman his version of the occurrence. Let it be assumed that Policeman denies that he struck Student. After making an appear- ance for Policeman in the manner required by the local rules of practice, he will put in a plea of general issue or an answer of gen- eral denial (see Chapter V), and thus raise an issue of fact for trial by a jury. Bringing Issue of Fact on for Trial by Jury. It might be sup- posed that after the issue between Student and Policeman has thus been made by the pleadings, it would automatically come before the court and jury for trial. But not so. In most jurisdictions it might forever lie undetermined in the absence of further action by one of the parties. Courts hold series of sessions, known as terms, periodically. If Student's case is pending in the New York Supreme Court and he wants it tried, his attorney must, at least fourteen days 25 before the opening of a term of the court, serve upon Policeman's attorney a notice stating that the action will be brought on for trial at that term; he must also at least twelve days before the opening of the term file with the clerk of the court a note of issue, which is merely a request to the clerk to put it on the list of cases which are to be set for trial at that term. If the case is pending in the Connecticut Superior Court, Student's attorney will request the clerk in writing to put the case on the trial list; and the clerk will notify Policeman's attorney, ordinarily by mail, of this request. Usually the request should be made seven days before the opening of the term, but it may be made later, though never less than seventy-two hours before the opening of court on the day when the case is assigned for trial. In practically all other jurisdictions some such steps must be taken by one of the parties. The foregoing notices and requests merely get the case in its regular order upon the trial list. It still has to be assigned for trial according to the local practice. In some places, on the first day of the term, the entire list or calendar is called, a determination is made whether any of them are not ready for trial during the term, and the cases for trial by jury are separated from those for trial by the court. After the unready cases are eliminated, the others may be set for trial, each for a day certain, or all in the order in which they appear on the list as revised. In other places there is no call of the list, but at stated intervals a session ofthe court is held for the purpose of selecting from it cases for trial during a comparatively short period then next ensuing. For example, in Connecticut a brief session is usually held on Friday for the purpose of setting cases to be tried during the following week. In still other places, the selection of cases from the list is made by subordinate administrative officials of the court. Trial of the Issues. Assume that the case of Student against Police- man has been set for trial in Court Room number one immediately after the case of Jones v. Smith. Both Lawryer and Andrew will have to be ready to go on immediately at the conclusion of the Jones- Smith trial. They will be on hand with their respective clients and witnesses. The court will order the clerk to call the next case; and when he has said "Samuel Student against Peter Policeman," and the attorneys have answered that they are ready, the court will direct the clerk to call a jury. Same — Getting the Jury. A juror must possess certain general 26 and certain special qualifications to be eligible to act in a particular case. For example, he must usually be an elector of the jurisdiction, must not be related within a certain degree of consanguinity to either party and must be in such a state of mind toward the parties and the case as to be able to try the issue fairly and impartially. For alleged lack of any of these qualifications he may be challenged by either party, and if the challenge is found true, he will not be per- mitted to serve. Such challenges are termed challenges for cause. In addition by statute each party may without assigning any reason therefor, exclude a specified number of perfectly eligible jurors by peremptory challenge. The procedure with reference to challenge and to ascertaining and disclosing the reasons for challenge is not uniform. Among the various practices are the following: (i) The parties and their attorneys are confronted with the entire num- ber of jurors summoned for service for the term and not then en- gaged in the trial of other causes. The attorneys, either directly or through the judge, are permitted to ask them as a body questions touching their qualifications to sit as jurors. If any juror discloses a probable ground for disqualification, he may be challenged and further examined ; and even extrinsic evidence may be given to prove his ineligibility. If the challenge is found true, he is eliminated; otherwise not. After all ineligibles are thus removed, the clerk by lot selects twelve or twelve plus the number of peremptory chal- lenges allowed, and after the peremptories are exercised or waived, the jury of twelve is sworn. (2) From among the jurors summoned for the term, usually called the panel or the array, the clerk selects by lot to the number of twelve plus the number of peremptories. The attorneys are allowed, directly or through the judge, to examine each of these individually as to his qualifications, and to eliminate by challenge for cause any who show themselves disqualified. If any juror is thus removed, he is replaced by another who is subject to examination as if originally drawn. After the requisite number of qualified jurors is obtained, the attorneys exercise their peremp- tory challenges, and the remaining twelve are sworn to try the case. (3) In England and Canada the jurors are selected by lot from the panel. As each juror comes to the box either attorney may challenge him for cause or peremptorily. If peremptorily, then no examination is necessary; if for cause, then he may put questions to the juror or present other evidence to support the challenge. But no questioning of a juror prior to challenge is allowed. (4) As each juror is chosen 27 by lot by the clerk, he is examined by the attorneys, in a prescribed order, as to his qualifications. The attorney who first examines must exercise his challenge for all reasons before turning him over to the other attorney. If he finds no ground for challenge for cause, and yet desires the juror removed, he must exercise his peremptory challenge at once. When twelve men have been passed by both attor- neys, they are sworn to try the issues. Same — Ofening Statements. After the jury is sworn, the plain- tiff's attorney makes his opening statement. In Student against Policeman, Lawyer will explain to .the jurors the exact questions raised by the pleadings which they will have to answer by their ver- dict, what Student asserts to be the facts and how he intends to support these assertions by evidence. In New York, he will be fol- lowed immediately by Andrew, who will outline Policeman's case and inform the jurors how he intends to meet and overthrow Stu- dent's claims. There is no place for argument in the opening. It is made simply to present to the court and jury an outline of the case, so that they may more easily and intelligently follow and apply the testimony. In some jurisdictions Andrew's opening will not be made until just before he is ready to offer his evidence. Same — Evidence. Next Lawyer calls his first witness, who is sworn to tell the truth and nothing but the truth. By means of ques- tion and answer he gets from the witness what he knows about the matter in issue. Then Andrews has an opportunity to cross-examine ; and if he brings out any new matter or makes uncertain anything given in testimony on Lawyer's examination, the latter may re-ex- amine the witness on these points. And in some instances the witness may be subject to several re-examinations by each attorney. The same procedure is followed with each witness offered in Student's behalf. Student will doubtless be one of them. After presenting all his wit- nesses on his main case, Lawyer will announce that he rests, that is, that he has no further evidence to offer. Thereupon Andrew will proceed with Policeman's side of the case. If he has not already done so, he will make his opening statement. Otherwise, he will at once call his witnesses, who will be examined, cross-examined and re- examined as were Student's witnesses; after which he will state that he rests. If the course of the evidence warrants it. Lawyer will have the privilege of presenting evidence in rebuttal, and Andrew in surrebuttal. Same — Motions During Trial. At the close of plaintiff's evidence. 28 the defendant may under modern practice move that plaintiif be nonsuited or that the action be dismissed on the ground that no reasonable jury could find a verdict in favor of plaintiff; and at the close of all the evidence either party may move for a directed verdict on the ground that no reasonable jury could return a verdict except in favor of the movant. In some jurisdictions this latter motion may be made at the close of plaintiff's testimony. If either motion is granted, it of course puts an end to the trial. Same — Requests to Charge. At the close of the testimony either attorney may present to the judge virritten requests that he deliver certain instructions to the jury. These requested instructions will declare that the jurors in considering the testimony must apply cer- tain rules of lawr in ascertaining the facts and in determining the effect to be given to the facts when found. In some jurisdictions the court is not obliged to give the jury any instructions which are not so requested. The court will advise the attorneys which of the requested instructions it will give in order that they may frame their summing-up arguments accordingly. Same — Summing-uf by Attorneys. These arguments usually come next, though in some states they follow the charge of the court. Ordinarily Lawyer, since Student has the burden of establishing his case, will open the argument, Andrew will answer him, and Lawyer will reply in rebuttal. In some jurisdictions Andrew will open the argument and Lawyer will close, each side having but one speech. In these arguments each attorney will be confined to the evidence and will not be permitted to indulge in prejudicial immaterialities. He will try, by his analysis of the testimony and of the method of applying it to the issues, to persuade the jury that its verdict should be in his favor. Same — Charge of Court. The court will then deliver its charge to the jury. This is usually done orally; in some places the court is required to reduce the instructions to writing and let the jury take them to the jury room. In almost all of the states of the Union, this charge must not contain any comment upon the weight of the evi- dence or the credibility of the witnesses, but must be confined to expounding the rules of law which the jury should apply in reaching their verdict. In the Federal Courts, in Connecticut and a few other states, the court may express its opinion upon the weight of the evidence and the credibility of the witnesses. In England the charge is called the summing-up by the court and consists of a review 29 and analysis of the testimony and the opinion o£- the court on how it should be handled, as well as a statement of the rules of law governing the case which are to be applied by the jury. Same — Verdict. At the conclusion of the charge the court places the jury in the custody of an officer, who conducts them to the jury room. In this room they deliberate upon the case in secret until they reach a verdict. In some places they deliver the verdict orally in court through their foreman ; in others they return a written verdict signed by the foreman, and express oral assent thereto when it is read in open court. After the verdict is received by the court, the jury is discharged and the trial is at an end. Motion in Arrest of Judgment. After the verdict, which may be assumed to be in Student's favor, the defendant may move that judgment be arrested on the ground that the declaration or complaint is fatally defective in wholly failing to state a cause of action. The question raised by this motion is the same as that raised by a general demurrer; but the court's attitude at this stage of the proceeding is to resolve every doubt in favor of the pleading, because it is now supported by the verdict. In determining this motion, the court may render an opinion which will find its way into the law reports. Motion for Judgment Notwithstanding the Verdict. If the ver- dict had been in favor of Policeman, Student might have moved for judgment notwithstanding the verdict, had Policeman's sole defense been one in confession and avoidance, on the ground that the facts set up in the plea or answer were totally insufficient to constitute a justification, excuse or discharge. Here too the question would be essentially the same as on a general demurrer to the plea, except that the court would indulge every reasonable presumption to support the pleading. In this case too the court might render an opinion which would be reported. Under the codes, a provision is frequently found authorizing the court after verdict to order judgment notwithstanding the verdict if upon the evidence it ought to have directed the jury to return a verdict in favor of the party against whom it was in fact returned. Motion for New Trial. Under modern practice the defeated party may usually make a motion for a new trial either before or after judgment has been entered upon the verdict. This motion is usually made on the ground that the trial court over the objection and excep- tion of the movant made erroneous rulings during the trial, for 30 example, in receiving inadmissible evidence, or in giving the jury an improper instruction. Judgment. If the motions made after the rendition of the ver- dict are denied, Student will cause judgment to be entered upon the verdict. The verdict, of course, is merely a finding of the jury. In Student against Policeman, it will read: "We, the jury, find a verdict in favor of plaintiff and assess his damages at $5,000." The judg- ment is an order of the court that a party do have certain relief; it will read in part: "It is ordered and adjudged that plaintiff, Samuel Student, have and recover of defendant, Peter Policeman, the sum of $5,000 together with the sum of $75.90 costs and disbursements as taxed, amounting in all to $5,075.90." Review by Affellate Court. When an issue of law has been finally determined by a trial court upon demurrer, or an issue of fact has been decided after trial by jury or by the court without a jury, the defeated party may usually have the proceedings of the trial court reviewed by a higher tribunal. A record of the proceedings must be made up and transmitted to the reviewing court according to the rules of local practice. Everywhere this record must contain a correct statement of so much of what occurred at the trial as to show the alleged mistakes of the trial court, the defeated party's objections and exceptions to them, and their bearing upon the issues which were tried, and it must be certified as correct by the trial court. The ortho- dox method of securing a review in a common law action is by writ of error; in equity by an appeal. Under modern codes the usual method is by a statutory appeal. In Student against Policeman, the latter's remedy will be by writ of error or statutory appeal. His at- torney will generally be required to take the following steps, though the order of procedure may vary in different jurisdictions. ( I ) No- tify the court, usually through its clerk, and opposing counsel of his appeal to the higher tribunal. (2) Have made up a record — a bill of exceptions or settled case — ^which he proposes as an adequate and proper statement of so much of the proceedings before the trial court as will be pertinent to the matters to be reviewed; this will be sub- mitted to Lawyer, who will have opportunity to suggest corrections and additions; and after a hearing, if necessary, the trial court will certify the record as originally made up or with such changes as it deems necessary. (3) See to it that this record and the required origi- nal papers are transmitted to the higher court. (4) Prepare a brief, which specifies the errors upon which he relies for reversal and the 31 reasons and authorities supporting his contentions; and furnish the required number of copies of it to the court and to Lawyer. (5) In some jurisdictions see to it that the case is properly put upon the calendar of the higher court for argument, and notify Lawyer of it. Lawyer will prepare a brief in opposition and furnish copies of it to Andrew and to the court. At the appointed time Andrew and Lawyer will appear before the higher court and present their oral arguments. The court will take the case under advisement and later render its decision. A record will be made of all the proceedings in the higher court, and a portion of that record including the court's opinion will usually be printed in the oiBcial reports of the court. Law Reforts and Books of Selected Cases. A description of the books in which cases decided by the courts of Great Britain and the United States are reported is given in Chapter VII. Books of Selected Cases for use in law schools are made up by selecting appropriate cases from these reports. Most of these selected cases consist chiefly of the reported proceedings in courts of last resort and intermediate appellate courts; some of them are records of proceedings before a trial court upon a demurrer, a motion in arrest of judgment or for judgment non obstante veredicto, or of proceedings before the full bench upon such a motion or upon a motion for a new trial; and a few of them are transcripts of records of proceedings at the trial in courts of first instance. Chapter IV FORMS OF ACTION "The forms of action we have buried, but they still rule us from their graves." Maitland. Origin of Forms of Action. Our procedure has its origin in the royal courts of England. Something of the genesis of the English system we must therefore understand, though it would be unprofit- able to attempt to describe in detail the process by which the king's court after the Norman Conquest gradually extended its jurisdiction and absorbed all the judicial business of the kingdom. At first the judicial functions of the Norman king were exceedingly limited, but 32 these limits W|ere not hard and fast; "the kingship established by conquest was too strong for that, still he could not exceed these limits without a struggle. That his court should fling open its doors to all litigants, should hold itself out to be a court for all cases great and small, for all men, whosesoever men they be, is a principle that only slowly gains ground. Despite all that was done by Henry II, despite the ebb of feudalism, we can hardly say that this principle is admitted before the coronation of Edward I."^ The method by which the king drew litigation into the royal courts was the issuance of a royal mandate, commonly called the original writ — that is, a writ originating a lawsuit or cause of action. This writ the litigant procured from the king through the Chancery. The situation during the reign of Henry II (1154-1189) is thus de- scribed by Pollock and Maitland ■?' "For a long time past the king at the instance of complainants has issued writs, which either bade their adversaries appear in the royal court to answer the complaint, or else comtnitted their causes to the care of the sheriff or of the feudal lord and commanded that right should be done to them in the county court or the seignorial court. Such writs were wont to specify with some particularity the subject matter of the complaint. The sheriff, for example, was not merely told to entertain a suit which the abbot of Abingdon was bringing against the men of Stanton; he was told to do full right to the abbot In the matter of a sluice which, so the abbot alleged, had been broken by the men of Stanton. As the king's interference becomes more frequent and more normal, the work of penning such writs will naturally fall into the hands of subordinate officials, who will follow precedents and keep blank forms. A classification of writs will be the outcome; some will be granted more or less as a matter of course, will be brevia de curm, writs of course; those which are directed to a feudal lord will be distinguished from those which are directed to a sheriff; those which bid the sheriff to do justice, from those which bid him summon the defendant to the king's own court; those which relate to the ownership of land from those which relate to debts. But the introduction of the possessory assizes gives to this system of writs a peculiar definiteness and rigidity. The new actions have a new procedure appropriate to them and are governed by carefully worded formulas. Thus the first writ issued in an assize of novel disseisin commands the sheriff to summon ^ Mait. Eq. 308. 2 T P. and M. 150. 33 an inquest in order that one precise question may be answered: — Did B unjustly and without a judgment disseise A of his free tene- ment in X since the king's last journey into Normandy? At count- less points an action thus begun will differ from a proprietary action for land begun by a writ of right; both of them will differ from an action of debt, and even between the several possessory assizes many distinctions must be drawn, in particular as to the number of 'essoins,' excuses for non-appearance, that the litigants may proffer. Thus before the end of Henry's reign we must already begin to think of royal justice — and this is becoming by far the most important kind of justice — as consisting of many various com- modities each of which is kept in a different receptacle. Between these the would-be litigant must make his choice; he must choose an appropriate writ and with it an appropriate form of action. These wares are exposed for sale; perhaps some of them may already be had at fixed prices, for others a bargain must be struck. As yet the king is no mere vendor, he is a manufacturer and can make goods to order. The day has not yet come when the invention of new writs will be hampered by the claims of a parliament. But still in Glanvill's day the officina iustitiae has already a considerable store of ready-made wares and English law is already taking the form of a commentary upon writs." Though the royal power over litigation was somewhat checked during the reign of John, yet it continued to grow. "The number of writs which were issued as of course for the purpose of enabling those who thought themselves wronged to bring their cases before the law courts, increased rapidly during the reign of Henry III (1216-1272). . . . Apparently there were some writs which could be had for nothing; for others a mark or a half-mark would be charged, while, at least during Henry's early years, there were others which were only to be had at high prices. We may find creditors promising the king a quarter or a third of the debts that they hope to recover. Some distinction seems to have been taken between necessaries and luxuries. A royal writ was a necessary for one who was claiming freehold; it was a luxury for the creditor exacting a debt, for the local courts were open to him and he could proceed there without writ. . . . The almost mechanical work of penning these ordinary writs was confided to clerks who stood low in the official hierarchy, to cursitors {cur- sarii) ; it consisted chiefly of filling with names and sums of money the blanks that were left in the forms that they found in their registers; but some clerk of a higher grade seems to have been 34 responsible for every writ. No finality was as yet ascribed to the register; it was not regarded as an exhaustive scheme of justice to which no addition could be made save by definite legislation, though a common form, when once settled, was not to be lightly tampered with. New writs could be made, at all events if they were 'personal,' not 'real' — any innovation 'touching freehold' was a more serious matter — and they were made somewhat freely. To take the best example, towards the close of Henry's reign the action of trespass, which is full of future history, becomes common some- what suddenly. The chancery had not yet fallen so far apart from the courts of law that the justices could not get new writs made if they wanted them. In manuscript registers we find a group of new writs ascribed to William Raleigh who was for a while the fore- most judge in the king's court. For some years before the barons' war Henry attempted to govern without a chancellor or with a chancellor who was such only in name; his chancery was no serious obstacle to his will and pleasure, though now and again even a vice-chancellor might resign rather than set the seal to a document that he regarded as illegal. Complaints against new and unac- customed writs grew loud. The discontented prelates and barons demanded a real chancellor and one sworn to issue no writs, save 'writs of course,' without warrant from the baronial council. Under Edward I (i 272-1 307) two different causes tended to give stability and finality to the cycle of original writs. On the one hand, it be- came apparent that to invent new remedies was to make new laws, and events were deciding that only in a parliament of the three estates could new laws be made: even when the king was concerned, the list of actions was to be a closed list. On the other hand, chan- cery and chancellor had grown in dignity."' "In the reign of Henry III Bracton had said Tot erunt formulae brevium quot sunt genera actionum. There may be as many forms of action as there are causes of action. This suggests, what may seem true enough to us, that in order of logic Right comes before Remedy. There ought to be a remedy for every wrong; if some new wrong be perpetrated then a new writ may be invented to meet it. Just in Bracton's day it may have been possible to argue in this way; the king's court and the king's chancery — it was in the chancery that the writs were made — enjoyed a certain freedom which they were to lose as our parliamentary constitution became definitely established. A little later though the chancery never loses a certain power of varying the old formulas to suit new cases and this power was recognized by statute, still it is used but very cau- I P. and M. 195. 35 tiously. Court and chancery are conservative and Parliament is jealous of all that looks like an attempt to legislate without its con- currence. The argument from Right to Remedy is reversed and Bracton's saying is truer if we make it run Tot erunt actiones quot sunt formulae brevium — the forms of action are given, the causes of action must be deduced therefrom."* In brief, the development of the system of original writs was substantially as follows: At the beginning of the Norman period the jurisdiction actually exercised by the royal courts was very narrow. But the king had the power to draw to his courts, by the issuance of special writs, each manufactured for a particular case, such causes as he desired; and he exercised this power with increasing frequency. Under Henry II the royal judicial power was greatly extended. A royal writ was necessary to compel a man to answer for his freehold. Actions for the recovery of possession of realty in the king's court were invented. In a steadily growing number of other classes of cases, the king through his chancery was issuing writs as of course. Indeed it began to look as jf the royal courts, either through writs of course or special writs created for the purpose, might provide a remedy for every wrong. Under John a slight check occurred; but under Henry III the stream of writs issuing from chancery rapidly widened. As early as 1 244 the barons and prelates protested. Gradu- ally it was being perceived that the king by his invention of new writs was legislating and was frequently creating new rights. Finally in 1258 the barons extracted from the king, in the Provisions of Oxford, the pledge that his chancellor should be under oath to "seal no writs, excepting writs of course, without the commandment of the king and of his council, who shall be present.'" Thereafter no new writs could be granted by the chancery; and this meant that, so far as the royal courts were concerned, a litigant whose case could not be brought within the confines of a formed writ was remediless. At this time the writs applicable to real and mixed actions were numerous. These actions have long since been abolished. Their his- tory, while interesting and instructive, has such a comparatively un- important bearing upon the problems of a first year student as to forbid its consideration here. The personal actions for which writs of course were provided were (i) Replevin, (2) Debt, (3) Detinue, (4) Covenant, (5) Annuity, (6) Account, (7) Trespass. Later * Mait. Eq. 300. "Stubbs, 378, 380, 382, 384, 386. 36 (8) Case, (9) Ejectment, (10) Assumpsit, and (11) Trover were evolved. In most jurisdictions these forms too have been superseded by a single cause of action created by statute. In the few jurisdictions where they still survive they have been greatly changed. But they have played so important a part in the development of our law, and so many cases still cited and accepted as precedents, and required to be studied by the beginner, turn upon the question whether the proper form of action has been used, that they demand at least a brief notice. Imfortance of the Forms of Action. When the medieval litigant or his lawyer applied to chancery for a formed writ, he was in effect asking for a mandate to the royal judges to take jurisdiction of and to try a cause of action properly falling within the limits of that writ. The writ was no general order or authorization to try the validity of any claim which the plaintiff might choose to assert against the defendant. If plaintiff had selected and secured a writ in debt, he could not expect the judges to try a case in trespass. As Pollock and Maitland put it:' "The metaphor which likens the chancery to a shop is trite; we will liken it to an armoury. It contains every weapon of medieval warfare from the two-handed sword to the poniard. The man who has a quarrel with his neighbor comes thither to choose his weapon. The choice is large; but he must remember that he will not be able to change weapons in the middle of the combat and also that every weapon has its proper use and may be put to none other. If he selects a sword, he must observe the rules of sword-play; he must not try to use his cross-bow as a mace. To drop metaphor, our plaintiff is not merely choosing a writ, he is choosing an action, and every action has its own rules." And this remained true as long as the formulary system endured. Professor Maitland, in pointing out the practical importance of dis- tinguishing between the several forms of action, said:' " 'A form of action' has implied a particular original process, a particular mesne process, a particular final process, a particular mode of pleading, of trial, of judgment. But further to a very considerable degree the substantive law administered in a given form of action has grown up independently of the law ad- '2 P. and M. 561. ' Mait. Eq. 298. 37 ministered in other forms. Each procedural pigeon-hole contains its own rules of substantive law, and it is with great caution that we may argue from what is found in one to what will probably be found in another; each has its own precedents. It is quite possible that a litigant will find that his case will fit some two or three of these pigeon-holes. If that be so he will have a choice, which will often be a choice between the old, cumbrous, costly, on the one hand, the modern, rapid, cheap, on the other. Or again he may make a bad choice, fail in his action, and talce such comfort as he can from the hints of the judges that another form of action might have been more successful. The plaintiff's choice is irrevocable; he must play the rules of the game that he has chosen. Lastly he may find that, plausible as his case may seem, it just will not fit any one of the receptacles provided by the courts and he may take to himself the lesson that where there is no remedy there is no wrong." The truth of the foregoing is dramatically illustrated in many a case in our American reports. A failure to keep it steadily in mind will frequently result in a complete misinterpretation of a decision. For example, suppose that plaintiff brings an action of trespass against a railway company and alleges that he was a passenger upon defendant's railway and had paid the fare which entitled him to be carried from station A to station M, that he was by defendant wrongfully compelled to leave the train at way station G; that as a result thereof he had to remain at G for a period of twelve hours, suffered greatly from cold, hunger, fatigue, and anxiety, so that he became sick, sore, and disabled, to his damage in the sum oi $5,000. The defendant contends that plaintiff has stated no ground for recovery, and the court sustains the defendant's conten- tion. Is the court declaring that the defendant has done the plaintiff no wrong for which the law will give him redress, that a railway company has the legal privilege to compel a passenger to interrupt his journey in this fashion ? * Or suppose that plaintiff has brought an action in debt alleging that defendant is indebted to him in the sum of $500, and defendant has denied the debt. At the trial plaintiff proves that defendant negli- gently damaged some of plaintiff's goods, that plaintiff made a de- mand on defendant for compensation, that defendant promised plaintiff that if plaintiff would have the goods repaired defendant would pay the bill, that plaintiff thereafter had the goods repaired ^ See Barnum v. Baltimore & Ohio R. Co. (1871), 5 W. Va. 10. 38 and that the bill for such repairs was $500, that plaintiff presented the bill to defendant, that defendant stated that the bill was correct and he would pay it, but later he repudiated his promise and refused to pay it. The court decides for the defendant. Does this decision mean that plaintiff has no cause of action at all against the defendant, or that he has no cause of action except for the original negligence? Is this an authority that there is no action for breach of an accord executory? ° Again, suppose that plaintiff brings an action of trover against the defendant, and at the trial the following facts are shown without dispute. Plaintiff leased certain premises from defendant to be used as a butcher shop. The lease was signed before the front wall of the building was completed, and plaintiff moved in through this front part a very large refrigerator. At the termination of the lease plaintiff requested permission of defendant to remove the front show windows for the purpose of taking out the refrigerator and promised to replace the windows. Defendant refused to allow plaintiff to enlarge any of the means of egress from the building or to remove such windows, and it was otherwise impossible for plaintiff to remove the refrigera- tor without cutting it into pieces and thereby destroying it. Defendant was entirely willing that plaintiff should remove the refrigerator or any part thereof through any of the then existing ways of exit from the building. If the court holds that judgment must be entered for the defendant, will its decision be a precedent to be used in a later lawsuit on substantially the same facts where the plaintiff sues in an action on the case, or under a modern code in a formless action ? May it be properly cited to show that defendant has violated no legal duty owed to the plaintiff? None of the foregoing queries can be safely answered, or indeed answered at all, without considering with great care the scope of the action used. In the first case the decision is merely that the wrong of which the plaintiff complained was not remediable in an action of trespass; in the second, that plaintiff's proof did not disclose an obligation on the part of defendant for breach of which an action of debt would lie ; in the third, that upon the undisputed facts plain- tiff had no Cause of action in trover. In announcing its decision, the court might indicate whether in its opinion plaintiff would have fared better had he employed some other form of action; but any » Cf. W. F. Parker & Son v. Clemon (1908), 80 Vt. 521, 68 Atl. 646. 39 observations upon this point would not be essential. And in evaluat- ing the decision, this must not for a moment be overlooked by judge, lawyer or student. It will, therefore, be advisable to devote a little attention to each of the above-mentioned forms of personal action. Reflevin. This is one of the oldest of the formed actions.^" It owes its origin to the policy of the royal courts to keep the exercise of the privilege of distress within bounds. In medieval England a feudal lord was at liberty to distrain his vassal's chattels for failure of the latter to render his feudal services or for arrears of rent, that is to say, he might lawfully seize the chattels found upon the tene- ment and keep them until the tenant either tendered what was due or gave security to try in a proper court the validity of the caption. In certain other cases also distraint was permitted, as where trespass- ing animals were taken doing damage.^^ If the distrainor refused to return the chattels when proper security was offered or if he wrong- fully levied a distress, the distrainee's remedy was the action of replevin. From chancery he obtained a writ requiring the sheriif to retake the chattels and hand them back to him. Thus whether the distress had been wrongfully or rightfully levied, the plaintiflt se- cured the return of his goods without giving the defendant an oppor- tunity to be heard. PlaintiflF was required to furnish pledges that he would prosecute the action. But if pending the trial, he disposed of the goods and became insolvent, the defendant was deprived of his remedy of distress. To prevent this undesirable result, the statute of Westminster II, chapter 2 (1285), required the plaintiflF to give security for the return of the chattels in case the lawsuit terminated in defendant's favor. If plaintiff won, he kept the chattels and re- covered damages for the wrongful detention; if he lost, he had to return the goods to the defendant. Because of the expense and delay necessarily incident to procuring a writ from chancery by those living far from Westminster, the Statute of Marlebridge (1259) authorized the sheriff to make the recaption from defendant and delivery to plaintiff upon the com- ^^ Replevin of land seized for default of appearance in a writ of right and replevin of men in arrest were anciently known but are not treated here because they have no bearing upon the modern action. Glanville gives the form of the writ. Among the earliest cases are Abbot v. Croft (temf. Rich. I), 24 Pipe Roll Soc. 240; Kingswood v. Hereford (1200), 2 Rot. Cur. Reg. 233i Alanson v. Warren (1201), i icL. 408; Bukerel v. Acstede (1230), Br. N. B. pi. 477. Cf. Ames, 65, u. 1. ^^ See Gilbert, Chap. I, and Ames, 65, for further details as to distress. 40 plaint of the plaintiff without a royal writ. This soon became the usual method of commencing a replevin action. "^^ The trial occurred before the sheriff in the County Court, wherein for this purpose he presided as a royal justiciar.''^ The device of the lord to circumvent the replevin by a claim of ownership of the chattels, and that of the tenant to nullify the lord's alleged justification for the distress by raising an issue of freehold were overcome by the creation of new writs, pursuant to which these questions could be tried in the action.^* ■ Near the end of the fifteenth century the scope of the action was expanded by judicial decision to cover wrongful seizure of chattels whether by way of distress or otherwise.^' Some attempts were later made to bring within its limits relief for the wrongful detention of goods which had come rightfully into defendant's possession; but in England and in the majority of American jurisdictions the courts refused to go so far. One of the early methods of trial in this action was compurgation or wager of law.''" It was common before the sheriff in the County Court^' and was not unknown in the royal courts.''^ When defendant denied the wrongful caption and detention, he "waged his law," that is, he gave pledges that on a later day fixed by the court he would appear with a specified number of oath-helpers and "make his law." On the day set, he and his oath-helpers came into court. He swore that he did not take and detain the chattels as alleged by plaintiff; and his oath-helpers, according to the earlier form, swore that he spoke the truth; according to the later form, that they believed that he spoke the truth.^° If defendant and his oath-helpers repeated the ^^ See Stephen, *ig, note m; "The action of replevin here mentioned is that by flaint, which is the only kind known in practice. There was anciently in use another species of replevin, in which a writ was issued out of the Court of Chancery, directed to the sheriff." ■'* 2 P. and M. 577; Bracton, folio 157 b. '^^ Gilbert 73, 129 et seq. ^^ Ames, 69-70. " 2 P. and M. 634, n. 8. ^^ Ames, 65. " Br. N. B., pis. 477, 74,. '■^ The form of oath of the oath-helpers in Anglo-Saxon times was the following: "By the Lord, the oath is clean and unperjured which N has sworn." Henry C. Lea, Superstition and Force (3d ed., 1878), 53. The proce- dure in 1699 in an action of debt is described in the report of an anonymous case in 2 Salkeld 682: "The defendant waged his law, and a day was given upon the roll for him to come and make his law; and now upon the last 41 proper oaths with the requisite precision, judgment was given for defendant; if they or any of them failed, the "oath burst," and judgment went for plaintiff. Toward the end of the thirteenth cen- tury, this mode of trial was obsolescent, if not obsolete, in the royal courts; and trial by jury soon completely displaced it. Debt. In a writ of right for land the sheriff was directed to com- mand the tenant (defendant) justly and without delay to render to the demandant (plaintiff) a certain piece of realty which the de- mandant claimed to be his right and inheritance and of which he complained that the tenant was unjustly deforcing him.^" And unless the tenant did so, he was to be summoned before the justices to show why he had not done it. In the writ of debt, as given by Glanvill, the sheriff is ordered to command the defendant to render to plaintiff a specified sum of money which defendant owes to plaintiff and of which he unjustly deforces him. And if he will not do it, he is to be summoned before the justices to show why he has not done it. The writ of debt seems to have been a writ of right for money; the action to have been a real action.^^ The conception of the courts of that time was that the debtor was holding back something which he had granted, and which therefore actually belonged, to the creditor, not that he was merely under an obligation to pay money. Indeed, the action lay for chattels as well as for money. The plea rolls of Richard I and of John, as well as the treatise of Glanvill, show this action to be one of the earliest formed actions, but its use was rather infrequent until near the end of Henry Ill's reign (1272). By that time the form of the writ had somewhat changed. It no longer spoke of deforcing plaintiff of the money but simply of unjustly detaining it. It was employed "but rarely save for five purposes: it was used, namely, to obtain ( i ) money lent, (2) the day of the term he came. And the defendant was set at the right corner of the bar, without the bar, and the secondary asked him, If he was ready to wage his law? He answered, Yes; then he laid his hand upon the book, and then the plaintiff was called. Then the Court admonished him {i.e., the defendant) and also his compurgators, which they regarded not so much as to desist from it; accordingly, the defendant was sworn, that he owed not the money m-odo & forma, as the plaintiff had declared, nor any penny thereof. Then his compurgators standing behind him, were called over and each held up his right hand, and then laid their hands upon the book and swore, that they believed what the defendant swore was true." ^^ This was the "Praecife in cafite," not the "Breve de recto tenendo." ^^ 2 P. and M. 204-206. 42 price of goods sold, (3) arrears of rent due upon a lease for years, (4) money due from a surety {flegius),'^ and (5) a debt confessed by a sealed document. We cannot say that any theory hemmed the action within these narrow limits. As anything that we should call a contract was not its essence, we soon find that it can be used whenever a fixed sum, 'a sum certain,' is due from one man to another. Statu- tory penalties, forfeitures under by-laws, amercements inflicted by inferior courts, money adjudged by any court, can be recovered by it. This was never forgotten in England so long as the old system of common law pleading was retained.'"' In these early precedents is found ample justification for the wide scope of the modern action, which lay in four chief classes of cases. The writ was the same in all classes. The distinctions were taken in the pleadings and in the mode of trial. The declaration in each case set forth the causa debendi. A plea which might properly be inter- posed in one class might be demurrable in another; and the course of the subsequent pleadings depended upon the plea. 1. Debt on a record was debt brought to recover money due on a record, for example, on a judgment of a domestic court of record. When debt was brought to recover on a judgment of a foreign court, whether of record or not, or upon a judgment of a domestic court not of record, the course of the pleadings was not that of debt on a record. 2. Debt on a statute lay where the plaintiff was seeking to recover a definite sum due from defendant as a penalty or forfeiture under a statute. For example, where a statute provided that for an inf ring- ment by A of a specified right of B, A should forfeit a fixed sum to B, B might have an action of debt, but not where the statute allowed B multiple damages rather than a fixed sum. 3. Debt on a specialty or debt on a bond was.used for the recovery of money which the defendant had promised to pay, or had admitted to be owing, to plaintiff in a writing under defendant's seal. ^^ See 2 P. and M. 191. "We must remember that in very old times the surety or pledge had in truth been the principal debtor, the creditor's only debtor, while his possession of the 173. 177- 48 world; it must issue out of something. These annuities issue out of the grantor's 'chamber,' the place where he keeps what treasure he has. . . . "Our materials give us but little information as to the treatment of these personal annuities by the law of Bracton's age. . But it was decided that the actions for land could not be made to serve for the recovery of these 'chamber rents.' . . . Late in Henry's reign an appropriate action, the writ of annuity, or rather of 'annual rent,' was given for their recovery. They fell apart from land, and in course of time they slowly assumed the guise of merely con- tractual rights. . . . "^^ After the merely contractual nature of the obligation was realized, the action of annuity gradually fell into disuse. It was occasionally used in the eighteenth century'^ but Mr. Tidd as early as 1803 was able truthfully to say: "This action is at present out of use, being superseded by the action of debt or covenant."^^ Its influence on the later law has been so slight that it merits no further treatment here. Account. The writ in this action was similar to that in debt and in detinue, and commanded the defendant to render an account to the plaintiff. The first register of writs to contain it is that in which the writ of annuity also makes its original appearance;^* and the first reported case of its use occurred in 1232.°^ It was probably devised to give the lord of a manor an adequate remedy against his bailiff, who had received rents and made expenditures for him. It lay also at an early date against a factor who had bought and sold goods for his principal, and by one merchant against another with whom he had entered into a joint-adventure. It was extended by statute and judicial decision to require accounting by guardians, executors, administrators, joint-tenants and tenants-in-common; persons whose relationship to the plaintiff required or authorized them to make collections and dis- bursements on his behalf. "Another form of the action of account existed where the de- fendant was charged simply as a receiver of so much money for the use of the plaintiff by the hands of a third person. Originally that ^^ 2 P. and M. 133-134. °^ See, e.g., Hope v. Colman (1764), 2 Wils. 221. =2 T Tidd 4. °* See note 50 sufra. ^' ' P. and M. 221. 49 was the only remedy where A delivered money to B for C.°' . . . The form of the writ against a general receiver charged that money had been received for the use of the plaintiff. Twenty-five cases where that phrase is used, running back to Edward the First and coming down to the last century, have been found."°' Here there was no requirement that the receipt by B should have been by authorization of C. All that was necessary was that A should have given and B should have received the money for C's use. The procedure in account was unusual. The first issue to be tried was whether defendant was under a duty to account to plaintiff. If this was decided in favor of defendant, he was entitled to final judg- ment; if in favor of plaintiff, the judgment was that defendant do account. Then auditors were appointed before whom the parties must frame their issues and offer their evidence as to the state of ac- counts between them. If the accounts, when properly submitted and analyzed, showed a balance in plaintiff's favor, he recovered judg- ment for that balance; if they showed no balance either way or a balance in favor of defendant, the defendant was dismissed with his costs, but he could not get judgment for any sum proved to be due him. Furthermore, the defendant was privileged to wage his law on some issues. This dilatory, cumbersome and expensive method of proceeding caused litigants in later times to resort to the bill in equity for an accounting where the accounts were complicated, and to debt or assumpsit in the simpler cases. For this reason the action of account is rarely found after the beginning of the nineteenth century.'* Tresfass. No writer has yet satisfactorily traced this action to its origin; but some things are made clear by authorities now available in print. ( i ) The writ is not given by Glanvill, nor does it appear in the registers of writs compiled before the reign of Edward I.^^ (2) At the opening of the thirteenth century litigants were bringing appeals for injuries for which in later days they would bring tres- pass, although in the appeal they could be awarded no compensation °° Ames, 117. "Vi. 118. ''See 2 P. and M. 221-222; Mail. Eq. 357-358; Ames, 117-121; i Selwyn, Nisi Prius (Am. ed., 1881), 1-9; i Tidd, i; Langdell, Brief Survey of Equity Jurisdiction, 75-87; 3 Blackstone (13th ed.), 347-348; I Holdsworth, 307-308 (3d ed.). " Maitland, History of Register of Original Writs, 3 Harv. L. Rev. 213, 217. 50 but could secure only the punishment of the wrongdoer. (3) In the early years of the reign of Henry III, when writs were being freely manufactured, occasionally trespassory wrongs were remedied by writs issued on the facts of the special case and, after the first third of the thirteenth century, some of these writs very closely resembled the later writs of trespass. (4) Shortly after 1250 the action was in common use; before 1258 the writ was a writ of course. But for some time the limits of the action were not distinctly defined. The word trespass {trans gressio) had not yet acquired an exclusively tech- nical signification, and many a case of this period, usually classified as trespass, is practically indistinguishable from earlier cases wherein the writs were issued on the special facts thereof. (5) Whatever may have been the source or sources from which it was derived, it came in response to an insistent demand, for the cases show litigants and courts during all the first half of the thirteenth century groping about for such an action.*" The jurisdiction of the royal courts was founded upon the fact that the wrong done involved a breach of the king's peace. The writ and declaration averred that defendant's act had been committed vi et armis et contra -pacem Domini Regis — with force and arms and against the peace of the Lord King. Originally, it seems reasonable to believe, the force and breach of peace were required to be proved as well as alleged. Such was the case, Professor Maitland thought,"^ in Henry Ill's day, though even then very slight violence would suf- fice. In later times neither violence nor breach of the peace had to be proved. In the modern action it was necessary to show only a direct and immediate injury to plaintiflF's person or to his corporeal property by the wrongful act of defendant. When brought for injury to plaintiff's person, it was called trespass in assault and battery; for "° See the following cases as illustrative of the assertions in the text. Evesham v. Gifford (1198), i Rot. Cur. Reg. 63 (appeal); Lamburn v. Danmartin (1194), 14 Pipe Roll Soc. 24; Rande v. Malfe (1199), 2 Rot. Cur. Reg. 120 (begun as action for damages: defendant raises issue of title and puts himself on grand assize. Case compromised) ; Baggetorr v. Morel (1220), Br. N. B. pi. 85; Freston v. Eutropson (1221), id. pi. 1520; Stowe V. Mesners (1222), id. pi. 194; Iveson v. Bray (1226), id. pi. 1735; Abbot of Weybridge v. Gravele (1234), id. pi. 835; Teuton v. Chaggeford (1234), id. pi. 1121; Beauchamp v. Prior of Kenilworthe (1237), Abbrevio Placi- torum 105a; Scroty v. Muncelyn (1241), id. 107a; Valence v. Wrennockson (1253), id. 129a. 81 Mait. Eq. 343-344- 51 injury to his land, trespass quare clausum f regit or de clauso fracto; for carrying away his chattels, trespass de bonis asfortatis; when brought for other wrongs, it was given no special name. Real property was sufficiently plaintiff's to support the action when, and only when, he was in possession of it at the time of such injury. His possession, even though unjustifiable as against the true owner, was enough as against others. On the other hand, even if he were the owner and entitled to the immediate possession of the in- vaded land and yet were out of possession when the injury was in- flicted, he could not recover in trespass."^ But from the early part of the fourteenth century a bailor could maintain trespass for such an injury by a stranger to a chattel in the hands of his bailee at will;'' and at a comparatively early date it became settled that one who owned an interest in, and was entitled to the immediate possession of a chattel was in as good position as the bailor at will. The action did not lie for wrongful invasion of an incorporeal right. Thus, for example, it was not maintainable for slander, libel or malicious prosecution or for interference with a franchise or easement."* From the beginning the method of trial was by jury, though a stray case of trial by compurgation has been found."' The successful plaintiff recovered damages for the injury, and the defeated defend- ant was punished for his breach of the peace by fine or imprison- ment."" As actual breach of the peace ceased to be an element of the action, the fine and imprisonment became obsolete. They were for- mally done away with in 1694."^ Case, or Trespass on the Case. The provisions of Oxford placed an arbitrary limit upon the power of Chancery to create new writs. But legislation could not check the demand for new remedies, and it took less than a generation to demonstrate the inadequacy of existing forms of action to meet the needs of litigants. Accordingly in 1285 the statute of Westminster II provided: "Whensoever from hence- "^ In the United States a number of jurisdictions held that "where there is no adverse possession, the title draws with it constructive possession, so as to sustain the action of trespass." Gillespie v. Dew, i Stew. (Ala. 1827) 229. *^ Ames, 58. "*But see Y. B. 2 Hen. IV. 11, 48 (1401); Pollock Torts (11 ed.), 380. Trespass for interference with a right of fishery. See also Whittier and Mor- gan, Cases on Common Law Pleading, 12, note 12. «= 2 P. and M. 634. "^ 2 Holdsworth, 364-365 (3d ed.). "^ Statute 5 and 6 Wm. & M., ch. 12. 52 forth it shall fortune in the Chancery, that in one case a writ is found, and in like case falling under like law, and requiring like remedy (in consimili casu cadente sub eodem jure et simili indigente reme- dio) is found none, the clerks of the Chancery shall agree. in making the writ; or adjourn the plaintiffs until the next Parliament, and let the cases be written in which they cannot agree, and let them refer them until the next Parliament, and by consent of men learned in the law, a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto complainants."** This enactment authorized Chancery to renew its former practice of issu- ing writs to fit the facts of the special case, with this limitation, that the new writ must be in consimili casu with an existing writ of course. Partly because the word trespass {transgressio) had so broad a mean- ing etymologically and had not yet acquired a technically exact sig- nification, the most elastic of the formed writs was trespass. There- fore when Chancery issued a writ for a wrong not remediable in any of the established forms of action, it was natural to denominate that wrong a trespass and to describe the writ as one in trespass. Conse- quently the records and reports during the next hundred years show many writs, classified as trespass, where no violence or breach of the peace is involved and some where neither is even alleged. Gradually the realization came that a new and flexible form of action had been evolved. The line of demarcation between it and trespass was not clear or sharp, but certain procedural diflrerences inevitably de- veloped. If there was no force or breach of the peace, the defendant should not be treated as if he had committed an oflFense against the king. And by the beginning of the sixteenth century legislators and legal writers, as well as courts and lawyers, recognized that there was a form of action of trespass on the case, or case, distinct from the action of trespass. As Professor Maitland puts it, case became "a sort of general residuary action.""' It lay for indirect or consequential injuries to the person, goods or lands of the plaintiff by the wrongful act or neglect of defendant. As the defendant who threw a log against the plaintiff must respond in trespass, so the defendant who wrongfully left a log lying in the highway so that plaintiff stumbled over it was responsible in case. He who maintained a nuisance on his own prop- erty to the injury of the health of the plaintiff, his neighbor; he who «8 Mait. Eq. 345. '"Id. 361. 53 unjustifiably allowed noxious fumes to escape from his factory and damage plaintiff's trees, shrubbery or growing crops, exposed him- self to an action on the case. It was maintainable also for injuries to reversionary interests, such, for example, as the interest of the owner of land in possession of a tenant for years, or that of a bailor of a chattel bailed for a definite term. It could be properly brought too for injuries to incorporeal rights, as, for instance, for wrongful interference with an easement, for libel, slander and malicious prosecution. So general was its application that Stephen went so far as to say that it lay where a party sued for damages for any wrong or cause of complaint to which covenant or trespass would not apply.'" This statement is probably too broad; but the following remarks of Ames seem to be justified: "This beneficent statute of Edward I (Westminster II), the origin of all our actions of trespass on the case, has been the great reforming agency in supplying the defects of the common law. Upon this statute is based our whole law of actions for defamation, for malicious prosecution and for deceit, as well as the whole law of assumpsit, which came practically to be the remedy for all modern contracts except contracts under seal. Of the great number of ap- plications of the Statute of Westminster these actions on the case for defamation, deceit, malicious prosecution, and breach of promise, together with the action for nuisances, are the ones which, more than all others, have contributed to the beneficient expansion of the common law.'"* Assumfsit. Debt, detinue, covenant and account afforded no rem- edy for breach of an unsealed promise, and there are numerous deci- sions in the 1400's that no action lies upon such an undertaking.^^ But in the sixteenth century and thereafter actions on the case for broken promises, or actions of assumpsit, are common. How did the change come about? If B cut C with a razor without C's consent, C had an action of trespass against him; if he did it with C's consent for a legitimate purpose, obviously C had no action at all; but if he undertook to shave C skillfully and did the work so carelessly as to cut him, he thereby wrongfully applied physical force directly to C's person. This was exactly the situation where C was entitled to a writ in consim'iU casu with trespass. B was liable in trespass on the ■"> Stephen, *i6. '* Ames, 442. ^^ For a full discussion of the history and development of this action, see Ames, 129-166. 54 case, and it was his undertaking that made him responsible. The writ and declaration therefore alleged that B undertook (assumpsit) to do the shaving skillfully.'^ In like manner, where B promised to deal skillfully with C's property and handled it so unskillf ully as to injure it, he had to respond in damages in trespass on the case.'^ Again, where a bailee, who had expressly promised to keep the goods en- trusted to him with care and skill, negligently or improperly kept them, he was guilty of active interference with the bailor's chattels, analogous to a trespass, and from the latter part of the fifteenth cen- tury onward the bailor could secure damages therefor in an action on the case. Here too the bailee's assumfsit was a necessary element of bailor's cause. Furthermore, when seller sold goods to buyer with a false express warranty, the courts of the fifteenth century looked upon his action not as a breach of contract but as a tort — a deceit. Seller was not violating a promise, he was misrepresenting an existing fact. The sale with a false warranty was active misconduct for which trespass on the case for deceit would lie. Here then were three classes of cases wherein a writ of trespass on the case would issue and wherein breach of the undertaking by affirmative misconduct was of the essence of the action. Now, suppose that S promised to sell to B and, in violation of that promise, sold to C. Was not his sale to C active misconduct in breach of an undertaking? was it not a deceit? and should there not be a remedy against him as against the careless barber, the negligent bailee and the false warrantor? Liti- gants in the fifteenth century frequently believed so, strongly enough to try it out, and before the opening of the sixteenth century they had convinced the courts that they were right. But one step remained to be taken. In all these cases the promisor's misconduct was positive — a misfeasance. If he merely failed to act, if by nonfeasance he vio- lated his promise, all the earlier cases said no writ could issue. But in view of the facts that the promisor was as blameworthy and the damage to the promisee was as great in one case as in the other, so thin a distinction could not long stand. And early in the sixteenth century it became established that for breach of an unsealed contract an action on the case would We..''^ This action later split off from Case and became a separate formed action known as Assumpsit.'" '^ Ames, 130, n. 4. '* W. 130, notes 1, 3, 5. ''^ Id. 139-143. " Mail. Eq. 363. 55 For the breach of an unsealed promise the lawyers now had a formed action in which trial was by jury. They had before this come to realize that wager of law often afforded a dishonest defendant in the action of debt the means of evading a just obligation; and they were anxious to make this new action do the work of debt. However, assumpsit could not be brought upon the promise which created the debt, because that promise operated as a grant, and a formed action providing an adequate remedy made resort to an action on the case unnecessary. But by the middle of the sixteenth century, if a debtor made a subsequent promise to pay the debt, assumpsit would lie upon that promise. In 1602 the question whether such a second promise was necessary was twice argued before all the Justices of England and Barons of the Exchequer." The jury in an action of assumpsit found in a special verdict that there was a bargain and sale, "that between the plaintiif and the defendant there was no other promise or assumption but only the said bargain." The defendant argued ( I ) that plaintiff's remedy was debt, "which is an action formed in the Register, and therefore he should not have an action on the case, which is an extraordinary action, and not limited within any certain form in the Register"; (2) that to allow assumpsit would take away from defendant the benefit of wager of law "and so bereaves him of the benefit which the law gives him, which is his birthright." The Justices and Barons held that the action was properly brought. "It was resolved, that every contract executory imports in itself an assumfsit, for when one agrees to pay money, or to deliver anything, thereby he assumes or promises to pay, or deliver it, and therefore when one sells any goods to another, and agrees to deliver them at a day to come, and the other in consideration thereof agrees to pay so much money at such a day, in that case both parties may have an action of debt, or an action on the case on assumpsit, for the mutual executory agreement of both parties imports in itself reciprocal actions upon the case, as well as actions of debt. It was said, that an action on the case on assumfsit is as well a formed action, and con- tained in the register, as an action of debt, for there is its form ; also it appears in divers other cases in the register, that an action on the case will lie, although the plaintiff may have another formed action in the Register." Thereafter assumpsit lay to recover a simple con- • tract debt. For a long time the common law provided no remedy for the ^' Slade's Case, 4 Coke 92 b. S6 person who parted with his goods or rendered services to another under the reasonable expectation of receiving from him their reason- able value. Though the recipient by his conduct created in the other party the reasonable belief that he would pay what the goods or services were worth, that other could not bring debt because the sum was not fixed, nor assumpsit because there was no express promise. In the early part of the seventeenth century the 'courts took the rea- sonable step of construing the recipient's conduct as a promise to pay and allowing assumpsit to be brought for breach of this promise.^* It was said that the law implied the promise. Between the years 1673 and 1705, by this device of implying promises, assumpsit was made available for the enforcement of quasi- contractual obligations. That is to say, wherever in the opinion of the courts, the law created an obligation on the part of defendant to pay money to plaintiflF, the latter might maintain assumpsit. The declaration contained an allegation of a promise by defendant to pay, but no proof of it was required.''" When the action was brought for the breach of an express promise, it was called Special Assumpsit; when brought to collect a simple contract debt, or for the reasonable value of goods or services, or to enforce a quasi-contractual obligation, it was called General or Indebitatus Assumpsit. Trover. Replevin, detinue and trespass de bonis asfortatis did not, separately or in combination, furnish adequate relief for wrongful dealing with chattels. Replevin lay only for a wrongful taking. Trespass gave no remedy for damage, destruction or tortious transfer by the bailee of the bailed goods. Detinue had at least two serious defects: (i) The defendant had the privilege of Waging his law. (2) He had the option of returning the chattel or paying its assessed value; and if the chattel were damaged, he was likely to return it. At the very least, an action of trespass in consimili casu with detinue was needed, and to meet this need the action of trover was developed. It began to emerge as an action separate from trespass on the case about the middle of the sixteenth century. It lay, like detinue sur trover, upon a finding by defendant and a refusal by him to deliver to the plaintifF. Its elements are well stated in the following quota- tion: "The classic count in trover alleges (i) that the plaintiff was ''^Ames, 154-159. "W. 160-166; Mait. Eq. 364. 57 possessed, as of his own property, of a certain chattel; (2) that he afterwards casually lost it; (3) that it came to the possession of the defendant by finding; (4) that the defendant refused to deliver it to the plaintiff on request; and (5) that he converted it to his own use, to the plaintiff's damage.'"" No doubt each of these allegations was originally required to be proved as alleged. But as time went on, the scope of the action was expanded to meet new situations. Allegations once regarded as matter of substance were later held to be mere matter of form, so that Ames in his History of Trover accurately says: "The last of these five allegations has been the only one that the plaintiff must prove. The averments of loss and finding are notorious fictions, and that of demand and refusal is surplusage, being covered by the averment of conversion. Under the first allega- tion the plaintiff need not prove that the chattel was his own prop- erty, or that he was in actual possession of it. It is enough to show actual possession as a bailee, finder, or trespasser, or to prove merely an immediate right of possession." Ejectment. In the last years of the twelfth century and the first third of the thirteenth century a lessee for years who was wrong- fully ejected by his lessor might bring an action of covenant and secure damages for the ouster and restoration of his term. But as against others than his lessor he had no remedy. William Raleigh, a royal justice whose judicial career ended in 1239,*^ is credited with having invented a writ which Bracton believed ought to give the termor the same relief against other ejectors as covenant gave against the lessor.*^ But it soon became established that this writ qudre eje<:it infra terminum was available only against an ejector who was claiming under the termor's lessor. Now, while a termor had not that sort of possession which the medieval courts called seisin, yet he had sufficient possession to maintain an action of trespass quare clausum fregit against strangers who intruded and, before the end of the fif- teenth century, even against his lessor who wrongfully entered. The writ of trespass de ejectione firmae required the defendant to answer why with force and arms and against the peace he had entered the *" Ames, History of Trover, 11 Harv. L. Rev. 277. A full account of the history and development of this action is found in this article 11 id. 277-289, 374-386. 8>- Maitland, History of Register of Original Writs, 3 Harv. L. Rev. 175. *^ Bracton, f. 220. 58 land and ejected the plaintiff. As in other actions of trespass, the plaintiff could recover only damages. During the fifteenth century- efforts were made to expand the action, so that the termor might have against strangers who ejected him as adequate a remedy as he had under covenant and quare ejecit against his lessor and those claiming under the lessor. And before the beginning of the sixteenth century it was finally settled that though neither the writ nor the declaration contemplated such relief, the court would award the successful plaintiff restoration of his term and order the sheriff to put him back in possession.^^ Obviously the plaintiff would not be entitled to be repossessed of the land unless his lessor had a sufficient title to support the lease. Consequently, if defendant denied the lessor's title, plaintiff would have to establish it. The result was that in a personal action title to real estate was incidentally tried. Herein the lawyers saw an oppor- tunity to secure the trial of title to realty without the expense and delay of the old real actions and to secure repossession without risk of the narrow technicalities of the possessory assizes. To enable the claimant out of possession to try out his title and right to immediate possession of land in the occupancy of another it was necessary only to put him in the position of a lessor. Accordingly the following procedure was followed. The claimant C entered upon the land and then and there delivered to a friend, L, a lease for years, and left L upon the premises. L remained there until O, the occupant, appeared and ejected him. L thereafter brought trespass de ejectione firmae against O. He could readily prove C's entry upon the land, the lease then and there delivered to him by C and the ejectment by O, and the only real issue was C's title. If L won, he was put in possession of the land, and later surrendered it to C. Because it was frequently inconvenient or dangerous for L to remain upon the premises until O appeared and threw him off, it became customary for C to take with him not only L but E. As soon as C had delivered the lease to L and left him in possession, E would eject him. L would then bring his action against E, the casual ejector. By this device L might get judgment for repossession without O's having any knowledge of the action or opportunity to resist C's claim. To avoid this outrageous result, the court required O to be given notice and opportunity to defend. Although the entry by C, his lease to L, and L's ejectment by E *^ Mait. Eq. 350. 59 were mere formalities and had nothing to do with the real question at issue, they had to be proved if denied; and since they had to be proved, it was essential that they should have actually happened. Under Chief Justice Rolle (1649- 1660) this useless performance was made unnecessary. C made no entry and executed no lease to L, and E did no ejecting. C made his declaration in ejectment against E in the usual form, and to it he appended a notice directed to O and signed in E's name, informing O of the pendency of the action, stating that E had no title and intended to make no defense and tell- ing O to apply to the court for permission to defend. The declaration and notice were delivered to O. If he did not apply for leave to defend, judgment went against E by default, and C was put in possession. If O did apply for leave to defend, it was granted to him only upon condition that he admit the entry by C,*^ the lease to L and the ouster of L by E, and take issue only upon the title of C. Later L and E came to be only fictitious persons, the familiar John Doe and Richard Roe or the suggestive John Fairclaim and Richard Shamtitle. And so the action remained until modern times. At pres- ent all its fictions have been done away with by legislation, and C may bring a direct action against 0.*° Chapter V PLEADINGS In General. After plaintiff had chosen his writ and corresponding form of action, and the defendant had appeared in response to the summons in the writ, it was necessary to make known to the court the exact point in controversy between them. Originally this was accomplished by having the plaintiff first state his claim orally in open court and requiring the defendant to respond thereto. Defend- ant's response might be that plaintiff's statement was insufficient in law, in which case he was said to demur, or it might consist of a denial of plaintiff's statement, or of an admission of its truth and an allegation of other facts which, so defendant contended, made plain- tiff's claim against him invalid or unenforceable. To such allegation ^* Perry, 98, 11. 1. 8^ See Mait. Eq. 347-355; Perry, 93-99; 3 Blackstone, 199 (13th ed.)- 6o of new facts plaintiff had to demur or to reply on the facts; and each party had to meet the statement of the opposing party by a demurrer, which always raised an issue of law, or by a counter-statement of facts until an issue of fact was raised. These statements and counter- statements or responses were called the pleadings and the rules gov- erning them, rules of pleading. Plaintiff's first pleading was known as the Declaration; on the facts this was met by defendant's Plea; the Plea by plaintiff's Replication; the Replication by defendant's Rejoinder; the Rejoinder by plaintiff's Surrejoinder; the Surre- joinder by defendant's Rebutter; the Rebutter by plaintiff's Surre- butter. If further pleadings were required, they were nameless. In the course of time most, of not all, pleadings were required to be written, and at present in civil actions all pleadings are usually in writing. In many jurisdictions in the United States their names have been changed. The Declaration is frequently called Complaint, sometimes Narratio, sometimes Petition; the Plea is called Answer; the Replication, Reply. In many states, there is no pleading on the facts after the Reply, and in a few none after the Answer in the ordinary case. Under the common law system, whenever one party demurred to the pleading of another, the other had to join in de- murrer, that is, assert that his pleading was sufficient in law. This raised a question for decision by the court. Whenever one party met the other's pleading by a denial and put himself upon the country, the latter, if he did not demur, had to interpose a joinder of issue or a similiter. This merely said that he too put himself on the country. It raised an issue of fact to be tried by the jury. Under modern codes, the joinder in demurrer and the joinder of issue or similiter are never used. The following outlines and examples, which do not include joinder in demurrer or joinder of issue, will give an idea of the function and content of the various pleadings sufficient for an under- standing of the usual reported case. OUTLINE AND EXAMPLES OF PLEADINGS DECLARATION (Complaint, Narratio, Petition). A written statement of facts by plaintiff, which, as plaintiff contends, constitute a cause of action in his favor against defendant. EXAMPLES— DECLARATION FOR TRESPASS TO REALTY England — In the King's Bench. The . . day of January a.d. 19.. Middlesex, to wit. Samuel 6i Student, by his attorney, Lewis Lawyer, complains of Peter Police- man, who has been summoned to answer the plaintiflF in an action of trespass. For that the defendant on the . . day of January in the year of our Lord 19.., with force and arms broke and entered a certain dwelling-house of the plaintiff situate and being in the parish of X in the County of Y, and then made a great noise and disturbance therein, and then ejected, expelled, put out and amoved the plaintiff and his family from the possession, use, occupation and enjoyment of the said dwelling-house and kept and continued them so ejected, expelled, put out and amoved for a long space of time, to wit, from thence hitherto; whereby the plaintiff, for and during all that time, lost and was deprived of the use and benefit of his said dwelling-house. And other wrongs to the plaintiff then did, against the peace of our lord the now King and to the damage of the plaintiff of £100, and thereupon he brings suit, etc.^ Connecticut — [N.B. In Connecticut the complaint is usually in- corporated in the writ of summons and has no separate caption. See Chapter IIL] 1. The plaintiff before and at the time of the grievances herein- after complained of, was a boarding-house keeper, carrying on business at the house known as No. 73 Chestnut Street, in Bridge- port, then occupied by the plaintiff. 2. On January ist, 19. ., the defendant, with other men acting under his orders, broke into said house, and forcibly thrust the plaintiff therefrom. 3. The defendant then took possession of said house, and has kept the plaintiff out of the possession thereof from thence to the present time. 4. The business of the plaintiff as a boarding-house keeper was destroyed by the acts of the defendant hereinbefore stated. 5. The plaintiff has suffered $200 damage thereby. The plaintiff claims $200 damages.^ The declaration is to be met by one of the following: A. General Demurrer. A statement, usually in writing, by de- fendant that plaintiff's declaration is insufficient in law, that is, that the facts alleged therein do not state a cause of action in favor of plaintiff against defendant. 1 See 2 Chitty on Pleading (7th ed., 1844), 658. 2 See Connecticut Practice Book (1908), 423. 62 EXAMPLES England — In the King's Bench. The . . day of January 1 9 . Samuel Student vs. Peter Policeman The defendant by his attorney Arthur Andrew says that the declaration is not sufficient in law.° Minnesota. State of Minnesota District Court County of St. Louis Eleventh Judicial District Samuel Student, Plaintiff ] vs. i- Demurrer Peter Policeman, Defendant J Comes now defendant and demurs to the complaint of the plaintiff on the ground that it fails to state facts sufficient to con- stitute a cause of action. (N.B. In most code states the demurrer must specify the grounds of demurrer; but a demurrer specifying insufficient facts is usually termed a general demurrer.) Connecticut. Superior Court Fairfield County January . . 19. Samuel Server ] vs. t Demurrer Peter Policeman J The defendant demurs to the complaint because it does not aver that the plaintiff was in possession of the premises known as No. 73 Chestnut Street in Bridgeport on January ist 19. at the time of the grievances complained of in said complaint. (N.B. In Connecticut by statute all demurrers must distinctly specify the reasons why the pleading demurred to is insufficient.) B. Special Demurrer. A statement, usually in writing, by de- fendant that plaintiff's declaration is insufficient in substance in fail- ^3 Chitty on Pleading, 534. 63 ing to state facts sufficient to constitute a cause of action, and insuffi- cient in form in certain designated particulars. EXAMPLES England — (Title as in General Demurrer). The defendant by his attorney, Arthur Andrew, says that the declaration is not sufficient in law. And the defendant according to the form of the statute in such case made and provided, states and shows to the Court here the following causes of demurrer to the said declaration, that is to say, for that the said close and dwelling- house, in which, etc., in the declaration mentioned are not desig- nated or described in the said declaration either by name or abuttals or other description; and also for that it does not appear in or by said declaration where or in what parish or part of the said county the said close and dwelling-house in which etc. were or are situate. And also that the declaration is in other respects uncertain, informal and insufficient.* (N.B. In most code states, the grounds for demurrer are specifi- cally enumerated in the statutes; and mere matter of form is usually not one of them.) C. Plea of General Traverse or General Issue. A written state- ment by defendant in effect denying all the material allegations in plaintiff's declaration. In the different forms of action, it is expressed in different phraseology. In Trespass and Case, it is Not Guilty; in Assumpsit, Non-assumpsit; in Debt, Nil debet. Non cepit and Non detinet in Replevin, and Non est factum in Covenant are usually called pleas of general issue, but they are hardly broad enough to fit the above definition. EXAMPLES England — (Same title as in General Demurrer above). And the defendant by his attorney, Arthur Andrew, says that he is not guilty of the said alleged trespasses above laid to his charge, or of any or either of them, or any part thereof, in manner and form as the plaintiff hath above thereof complained against him. And of this the defendant puts himself upon the country, etc.° D. Plea of Common Traverse or Sfecific Traverse. A written statement expressly denying a material allegation of plaintiff's dec- * 3 Chitty on Pleading, 534. '/i. 312. 64 laration, usually in the terms of the allegation. After the rule be- came established that the denial of any allegation of a declaration which might be put in issue by the general issue could not properly be made specially, there was no room for a plea of common traverse in Trespass. So no example of such a plea to the declaration above set out can be given. EXAMPLE ... Covenant; Common Traverse of breach for not ref airing. (Title as in General Demurrer above.) The defendant, by Arthur Andrew, his attorney, says that the windows of the said messuage or tenement were not in any part thereof ruinous, in decay, or out of repair, in manner and form as the plaintiff hath above complained against him, the defendant. And of this he puts himself upon the country.^ E. Plea of Sfecial Traverse. A written statement denying in an argumentative manner a material allegation of plaintiff's declara- tion followed by a direct denial of the same allegation. The direct denial is introduced by the phrase absque hoc (without this), or the phrase et non (and not) . Like the common traverse it could not properly be used as a plea to a declaration in Trespass. EXAMPLE Sfecial Traverse in Reflevin — Proferty in Third Person. (Title as in General Demurrer.) And the defendant by Arthur Andrew, his attorney, says that the goods and chattels in the said declaration mentioned at the said time when etc., were the property of one William Smith {absque hoc that they were the property of plaintiff, or) and not of the plaintiff, as by the said declaration is above alleged. And this the defendant is ready to verify; wherefore he prays a return of the said goods and chattels together with his costs in this behalf, accord- ing to the form of the statute in such case made and provided, to be adjudged to him, etc.'' (N.B. After the Hilary Rules of 1834 the defendant put himself on the country instead of offering to verify.) ^ Stephen, *58. ' See 3 Chitty on Pleading, 292. 65 F. Answer or Defense of General Denial. A written statement of defendant denying each and every allegation of plaintiff's com- plaint. This was not known to the common law system ; it is provided for by statute and applies to all forms of action. EXAMPLES Connecticut — (Title as in Connecticut General Demurrer above, substituting "Answer" for Demurrer.) The defendant denies the truth of the matters contained In the plaintiff's complaint. Minnesota — (Title as in Minnesota Demurrer above, substituting "Answer" for "Demurrer.") Comes now the defendant and for answer to the complaint of the plaintiff denies each and every allegation in said complaint con- tained. New York — Similar to Minnesota. G. Answer or Defense of Sfecific Denial. A written statement denying specifically one or more allegations of the complaint. To make the answer sufficient these denials must put in issue allegations necessary to plaintiff's cause of action. EXAMPLES Connecticut — To the Connecticut Complaint above. (Title as in Connecticut General Demurrer above, substituting "Answer" for "Demurrer.") Paragraphs second, third, fourth and fifth are denied. or 1. Paragraph first is admitted. 2. Paragraph second is denied. New York. Supreme Court of New York County of New York Samuel Student, Plaintiff j vs. y Answer Peter Policeman, Defendant J Comes now defendant in the above-entitled action and for an- 66 swer to the complaint of the plaintiff denies each and every allega- tion contained in paragraph numbered three thereof. or Comes now defendant and for answer to the complaint denies spe- cifically that at the time of the grievances alleged in said complaint plaintiff was in occupation of the house known as No. 73 Chestnut Street in Bridgeport, and denies specifically that this defendant then or at any other time broke into said house or thrust the plaintiff therefrom. H. Plea or Defense in Confession and Avoidance. A written state- ment by defendant admitting, either expressly or by failure to deny, the truth of the facts stated by plaintiff in his declaration, and setting up additional facts, which, as defendant contends, constitute an ex- cuse or justification for the alleged wrong complained of by plain- tiff, or a discharge of defendant from all liability therefor. In code states this is called an answer or defense of new matter, or special defense. EXAMPLES England — Liberum Tenementum — His own freehold. (Title as in General Demurrer above.) And the defendant by Arthur Andrew, his attorney, says that the said dwelling-house in the said declaration mentioned, and in which etc. now is, and at the said several times when etc. was the dwelling- house and freehold of the said Peter Policeman, the defendant herein; wherefore the defendant in his own right at the said several times when etc. committed the said several alleged trespasses in the said declaration mentioned, in the said dwelling-house, in which etc., so being the dwelling-house and freehold of defendant as he lawfully might for the cause aforesaid, which are the said several alleged trespasses whereof the plaintiff hath above thereof com- plained against him. And this the defendant is ready to verify etc.* Connecticut — Accord and Satisfaction. (Title as in Connecticut Answer of General Denial.) After committing the said supposed grievances in the complaint mentioned and before this action, on February 15, 19. ., the de- fendant delivered to the plaintiff, and the plaintiff accepted and received from the defendant ten shares of stock of the X Y Cor- poration in full satisfaction of the damages in the complaint men- ^ 3 Chitty on Pleading, 360. 67 tioned, and of all the damages by the plaintiff sustained by reason of the acts therein alleged. A Plea in Confession and Avoidance is to be met by one of the following: 1. General Demurrer — A statement, usually in writing, by plaintiff that the defendant's plea is insufficient in law; that is, that the facts set up therein do not constitute a defense to the cause of action alleged in plaintiff's declaration. The form is similar to that of a general demurrer to the declaration. 2. Sfeciol Demurrer — ^A statement, usually in writing, by plaintiff that defendant's plea does not allege facts constituting a defense to the cause of action set forth in plaintiff's declaration, and that it is defective in form in certain designated particulars. EXAMPLE England — (Same title as for Demurrer to Declaration). The plaintiff by Lewis Lawyer, his attorney, says that the plea is not sufficient in law. And the plaintiff according to the form of the statute in such case made and provided, states and shows to the Court- here the following causes of demurrer to the said plea, that is to say, that the said plea amounts to the general issue. 3. Replication by tvay of General Traverse — Such a general trav- erse in pleadings subsequent to the Plea was not generally allowed at common law. In actions of Trespass, Case, Assumpsit, Debt, Cove- nant, and Replevin, it was permitted in general where the de- fendant's plea admitted the plaintiff's right and set up an excuse or justification for defendant's infringement thereof. It was called the Replication de Injuria. It was not proper in trespass to a plea of liberum tenementum, nor was it proper to a plea of discharge. Consequently no example of such a replication to the pleas above set out can be given. EXAMPLE Replication de Injuria to Plea of Self-Defense in Trespass to Person. England — (Title same as in General Demurrer above) . And the plaintiff, as to the plea of the defendant by him above pleaded, says that the defendant at the said time when etc. {de in- juria sua propria absque tali causa") of his own wrong, and without the cause by him in his plea alleged, committed the said several 68 trespasses in the introductory part of said plea mentioned, in manner and form as the plaintiff hath above in his said declaration com- plained against the defendant. And this the plaintiflF prays may be inquired of by the country.* 4. Refly of General Denial — In code states such a reply is common. It denies all the allegations of defendant's answer setting up an affirmative defense. EXAMPLE Connecticut — (Title as in Connecticut General Demurrer above, substituting "Reply" for "Demurrer"). The plaintiff denies every allegation in the answer. 5. Replication of Common Traverse or Sfecific Traverse — ^A written statement by plaintiff denying the truth of one or more of the material allegations of the plea. At common law plaintiff was usually required so to confine his denial as to put in issue only a single material fact. EXAMPLE England — Traversing flea of liberum tenementum. (Title as in the General Demurrer above.) And the plaintiff, as to the plea of the defendant by him above pleaded, saith that the said dwelling-house in the said declaration mentioned in which etc. now is not, and at the same several times when etc. was not the dwelling-house and freehold of the defend- ant in manner and form as the defendant hath above in his said plea alleged. And this the plaintiff prays may be inquired of by the country etc.^" 6. Replication of Sfecial Traverse — ^A written statement denying in an argumentative manner a material allegation of defendant's plea followed by a direct denial, usually introduced by absque hoc or et non. EXAMPLE England — Traversing flea of liberum. tenementum. (Title as in the General Demurrer above.) And the plaintiff, as to the plea of the defendant by him above pleaded, says that the said dwelling-house in the said declaration ° 3 Chitty on Pleading, 489. w U. 495-496- 69 mentioned, in which etc. now is, and at the said several times when etc. was the dwelling-house and freehold of the plaintiff [a&sjue hoc that it now is, and at the said several times when etc. was, or] and not the dwelling-house and freehold of the defendant, in manner and form as the defendant hath in his said plea alleged. And this the plaintiff prays may be inquired of by the country etc.^^ 7. Refly of Sfecific Denial — ^A written statement denying one or more of the allegations of defendant's answer. EXAMPLE Connecticut — (Title as in Reply of General Denial). The plaintiff denies the second paragraph of the answer. 8. Replication or Refly in Confession and Avoidance — ^A written statement admitting, either expressly or by failure to deny, the truth of the facts set up by defendant by way of excuse, justifica- tion or discharge, and alleging facts, which, as plaintiff contends, avoid such excuse, justification or discharge. EXAMPLES England — To the flea of liberum tenementum. (Title as in Gen- eral Demurrer above.) And the plaintiff, as to the plea of the defendant by him above pleaded, says that while the said dwelling-house was the dwelling- house and freehold of the defendant, and before the said time when etc., to wit on the . day of January 19 . . (the date of the demise) the defendant demised the said dwelling-house with the appur- tenances to the plaintiff, to have and to hold the same to the plaintiff, for and during and unto the full end and term of one year from thence next ensuing, and fully to be complete and ended, and so on from year to year, for so long time as they the plaintiff and defendant should respectively please, by virtue of which said demise the plaintiff afterwards, and before the said time when etc. entered into the said dwelling-house and became and was possessed thereof, and continued so thereof possessed, from thence until the defendant afterward, and during the continuance of the said demise, to wit, at the said time when etc. of his own wrong, broke and entered the said dwelling-house and committed the said several trespasses in the said plea mentioned, in manner 11 3 Chitty on Pleading. 70 and form as the plaintiff hath above thereof complained against the defendant. And this the plaintiff is ready to verify etc.^^ Connecticut — Refly of Fraud to Defense of Release, (Title as in Reply of General Denial.) 1. On February 15, 19. ., the plaintiff, then being the owner of ten shares of stock in the X Y Corporation, did with intent to de- ceive and defraud the defendant, falsely and fraudulently rep- resent to him that the X Y Corporation was the owner of assets worth $1,000,000 in excess of all its liabilities, that it was a going concern and was doing an extensive and active business in the manu- facture and sale of drugs. 2. Defendant relying on said representations, accepted said ten shares of stock in full satisfaction of the damages in the complaint mentioned. 3. Said representations were false, said X Y Corporation was not the owner of assets worth $1,000,000 in excess of its liabilities, it was not a going concern, doing an extensive business in the manu- facture and sale of drugs; on the contrary said X Y Corporation was totally insolvent and had ceased to do any active business and was in the course of being wound up, and said ten shares of stock were and are worthless. 4. Immediately on discovering said fraud, defendant tendered to plaintiff said ten shares of stock but plaintiff refused to accept them. A Reflication in Confession and Avoidance is to be met by one of the following: 1. General Demurrer — Similar to general demurrer to plea. 2. Special Demurrer — Similar to special demurrer to plea. 3. Rejoinder of Common or Specific Traverse — Similar to replica- tion of common or specific traverse. 4. Rejoinder of Special Traverse — Similar to replication of special traverse. 5. Rejoinder of General Denial — ^Where under the codes a re- joinder is permitted, it may put in issue all the facts alleged in the reply or replication. At common law a general traverse was not permitted in a rejoinder or any pleading subsequent thereto. 6. Rejoinder of Specific Denial — Similar to a reply of specific denial. 7. Rejoinder in Confession and Avoidance — Similar to replication in confession and avoidance. ^^ 3 Chitty on Pleading, 496. 71 EXAMPLE England — Rejoinder to Reflication of demise. (Title as in Gen- eral Demurrer.) And the defendant, as to the replication of the plaintiff to the said plea of the defendant says, that the. defendant, after the making of the said demise in the said replication mentioned, and while the plaintiff was possessed of the said dwelling-house in which etc. under and by virtue of the said demise, as tenant thereof to the defendant, and half a year before the day of January 19. . , to wit, on the . . day of July 19.., gave due notice to and then required the plaintiff to quit and deliver up the possession of the said demised dwelling-house, with the appurtenances, unto the defendant on the said day of January, a.d. 19.., then next fol- lowing; and by means thereof, afterwards, and before the said time when etc., to wit, on the day and year last aforesaid, the said tenancy, and the estate and interest of the plaintiff in the said demised dwelling-house, and the said place in which etc. with the appurtenances, wholly ended and determined; and thereupon the defendant, after the said tenancy was so ended and determined as aforesaid, to wit, at the said several times when etc. entered into the said dwelling-house in which etc. and committed the said alleged trespasses in the said plea mentioned, as he lawfully might for the cause aforesaid. And this the defendant is ready to verify, etc." A Rejoinder in Confession and Avoidance is to be met by one of the following: 1. General Demurrer. 2. Special Demurrer. 3. Surrejoinder of Common or Specific Traverse. 4. Surrejoinder of Special Traverse. 5. Surrejoinder of General Denial (where permitted by codes). 6. Surrejoinder of Specific Denial (where permitted by codes). 7. Surrejoinder in Confession and Avoidance. EXAMPLE England — Surrejoinder of Waiver of Notice to Rejoinder or Notice to Quit. (Title as in General Demurrer). And the plaintiff, as to the rejoinder of the defendant to the replication of the plaintiff to the said plea of the defendant says 1' 3 Chitty on Pleading-, 519. 72 that after the giving of the said notice in the said rejoinder men- tioned, and before the expiration of the said tenancy, to wit on the isth day of September 19.., the defendant waived, relin- quished and abandoned the said notice, and then assented and agreed with the plaintiff to the continuance of the said tenancy in the said replication mentioned, and the said tenancy did continue from thenceforth until and at and after the said time when etc. And this the plaintiff is ready to verify, etc.^* A Surrejoinder in Confession and Avoidance is to be met by one of the following: 1. General Demurrer. 2. Special Demurrer. 3. Rebutter of Common or Specific Traverse. 4. Rebutter of Special Traverse. 5. Rebutter of General Denial (where permitted by codes). 6. Rebutter of Specific Denial (where permitted by codes). 7. Rebutter in Confession and Avoidance. EXAMPLE England — Rebutter of fraud in obtaining the waiver. (Title as in General Demurrer.) And the defendant, as to the surrejoinder of the plaintiff to the rejoinder of the defendant to the replication of the plaintiff to the plea of the defendant, says that the plaintiff caused and procured the defendant to waive, relinquish and abandon the said notice in said rejoinder mentioned and to assent and agree with the plaintiff to the continuance of said tenancy in said replication mentioned through and by means of the fraud, covin and misrepresentions of the plaintiff.-'^ And the defendant further says that he, the de- fendant, within a reasonable time next after said fraud, covin and misrepresentation came to his knowledge, to wit, on the 20th day of September 19., rescinded and abandoned his said waiver, re- linquishment, assent and agreement, and so notified said plaintiff on said 20th day of September 19... And this the defendant is ready to verify. ■'^ 3 Chitty on Pleading, 522. ■^° Id., 34, gives this allegation, but it would hardly be sufficient in modern code pleading. 73 A Rebutter in Confession and Avoidance is to be met by one of the following: 1. General Demurrer. 2. Special Demurrer. 3. Surrebutter of Common or Specific Traverse. 4. Surrebutter of Special Traverse. 5. Surrebutter of General Denial (where permitted by codes). 6. Surrebutter of Specific Denial (Vvhere permitted by codes). 7. Surrebutter in Confession and Avoidance. It is conceivable that the rebutter alleging fraud in the procure- ment of the waiver of notice to quit might be met by a surrebutter of afiirmance of the original waiver or of waiver of the fraud after discovery of the fraud. If so it would be met by a nameless pleading. In order to close the pleadings in the English trespass case of which the previous pleadings have been given, there follow a surrebutter of common traverse, and a similiter. SURREBUTTER England — (Title as in General Demurrer). And the plaintiflF, as to the rebutter of the defendant to the surrejoinder of the plaintiff to the rejoinder of the defendant to the replication of the plaintiff to the plea of the defendant, says that he the plaintiff did not cause or procure the defendant to waive, relinquish or abandon the said notice in the said rejoinder mentioned or to assent or agree to the continuance of said tenancy in the said replication mentioned through or by means of the fraud, covin or misrepresentations of the plaintiff, in manner and form as in said rebutter is alleged. And of this the plaintiff puts himself upon the country, etc.^° SIMILITER England — (Title as in General Demurrer). And the defendant as to the said surrebutter of the plaintiff, and whereof he hath put himself upon the country, doth the like.^^ ^° See 3 Chitty on Pleading-, 522. "W. 523. 74 Chapter VI HOW TO READ AND ABSTRACT A REPORTED CASE The Report. The report of a case may be merely a memorandum of a portion of the proceedings before a trial judge, for example, its rulings upon evidence, or a decision upon a demurrer or upon a motion for a nonsuit or a directed verdict; it may be a record of a hearing before a trial judge or the court en banc upon a motion in arrest of judgment, or for a new trial, or for judgment notw^ith- standing the verdict, or to take off a nonsuit and enter judgment upon a verdict taken by consent; or it may be an account of proceedings before an appellate court. If it is an adequate report, it will usually contain (i) the title of the case, (2) headnote or syllabus, (3) state- ment of the case, (4) abstract of arguments of counsel, (5) opinion or opinions of the court, and (6) a statement of the disposition made of the case. Title. The title of a case in an adversary proceeding in the trial court is usually made up of the names of the parties litigant with the designation of the character in which they respectively appear, as, Samuel Student, Plaintiff, v. Peter Policeman, Defendant; or Samuel Student, Plaintiff, v. Peter Policeman, Defendant; Oliver Officer, Intervener. In non-adversary proceedings and even in some adversary proceedings the title contains the name of but one party, as In Re Peter Policeman, Bankrupt, or Ex parte Samuel Student. In the latter class of case, the title remains the same in the appellate courts; in the former, the practice differs. In some jurisdictions when the defendant appeals or sues out a writ of error, his name appears first, as Peter Policeman, Appellant (or Plaintiff in Error), v. Samuel Student, Appellee (or Respondent or Defendant in Error). Where the parties are designated as plaintiff or defendant in error, the case must be read with great care, for at times the court may use plaintiff to mean plaintiff below and at other times to mean plaintiff in error. In order to avoid such possible confusion, the practice has been adopted in some jurisdictions of retaining the names of the 75 parties in their original order and adding the designation of the char- acters in which they respectively appear in the trial and appellate courts, as Samuel Student, Plaintiff-Appellee, v. Peter Policeman, Defendant-Appellant; others retain them in the original order and add merely the designation in which they appear in the appellate court, as Samuel Student, Respondent, v. Peter Policeman, Appel- lant. Head-note or Syllabus. The headnote or syllabus — sometimes made by the reporter, sometimes by the judge who writes the opinion — purports to be a brief abstract of the opinion of the court. Headnotes vary greatly in length, style and accuracy. Some set forth the facts in detail with a brief statement of the decision; some state what is intended to be the abstract proposition of law for which the case stands; and some combine the two forms. But whatever their form and whatever their authorship, headnotes are not part of the opinion and are not to be treated as such. They are never to be relied upon until checked up by the opinion. Often they express mere dicta; fre- quently they are inaccurately phrased, and in some instances they are absolutely wrong. Statement of the Case. The statement of the case, furnished either by the reporter or by the court, usually precedes the opinion, but is sometimes, in whole or in part, embodied in it. For example, in Tinn V. Hoffman & Co., 29 Law T. R. (N.S.) 27 1; Corbin's Cases on Contracts, 155, the facts are set forth at length preceding the opin- ion; in Stanton v. Dennis, 64 Wash. 85, Corbin's Cases, 11, they are stated by the court at the opening of the opinion ; in Royal Insur- ance Company v. Beatty, 119 Pa. 6, Corbin's Cases, 80, they are found in the middle of the opinion, and in Lewis v. Browning, 1 30 Mass. 173, Corbin's Cases, 42, they are given in the last paragraph of the opinion. Besides showing the facts updn which the controversy turns, the statement of the case should set out the manner in which the points in dispute were brought to the attention of the trial court, whether, for example, on an objection to the introduction of evi- dence, on a demurrer, or on a motion. If the report is of a review of the trial court's decision, the statement should also make clear the proceedings in the trial court so far as pertinent to the questions to be reviewed, the manner in which the case is brought to the reviewing court, and the grounds on which a reversal is sought. Argument of Counsel. An abstract of the arguments of counsel is found in most of the older reports; but it has become customary 76 with modern reporters usually to omit all reference thereto, except in so far as the opinion mentions counsel's contentions for the pur- pose of adopting or rejecting them. Usually the names of counsel are printed, sometimes preceding the opinion, and sometimes at the end of the case. The Ofinion. The opinion is ordinarily written for the court by one member thereof, whose name is indicated. Sometimes it is anony- mous, and it is then in America designated a -per curiam opinion. Occasionally one or more judges disagree with the majority and write dissenting opinions, setting forth the grounds for such dis- agreement. At times the several members of the court write separate opinions, although all agree in the result. Disfosition of Case. The statement of the disposition made of the case is usually very brief, such as "Rule discharged," or "Rule abso- lute," or "Order affirmed," or "Judgment reversed." Casebooks. In the books of selected cases upon various topics of the law, used in most law schools, the title includes not only the names of the parties, but also the date of the decision and a reference to the book and page of the official report wherein the case is reported. The headnote is not printed. Frequently the arguments of counsel are con- densed or entirely omitted. In some cases only so much of the state- ment of facts and of the opinion is given as relates to particular points under consideration. Dictum or Decision. In reading and analyzing any opinion of a judge or court, the true function of judicial tribunals in our scheme of government must be constantly borne in mind, namely, the settle- ment of actual controversies duly presented to them. It is no part of the duty of a court to pass upon moot cases or to answer hypothetical questions. Consequently when a real case is presented, the court performs all of its proper functions in deciding the issues actually submitted to it. Does this mean that it should simply render its deci- sion that A should recover from B, or that the trial court ruled correctly or erroneously without indicating the reasons therefor? As was suggested in the first chapter, the law is the sum of the rules administered by the courts. These rules' are deduced from the cases in which they are applied. In theory the court to which a new prob- lem is presented attempts to decide it as it believes all cases on sub- stantially similar facts should be decided. In other words, it attempts to formulate a general rule or statement of a principle applicable to all cases with the same operative facts and to determine the instant 77 case accordingly. It is thereby laying down a rule by which the legal relations of the parties litigant are determined ex fast facto and by which the conduct of other parties is expected to be ordered in the future. It is highly desirable that judge-made law should have suffi- cient uniformity and stability to enable members of the community to know in advance with substantial accuracy the legal effect of a particular line of conduct. Consequently prior decisions in the same jurisdiction should be followed in the absence of weighty reasons to the contrary. It is therefore clear that it is the proper function of the court to indicate in its opinion the rule which it is applying and the reasons why it deems such rule to be applicable. Anything further is unnecessary; and while it may be interesting, enlightening, and altogether sound, it cannot be considered of equal weight with those pronouncements of the court which are essential to the decision. Those portions of an opinion not necessary to the decision are usually called dicta or obiter dicta. When a court in discussing a case at bar, by way of illustration puts a hypothetical case and renders a decision thereon; or when it goes beyond the facts of the case at hand and enunciates a rule much broader than the issues submitted demand; or when the judge writing the opinion ventures a statement as to what the law is or should be upon a collateral matter, the court or judge, as the case may be, promulgates merely a dictum. For instance, if a court in passing upon the enforceability of a gratuitous written unsealed promise should lay down the rule that no promise was enforceable unless supported by a consideration, this pronouncement would be inapplicable in a later action upon a promise under seal. In the case of Dickinson v. Dodds, 2 Chancery Division 463, Corbin's Cases, 174, I Williston's Cases on Contracts, 50, there were just two questions that it was necessary for the court to decide. The first was whether a certain memorandum signed by Dodds constituted a contract or a mere oifer, and the second was, whether, if it were an oflFer only, Dickinson's acceptance was made while the ofFer was still open. Mellish, L. J., however, in the course of his opinion, delivered the following dicta: ( i ) "It is not necessary that both parties should be bound within the Statute of Frauds, for, if one party makes an offer in writing, and the other accepts it verbally, that will be sufficient to bind the person who has signed the written document." (2) "Assuming Allan to have known that Dodds had made the offer to Dickinson, and had given him till Friday morning at 9 o'clock to accept it, still, in point of law, that 78 could not prevent Allan from making a more favorable offer than Dickinson, and entering at once into a binding agreement with Dodds." (3) "It is admitted law that, if a man who makes an offer dies, the offer cannot be accepted after he is dead, and parting with the property has very much the same effect as the death of the owner, for it makes the performance of the offer impossible." Had all the justices agreed with Mellish, the case could not be regarded as of primary authority on these points because these utterances were not necessary for the decision of any issue presented. On the other hand, those portions of the opinion setting forth the rules of law applied by the court, the application of which were required for the determination of the issues presented, are to be con- sidered as decision and as primary authority in later cases in the same jurisdiction. For example, the authority of Dickinson v. Dodds is not limited to controversies wherein the parties have those identical names, or the memorandum contains precisely the same words, or the offeree goes through exactly the same mental processes and does the same overt acts, and the offerer's conduct and the offeree's notice of it are duplications in detail of those of Dodds and Dickinson. Indeed, an examination of that case shows it to be primary authority for the following propositions: i. In construing a writing, all portions of it must be taken into consideration. This is nowhere distinctly stated by the court, probably because it is too well settled to call even for statement and was conceded by both sides. As the point was neither argued nor discussed, the decision would not be of great weight but would show the court's understanding and application of the rule. 2. An offerer whose promise to keep the offer open until a specified date is neither under seal nor supported by a consideration is privi- leged to revoke it before that date. 3. The power of an offeree to ac- cept an offer is destroyed when before acceptance knowledge that the offerer has revoked the offer reaches the offeree, even though he re- ceives such knowledge from some source other than the offerer or his agent. Neither the second nor the third proposition can be found ver- batim in any of the opinions, but they are clearly at the foundation of the opinions of both James, L. J., and Mellish, L. J., and the sub- stance of them is stated by them. This case then may be said to be a decision upon three propositions which are nowhere specifically phrased in it, and to contain only dicta as to three propositions which may be quoted in the exact language of Lord Justice Mellish. Same — Several Errors Alleged. There are many cases where a 79 hypercritical examination of the opinion might lead one to say that none of the several propositions enunciated by the court constitutes decision, but all must be classed as dicta. For example, defendant appeals from an order denying a new trial, and assigns four separate and distinct errors. The appellate court determines that the trial court was wrong upon each ground of error assigned. Now it may be said that all the appellate court is called upon to determine is whether the trial court erred in denying a new trial. If the latter court was wrong in one of the respects specified, its order must be reversed. Consequently, the appellate court's opinion upon one only of these points is decision, and upon all others constitutes dicta; and since it has not placed its decision exclusively upon one ground, the entire opinion must be regarded as dicta. This reasoning is, however, too refined for practical purposes. The appellate court may very properly give the trial court instruction how to proceed on a new trial. While it is true that it need have considered only one of the alleged errors, in order to decide the case, yet each one of them was distinctly pre- sented to it for consideration and was deliberately passed upon. A somewhat similar situation is presented if, in the above case, the court determines that the trial court did not err in the first three respects assigned, but did err in the fourth. The pronouncement upon the fourth error is clearly decision ; but what of that upon the first three? Here, again, these three issues were distinctly presented and deliberately considered, and the court's determination thereof must be treated as decision and not as dicta. Obviously, if the appel- late court finds no error in any of the respects assigned, its findings on all four are decision, for they were essential to the determination that the trial court's order be affirmed. The Value of Dicta and of Foreign Decisions, etc. While a pre- vious case is entitled to weight as primary authority only upon the points necessarily decided, it must not be assumed that a judicial dictum is without value. A well-considered dictum by a judge of ability and learning may have a powerful influence upon the develop- ment of the law. It may be considered of much greater worth than a square decision from a foreign jurisdiction or even from a sister state. It cannot be safely ignored by student or practitioner. Of course, normally, prior decisions from the same jurisdiction will receive chief attention; cases in point from other jurisdictions, dicta from the same and from other jurisdictions and the opinions of text writers, commentators and legal essayists will be considered of less 8o moment, but all of them may be of importance in aiding the court to reach a satisfactory conclusion in a particular case. Prior decisions of the court of last resort, all the inferior courts of the same juris- diction will feel bound to follow except in most extraordinary cir- cumstances, and the burden of overthrowing them even in the court which rendered them will be heavy. Prior dicta are given respectful attention, but their influence depends very largely upon the particu- lar circumstances under which they were uttered. Decisions and dicta from other jurisdictions owe their persuasive force in a great degree to their inherent worth, but the courts do not overlook the importance of having harmonious rules upon the same subject in the several states and, indeed, in all the jurisdictions with the same law system. The published views of legal writers, except in so far as supported by judicial decisions, should have their influence measured only by their reasonableness and utility. Abstracting a Case. As preparation for classroom work, the stu- dent is in each course required to read an assigned number of cases. He should get those cases so thoroughly in mind as to be able to state them in the same manner in which counsel, in argument of a case at bar, would present his authorities to the court. This he can never do without reading and rereading each of them until he has a complete understanding of it. Any unfamiliar words or phrases he should look up in a law dictionary. As an aid in thus fixing them in mind, he should make a careful abstract of each case. This abstract, like the statement of a case in argument, should contain the following parts, and ordinarily the parts should be arranged in the order indicated: 1. Title, date, and place where reported in the reports. 2. Statements of the facts in the case, including a statement of the manner in which the issue was presented to the trial court. That is, besides the facts relevant to the dispute between the parties, it should be shown whether the trial court considered the case on demurrer, or on a trial on the merits, or on motion in arrest of judg- ment or for a new trial, etc. 3. Statement of the disposition made of the case by the trial court, including such rulings of the court as are pertinent to the issues pre- sented to the appellate court. 4. Statement of the manner in which the case comes before the appellate court, including the grounds of error alleged by appellant. 5. Decision of the appellate court. 8i 6. Reasons upon which the decision is based, including, where im- portant, the manner in which the court meets the argument advanced by counsel. The foregoing suggestions assume that the case to be abstracted is not a decision of the court of first instance. Where such is not the fact, the abstract must be modified to meet the particular case ; but the essential elements indicated should appear. A sample abstract of the case of Dickinson v. Dodds follows: Dickinson v. Dodds, 2 Ch. Div. 463, 1876. June 10 Dodds delivered to Dickinson a memorandum agreeing to sell to Dickinson certain premises for £800, to which he attached a postscript stating "this offer" to be open till June 12, 9 a.m. In the morning of June 1 1 Dickinson decided to accept, but did not communicate his ac- ceptance to Dodds. The same afternoon Dickinson learned that Dodds had agreed to sell the premises to one Allan. Thereafter and before 9 A.M. June 12, Dickinson gave Dodds his acceptance in writing. Dodds refused to convey. Dickinson brought suit in equity against Dodds and Allan for specific performance of the alleged agreement. The cause was tried before Vice-Chancellor Bacon, who on the above facts decreed specific performance. The defendants appealed. On appeal the plaintiff's bill was dismissed. Dickinson was not entitled to recover because 1. The memorandum contained a mere offer, which was revocable at any time before acceptance. 2. The revocation of an offer is effective as soon as the offeree knows that the offer has been revoked, even though the offerer has given him no notice thereof. Explanation of Terms Rule nisi. When a party obtains a rule nisi for certain desig- nated relief, he in effect secures an order to the adverse party to show cause why such relief should not be granted. Rule refused. This may mean either that the court refused to grant the order to show cause, or refused the relief asked. In Payne v. Cave, Corbin's Cases on Contracts, 163, I Williston's Cases on Contracts, i, for example, where the plaintiff moved to set aside the nonsuit, the phrase, rule refused, at the end of the case, signifies simply that the court denied the motion. 82 Rule absolute. After a party has obtained a rule nisi and has had a Ruh discharged, hearing thereon, if the court grants the relief prayed for, it makes the rule absolute; if it denies the relief, it discharges the rule. Arrest of Judg- After verdict for plaintiff, the defendant may move ment. the court to prevent the entry of judgment on the verdict for defects in substance in plaintiff's pleading. If the motion is granted, the judgment is said to be arrested. Judgment non ob- After verdict for defendant, plaintiff may move for stante Veredicto, entry of judgment in his favor notvifithstanding the {^Judgment not- verdict on the ground that defendant in his plea con- withstanding fessed the wrong alleged in the declaration and in- the Verdict.) sufficiently avoided it. Under modern statutes this may be granted to either party where the undisputed evi- dence shows conclusively that he should prevail. Chapter VII REPOSITORIES OF THE LAW AND SUG- GESTIONS FOR USING THEM The repositories of the law contain materials by the use of which the lawyer is assisted in predicting, with more or less accuracy, what the courts, or other tribunals established by society, will do when properly set in motion, how they will solve controversies properly brought before them. Some of these repositories contain materials which are usually thought to be of controlling or almost controlling influence, and others, materials of merely persuasive effect. The former are generally — and are here, for convenience — designated books of primary authority; the latter, books of secondary authority. In addition there are books which do not contain such materials but only helps for finding them. They are called herein key books. BOOKS OF PRIMARY AUTHORITY A. Statutes in the United States. I . Constitutions. a. Constitution of the United States. Usually published in compilations of federal statutes, and 83 frequently in compilations of state statutes. For example: United States Revised Statutes (2d ed.), pp. 17-32. U. S. Compiled Statutes, Vol. 10, p. 13062, Vol. ii (Annotated) . Federal Statutes Annotated, Vols. 10, 11 (Annotated). Barnes, Federal Code, pp. 23-38. General Statutes of Connecticut, Revision of 1 91 8, pp. 23-40. Ohio General Code revised to 1921, Throckmorton, pp. V-XII. b. Constitutions of the several states. Usually the constitution of a state is published in the com- pilation of the statutes of that state. For example: General Statutes of Connecticut, Revision of 1 91 8, pp. 41-67. Throcicmorton's Ohio General Code revised to 1 92 1, pp. XXVI-XLVII. 2. Treaties. Treaties of the United States with foreign nations and with the Indian tribes are contained in the U. S. Statutes at Large. They are also contained in the U. S. Treaty Series published by the Government Printing Office. The treaties to 1 91 3 are to be found in the collection of William T. Malloy, issued in 1 910 by the Government Printing Office, and the supplement thereto by Charles Garfield, issued in 191 3. 3. Federal Statutes. a. United States Statutes at Large. — These contain all acts of Congress arranged chronologically, treaties, concurrent reso- lutions and proclamations of the President, as originally enacted or promulgated. At the close of each session of Congress the above-mentioned documents of that session are published by the Government. b. Revised Statutes of the United States. — The first edition con- tains all acts of Congress of a general and permanent nature in force December I, 1873. The second edition was pub- lished in 1878, and until 1 901 was kept up to date by supplements issued periodically. c. Compiled Statutes of the United States. — ^The twelve volumes originally issued contain all acts of Congress of a general 84 and permanent nature in force January l, 1 91 5. A two- volume supplement brings the work down to March 4, 1 91 9. These twelve volumes contain also extensive annota- tions to the statutes, which, of course, fall without the class of material characteristic of books of primary authority. A so-called "Compact Edition" contains in one volume the statutory text found in the original twelve volumes, without annotations, and it has been brought to January i, 1923, by a one-volume supplement. Supplements keeping the material up to date are published in the Federal Re- porter. d. Federal Statutes Annotated. — ^The second edition contains in twelve volumes all the acts of Congress of a general and permanent nature in force on January i, 191 6. Five annual supplements bring the work to January i, 1923. Quar- terly pamphlet supplements keep the text up to date. All these publications contain by way of annotations much material characteristic of books of secondary authority. e. Barnes Federal Code. — ^This contains the acts of Congress of a general and permanent nature in force December 31, 1 91 8, classified and arranged as in the Revised Statutes of the United States. A one-volume supplement brings it down to January, 1923. 4. Statutes of the several states. a. Session Laws. — After the close of each legislative session in any state, the enactments of the legislature during that ses- sion, arranged chronologically, are published by the state or under its authority. They are commonly called session laws, but in some states they are otherwise designated. For example, in Connecticut they are usually referred to as Public Acts, in Florida as General Acts, in Wisconsin as Session Laws. b. Compilations, Consolidations, Revisions, Codes. — ^At intervals in each state, the legislature provides for the rearrangement or restatement or both of all existing statutory enactments. In some instances the provision is merely for republishing the statutes in chronological order omitting repealed and obsolete enactments; in others it is for republication with arrangement according to subject matter; in others for a rewriting and restating of the existing laws with needed amendments. In the last case the restatement is enacted by the legislature. In the others, the legislature usually merely authorizes the rearrangement of statutes then in force with- 85 out alteration or amendment and makes the new publication only prima-facie evidence of the law, as it exists in the pre- viously enacted statutes. An example of the former is found in the Revised Laws of Minnesota 1 905; of the latter in the General Statutes of Minnesota, 191 3. In some instances the restatement or revision of only a portion of the statutory law is provided for, as in the case of the New York Civil Practice Act, 1 91 9. 5. Municifal Charters. Frequently, and formerly always, these were merely acts of the legislature. Often they are now so-called Home Rule Charters, adopted by vote of the electors of the munici- pality. 6. Municifal Ordinances. Ordinances passed by the legislative body of a municipality pur- suant to valid authority given by its charter have the same effect within the municipality as do enactments of the state legislature within the state. 7. Regulations and Orders of Administrative Commissions and Officers. These, when made pursuant to properly delegated authority, have substantially the effect of statutes, e.g., Regulations and orders of the State Board of Health of Minnesota. 8. Rules of Court. For the conduct of litigation in the various courts, rules are pro- mulgated by them which, within their proper sphere, have the force of an enactment of the legislature. They are usually published as an appendix to reports of decisions, and ordinarily they can be obtained in pamphlet form from the clerks of the respective courts. B. Statutes in England. 1 . Constitutions — None. 2. Treaties. The Treaties of Great Britain with other nations from 1829 to date are published in British and Foreign State Papers (112 volumes to 1922) and the treaties from 1892 to date in the Treaty Series. 86 3. Statutes. a. The Statutes Revised. — The second edition in twenty volumes contains in chronological order the live statutes from 1235 to 1900. An official publication. b. Public General Statutes. — These contain the statutes from 1 90 1 to date. There is an official edition, and an unofficial Law Reports edition. c. Chitty's Statutes of Public Utility. — The first 16 volumes con- tain the statutes which the unofficial publishers deem of general importance through 1910; the 17th and 1 8th volumes, through 1 91 6, and annual supplements, to date. 4. Statutory Rules and Orders. These contain in 13 volumes the statutory rules and orders of general and permanent importance in effect December 31, 1903. Annual volumes bring and keep the work up to date. 5. Rules of Court. C. Reports of Judicial Decisions in the United States. I . Reforts of Decisions of Federal Courts. a. United States Supreme Court Reports. 1 789-1 900, Dallas, 4 volumes. 1801-1815, Cranch, 9 volumes. 1 8 16-1827, Wheaton, 12 volumes. 1 828-1 842, Peters, 16 volumes. 1 843-1 860, Howard, 24 volumes. 1 861-1862, Black, 2 volumes. 1 863-1 874, Wallace, 23 volumes. 1875 to date, United States Supreme Court Reports be- ginning with Volume 91. The volume issued October, 1923, is number 259. Dallas and Cranch were unofficial reporters. Wheaton in 1 817 was appointed official reporter, and since that date the decisions of the court have been reported by an official reporter. The reports from 1789 to 1874 inclusive are cited as volumes I to 90 United States Supreme Court Reports as well as by the name of the reporter. The reports since 1875 are not cited by the name of the reporter. b. United States Supreme Court Reporter. — ^This is an unofficial publication reporting the decisions of the United States Supreme Court beginning with those in Volume 106. From three to five volumes of the official reports are contained in 8? one volume of the Reporter. Advance sheets report current decisions. c. United States Supreme Court Reports, Lawyers' Edition. — The 66 volumes of this unoiEcial publication contain all cases reported in the 259 volumes of the regular reports; and semi-monthly advance sheets report the current deci- sions. This publication contains much material properly be- longing to books of secondary authority, e.g. editorial head- notes, summaries of briefs of counsel, editorial annotations, tables of cases affirmed and reversed, etc. d. Federal Cases. — This is an unofficial reprint in 31 volumes of all published decisions of the United States Circuit Courts and of the United States District Courts from 1789 to 1879. ^' ^^ almost entirely superseded the reports from which it is reprinted. The cases are arranged alphabetically and numbered consecutively. They are cited by title and number, rather than by title, volume and page. e. Federal Reporter. — ^This contains all the published deci- sions of the United States Circuit Courts from 1 880 to 1 91 2, when they were abolished, of the United States District Courts from 1880 to date, and of the United States Circuit Court of Appeals from its organization in 1 891, and of the Commerce Court. f . Court of Claims Reports. 1855-1856, Devereux's Reports. 1863 to date. Court of Claims Reports. g. Court of Customs Appeals Reports. — The publication of the decisions of this court began in 1910. Current decisions are published in the weekly pamphlet of Treasury Decisions, h. Reports of Decisions of Courts of District of Columbia, the Territories and Outlying Possessions of the United States. — See below under Reports of Decisions of Courts of the Several States, etc. Reports of Decisions of the Courts of the Several States, Territories, and Possessions of the United States. a. So-called Official Reports. A complete list of the reports of the courts of the several states and territories, the District of Columbia, Porto Rico, and the Philippine Islands will be found in Hicks, pages 559-571 ; in the appendix of the pamphlet. Law Books and Their Use, published by the Lawyers Cooperative Publish- ing Co. and Bancroft-Whitney Co. and distributed free of charge, and in numerous other easily accessible publica- 88 tions. Consequently, they will not be enumerated here. It is necessary only to mention that some of the earlier reports in some jurisdictions are by unofficial reporters, and are in such condensed or abbreviated form as to be of less value than current reports. An acquaintance with the system of courts in a jurisdiction is sometimes required in order to be able to distinguish the reports of inferior and inter- mediate appellate courts from those of courts of last re- sort. Unofficial Reports. ( I ) The Reporter System. — This system reports all current decisions of all appellate courts of the United States and of the several states, and some decisions of lower courts. These reports are usually published much in advance of the official reports. Weekly advance sheets are issued. All opinions of the courts in question are printed in full. The United States Supreme Court Reporter and the Federal Reporter have been noticed above. The other units of the system are shown below. They report the decisions of the courts of the juris- dictions named, beginning (unless otherwise stated) with page i of the indicated volume of the so-called official reports. (a) Atlantic Reporter (begins 1 885) Connecticut — Vol. 53 Delaware — Chancery, Vol. 6 Houston, Vol. 7 Marvel, Vol. I Pennewill, Vol. I Boyce, Vol. i Maine — Vol. 77, page 408. Maryland — Vol. 64 New Hampshire — ^Vol. 63, page 446. New Jersey — Law — Vol. 47, page 349 Equity — Vol. 40, page 345 Pennsylvania — Vol. no Rhode Island — Vol. 15 Vermont — Vol. 58 (b) Northeastern Reporter (begins 1885) Illinois (Sup. Ct.) — Vol. 114 Indiana (Sup. Ct.) — Vol. 102 (App. Ct.)— Vol. I Massachusetts — ^Vol. 139 89 New York — ^Vol. 99 Ohio — ^\'ol. 43 (c) Northwestern Reporter (begins 1879) Dakota — Vol. i Iowa — Vol. 5 1 Michigan — ^Vol. 41 Minnesota — Vol. 26 Nebraska — Vol. 8, page 294 Nebraska Commissioners' Decisions, Vol. I North Dakota — Vol. i South Dakota — Vol. i Wisconsin — Vol. 46. (d) Pacific Reporter (begins 1883) Arizona — ^Vol. i California — Supreme — Vol. 64 Appellate — ^Vol. I Colorado — Supreme — ^Vol. 7 Appellate — Vol. i Idaho — Vol. 2 Kansas — Supreme — Vol. 30 Appellate — Vol. i Montana — Vol. 4 Nevada — Vol. 17 New Mexico — ^Vol. 3 Oklahoma — Supreme — Vol. I Criminal Appeals — Vol. I Oregon — ^Vol. 1 1 Utah— Vol. 3 Washington — ^Vol. i Territory — Vol. 2 Wyoming — Vol. 3 (e) Southeastern Reporter (begins 1887) Georgia — Vol. 79 Georgia Appellate — Vol. I North Carolina — ^Vol. 96 South Carolina — ^Vol. 26 Virginia — ^Vol. 82, page 964 West Virginia — Vol. 29 (f) Southern Reporter (begins 1887) Alabama — Vol. 81 Alabama Appellate — ^Vol. i Florida — Vol. 23 Louisiana — Vol. 39 (Annotated) 90 Mississippi — Vol. 64 (g) Southwestern Reporter (begins 1886) Arkansas — Vol. 47 Kentucky — ^Vol. 84, page 202 Indian Territory — Vol. I Missouri (Supreme) — Vol. 89 (Appellate) — ^\^ol. 94 (Also part of Vol. 93) Tennessee — ^Vol. 85 Texas — Vol. 66 (Appellate) — ^Vol. I (Civil Appeals) — Vol. I (Criminal Reports) — Vol. 21 (h) New York Supplement (begins 1888) This reports the decisions of the lower courts of New York which are published in the following reporters and many not published in any of them. Commencing with volume 184 it pub- lishes also decisions of the New York Court of Appeals. Abbott — Vol. 23 Appellate Division — Vol. I Civil Procedure — ^Vol. 14 Civil Procedure Reports, New Series — Vol. I Bradbury's Pleading & Practice Reports — ^Vol. I Demarest's Surrogate — Vol. 6, page 413 Connolly's Surrogate — ^Vol. i Gibbons' Surrogate — Vol. I Power's Surrogate — Vol. I Mills' Surrogate — Vol. i Daly — Vol. 14, page 497 Hun — Vol. 48, page 304 Miscellaneous Reports — ^Vol. I Criminal Reports — Vol. 6 Superior Court- — -Vol. 56 Silvernail — Vol. I Annotated Cases — Vol. I Leading Cases Annotated — Vol. I Reforts of Selected Decisions of Federal and State Courts. ( General. ) These are series of cases believed by the editors and compilers to be of general value and authority, dealing usually with ques- tions which are of more than local value, or which are novel, 91 or upon which there is a conflict of authority. The volumes in which they are published contain, by way of annotation, much material of secondary authority. (See below Books of Secondary Authority F.) a. The Trinity Series. (1) American Decisions, lOO volumes (1760-1869). (2) American Reports, 60 volumes (1870-1887). (3) American State Reports, 140 volumes (1887-1917). b. Lawyers Reports Annotated. (i) L.R.A., First Series, 70 volumes (1888-1905). (2) L.R.A., New Series, 52 volumes (1906-19 1 4). (3) L.R.A., Third Unit, 24 volumes (1915-1918). c. American and English Annotated Cases, 21 volumes (1906- 1917). Cases from Canadian and British reports are in- cluded. d. American Annotated Cases, 32 volumes (1912-1918). This series represents a consolidation of American State Reports and American and English Annotated Cases. e. American Law Reports Annotated. This series represents a consolidation, and is a continuation of. Lawyers Reports Annotated and American Annotated Cases. Publication began in 191 9; about six volumes per year are issued. Reforts of Selected Decisions of Federal and State Courts upon Special Subjects. a. American Bankruptcy Reports. Contains bankruptcy cases in Federal and State Courts, 49 volumes ( 1 899-1 923). b. American Bankruptcy Reports, New Series, 1923 to date. c. American Criminal Reports, 15 volumes (1877-1909). Contains selected criminal cases from American, English, Scotch, Irish and Canadian law reports. d. Negligence and Compensation Cases. Contains selected cases dealing with negligence, employer's liability and workmen's compensation decided by American, English and Canadian Courts from 191 2 to date. This series is a continuation of American Negligence Reports, 21 volumes (1896-1910), which in turn was a continuation of American Negligence Cases, 17 volumes ( 1 789-1 896). e. Public Utility Reports Annotated. Contains what the editors deem important decisions and orders of commissions and courts concerning regulation of 92 public utilities from 191 5 to date. Advance sheets are issued biweekly, f. For a list of other series of selected cases (which have been discontinued), see Hicks, Materials and Methods of Legal Research (1923), p. 559. D. Reports of Judicial Decisions in England. I . Prior to the Year Books. a. Bigelow, Placita Anglo-Normanica, containing miscellaneous cases from William 1 to Richard I (1066-1195), collected by Melville M. Bigelow from various historical documents and published in 1879. b. Plea Rolls. — Our earliest known plea rolls date from 1 1 94. The plea roll of a term contained a record of each case tried at the term, giving "the names of the parties to the (an) action, the nature of the action, the plaintiflF's statement of his case, the defendant's defence, and the pleas upon which both parties finally rested their case, the issue left to a jury, if an issue were left to one, the verdict of that jury if one were ever delivered, and the judgment of the Court upon that verdict."^ All these rolls in the Curia Regis through 1 20 1 have now been made accessible in the follow- ing: (i) Palgrave, Rotuli Curiae Regis (1194-1199), published in 1835. (2) Maitland, Three Rolls in King's Court (1194-1195), published in 1 891. (3) Curia Regis Rolls, published by the British Govern- ment in 1923. Cases from other rolls are available in^ (i) Baildon, Select Civil Pleas, 1889 (1200-1203). (2) Maitland, Select Pleas of the Crown, 1888 (1200- 1225). (3) Healey, Somerset Pleas, 1897 (1200-1257). (4) Clay, Three Yorkshire Assize Rolls, 1911 (1202- 1208). (5) Maitland, Gloucester Pleas of the Crown, 1884 (1221). (6) Watson, Bristol Pleas of the Crown, 1902 (1221). 1 Bolland, The Year Books 27, 28 (1921). ^ The date immediately f oUovf ing the title is the year of publication ; the date in parenthesis indicates the period covered by the cases. 93 (7) Parker, Calendar of Lancashire Assize Rolls, 1904- 1905 (1241-1285). (8) Page, Three Northumberland Assize Rolls, 1891 (1256-1279). (9) Bracton's Note Book, 1887 (1218-124.0). (10) Phillimore, Pleas of the Court of King's Bench, 1898 (1297). And excerpts from rolls from the reigns of Richard I to Edward III are found in a compilation made during the reign of Elizabeth and known as Abbreviatio Placitorum (l 189-1327). Records of some early state trials with reports of testimony, etc., are published in (1) Cobbett and Howell, State Trials, 1809-1828 (1163- 1820). (2) Tout and Johnstone, State Trials of Edward I, 1906 (1289-1293). 2. The Year Books. "So far as we know the earliest Year Book now in existence is one of the eighteenth year of Edward I, 1289-1290. From that time onwards until 27 Henry VIII, 1535, we have a fairly per- fect succession of them. There are a few terms of Edward I's reign missing; and in the reigns of Henry VII and VIII there are intermissions. They stop finally, as I have just said, in 1535, when their place was taken by printed reports made by counsel who published them in their own names."^ The reports in the Year Books are to be sharply distinguished from the records in the plea rolls. The two supplement each other. The reports, as Mr. Bolland tells us, "were intended, not to show what had actually been determined with regard to certain special facts in litigation between A and B, a matter which it was highly desirable should be authorita- tively recorded somewhere that there might be an end to all possible litigation in the future in respect of the same set of facts; it was not for any purpose of this kind that the reports were compiled. . . . The report was intended for the use and instruction of the legal profession. It was designed to show the general principles of law, pleading and practice. The report was, of course, always a report of a particular case, a case which had been actually heard and tried, but it was a report of a case which 8 Bolland, The Year Books, 8. 94 the reporter had reported solely because it contained or was supposed to contain matter or principles of general use and application. . . . "The report tells us what passed between the Judges and the Serjeants and the parties or their attornies in the actual words spoken in Court, tells us of many things which, because in the end they had no bearing upon the issue ultimately left for de- cision, never found their way into the record. . . To put it shortly, the reports are the living body, acting and speaking and thinking and wrangling and changing its mind on the pressure of the moment; the record is the skeleton, the dry bones of the bare facts."* Mr. Bolland thus describes the manner in which the materials for the reports were gathered: "Serjeants are arguing a case. There may be some half-dozen or more of them engaged in it. They are talking one against another. The Justices are intervening now and again in the debate. Repartees, sarcasms, aptly quoted prov- erbs, verses from the Bible and what not are being bandied about. . . . And somewhere in that Hall, perhaps in the ap- prentice's Crib, perhaps elsewhere, there is a little company of men, how few or how many I will not even attempt now to guess, who in some sort of shorthand of their own are noting down in the living language of the day the speeches and shifting arguments of the Serjeants and the matters of fact they spoke of, hot from the actual present life of the time, the jibes, the retorts, the quips, the criticisms by the Court, the judgments — whatever else that might interest them. And what these men noted and wrote down make what we call to-day the Year Books, or part of them."^ In 148 1 or 1482 some Year Books from the reign of Henry VI were put into print, and from that time until 1680 various printers, including Rastell, Pynson and Totell, published many of them. In 1678-1680 eleven volumes, comprising the standard black-letter edition of the Year Books, were printed; and until the latter part of the nineteenth century no more were published. As to the accuracy of the text of these books, let Mr. Bolland speak: "In the first place I ought to say that I do not suppose that anyone has really read in any- seriously critical fashion the whole of them. No one who is competent to do so has had the time to * Bolland, The Year Books, 28-30. = Id. 3-+. 95 give to such an unprofitable piece of work. 'To read straight through the Year Books in their present condition,' Sir Frederick Pollock wrote many years ago, 'is a task that no man living can be expected to undertake.' Of many of these old printed vol- umes one has only a superficial knowledge; but, on the other hand, many of them, the earlier ones especially, have been read, and read and studied very carefully. And what is the considered judgment passed upon them by those whose full competence to judge them is acknowledged? 'Those who have attempted to read them,' Maitland wrote, 'will know how bad, how incorrigibly bad they are'; and he referred to them again 'as that hopeless mass of corruption that passes as a text of the Year Books.' No one who knows anything much about them will think that Mait- land was in the least degree exaggerating in so speaking of them. The original manuscripts, one knows, are corrupt enough, are full enough of bewildering omissions and blundering perver- sions and distracting mistakes of all kinds; but what these old printers found quite bad and more than bad enough they have left still worse. The men employed by the publishers to tran- scribe the manuscripts for the printers' use were obviously un- equal to their task. Quite possibly the publishers would not pay the wages which really competent men wanted. Anyway the men they did employ were certainly not competent. They could not even read with certainty the original manuscripts. When the original manuscript was correct enough and spoke quite intelli- gible sense they miscopied it, from inability to read it, and turned the report into absolute nonsense. They then did not know how to expand many of the abbreviations used by the original scribes — and a transcriber who cannot correctly expand the abbreviations, of which the manuscripts so largely consist, is sure to make a horrible mess of the work. The men who set up the type, the compositors, were in all probability and seeming not qualified to do this special kind of work; and their bungling added generously to the mass of mistakes in the copy in front of them."« Between 1866 and 1879 the British Records OiBce produced in five volumes the Year Books for 20 to 35 Edward I (1292- 1307) edited by Mr. A. J. Horwood in a most scholarly fashion, and between 1 883 and 191 1 the Years Books for 1 1 to 20 Ed- ward III (1337-1346) in fifteen volumes, the first volume edited by Mr. Horwood and Mr. Luke Owen Pike, the others by Mr. Pike, who even improved upon Horwood's work. The Year Book ' Bolland, The Year Books, 45-46. 96 for 12 Richard II (1289-1290) was published in 191+ by Har- vard University Press under the Ames Foundation. The Selden Society, between 1 903 and 1922, published fifteen volumes of Year Books of the early years of Edward II (1307-1314) ably edited by Maitland, Turner, Harcourt, Bolland, Vinogradoff and Ehrlich. It is still engaged in its plan to publish at least the remaining years of that reign. The result is that there are at present in print the following series of Year Books: The Black Letter Edition (1307-1537) (unsatisfactory). Rolls Series, Horwood (1292-1307). Rolls Series, Horwood and Pike (i 337-1 346). Selden Society (1307-1314). 3. From the Year Books to "The Law Reforts." From the beginning of the sixteenth century there has been no lack of law reports in England, but not all reports have been of equal worth; indeed they vary in merit from excellent to worthless. "Published reports," as Mr. J. C. Fox explains, "re- quire sifting to enable us to form a true estimate of their value. In considering a set of reports as a complete work, some of the following questions are suggested: What were the qualifications of the reporter? Under what circumstances were his reports published? Did he himself take notes of the cases or did he borrow and from whom? Were the reports published during his life-time or edited by others after his death? Were they pre- pared by him with a view to publication? What opinions as to the authority of his reports have been delivered by judges and learned writers? What are the special features of the several editions?"' The considerations to be weighed in valuing a report, and particularly the attention to be paid to critical comment thereon by judges and text writers are more fully discussed by Wallace in the opening chapter of his book, "The Reporters." Wallace records his estimate of the worth of the English re- porters through the reign of George II;* Fox has given his opinion of the merit of the reporters in the House of Lords, the Privy Council and Chancery from the point where Wallace ends to the time when "The Law Reports" begin in 1866,° and Mr. Van Vechten Veeder has set down his judgment of the value of all the reporters from 1292 to 1865.^° A full list of 'J. C. Fox, Handbook of English Law Reports, 1913, 1-2. 'John William Wallace, The Reporters (3d ed., 1855). * See note 7. 10 The English Reports, 1292-1865, 15 Harv. L. Rev. 1, 109. 97 English reporters may be found in Hicks," pages 535-S47j in Cooley, Brief Making and the Use of Law Books, 51-59, and in numerous other places, so that they will not be set down here. Suifice it to say that it seems to be generally agreed that of the earlier common law reports the following are of excellent authority: Dyer, Plowden, Coke, parts I -I I, Croke, Yelverton, Hobart, and Saunders; the following very good: Moore, Willes, Foster and Wilson; the following good: Anderson, Leonard, Davies, Rolle, O. Bridgeman, Sir T. Jones, Lord Raymond, Parker; the following from poor to worthless: Noy, Coke, parts 12, 13, Godbolt, Gouldsborough, Popham, Lane, Ley, Hutton, J. - Bridgeman, Latch, Hetley, Aleyn, Siderfin, Keble, Modern excepting volumes 2, 6 and 12, Comerbach, Salkeld, volume 3, Gilbert, Cases in Law and Equity, Fitzgibbon, W. Kelynge, Sayre. From Burrow on, most of the reports, except Lot, the eighth volume of Taunton, and Anstruther, have been of good repute. Most of the early Chancery reports are poor; not till Peere Williams (1695-1736) is there a clear and accurate re- porter. Cox's reports (1783-1796) are the next worthy of much commendation; thereafter the chancery reports are generally satisfactory, ranging from fair to excellent. 4. "The Law Reforts." Since 1865 "The Law Reports" have been published by the Incorporated Council of Law Reporting, a private institution, not under government control. The reporters are employed and paid by this corporation but are appointed with the approval of the judges; and their reports are not published until after approval or revision by the judges. From i866 to 1875 the reports were issued in three series as follows: 1. Appellate, consisting of English and Irish Appeal Cases before the House of Lords, Scotch and Divorce Appeals before the House of Lords and Privy Council Appeal Cases. 2. Chancery, consisting of Chancery Appeal Cases, including Bankruptcy and Lunacy, and Equity Cases before the Master of the Rolls and before the Vice-Chancellors. 3. Common Law, consisting of Admiralty and Ecclesiastical Cases, Common Pleas Cases, Exchequer Cases, Queen's Bench Cases and Probate and Divorce Cases. With each section were reported Cases on Appeal from the court in question; thus, in Queen's Bench Cases were included cases in the Exchequer Chamber on Appeal from the Court of Queen's Bench. ^^ Hicks, Materials and Methods of Legal Research. 98 These three series with their subdivisions made ten sets of reports. By the acts of 1873 and 1875 the Supreme Court of Judicature was established, consisting of the Court of Appeal and the High Court of Justice with its five subdivisions, namely, Queen's Bench Division, Common Pleas Division, Exchequer Division, Chancery Division, and Probate, Divorce and Admi- ralty Division. The ten sets were reduced in 1875 to six: (l) Appeal Cases, comprising all in the former Appellate Series; (2) Queen's Bench Division; (3) Common Pleas Division; (4) Exchequer Division; (5) Chancery Division, and (6) Probate Division. Each of these last five reported not only the cases of original jurisdiction in the particular division, but also the decisions of the Court of Appeal on appeals from that division. Since 1 880, when the Common Pleas Division and the Ex- chequer Division were merged in the Queen's Bench Division, but four sets of reports have been published, namely, Appeal Cases, Queen's or King's Bench Division, Chancery Division and Probate Division. Before 1865 the English reports are cited by fhe name of the reporter; from 1865 to 1890 they are cited as Law Reports fol- lowed by the number of the volume and the name of the court, usually abbreviated thus L.R. 5 Q.B. or L.R. 5 Q.B.D. The Appeal Cases in the House of Lords and Privy Council, however, are cited merely by volume number followed by Appeal Cases, abbreviated App. Cas. From 1 891 the reports are cited by giving the year of publication, the number of the volume for that year, and the abbreviation of the name of the court, thus: L.R. 1923, 2 K.B. and 1923 App. Cas. English Refrlnts. a. English Reports — Full Reprint. This reprints verbatim all the English reports, except the Year Books, prior to 1865. b. The Revised Reports. This reprints all cases of common law and equity deemed to be of present value from 1785 to 1865. c. English Common Law Reports, an American reprint of cases in King's Bench and Queen's Bench from 181 3 to 1872. d. English Chancery Reports, an American reprint of cases decided 1843 to 1874. e. Moak's English Cases contains in thirty-eight volumes Eng- lish Cases decided between 1872 and 1889, with notes. f. There are several other American reprints of portions of English reports, but they are not of importance. 99 6. Collateral Reforts. a. During the period before 1 865, reports which had the super- vision of the court were called authorized; all others were referred to as collateral. No attempt is made here to mention them. They will be found listed in Hicks, 535-54.7. b. Law Times Reports. The Law Times since 1843 has currently reported cases from all courts. c. The Times Law Reports. These reports since 1885 have pub- lished current cases from all courts. d. Weekly Notes. This is a publication of the Incorporated Council of Law Reporting, which since 1866 has given advance reports of cases later published in "The Law Reports." 7. Reforts of Selected Decision of English Courts. a. Bankruptcy & Company Winding Up Cases, begun in 1 91 5 and succeeding Manson's Bankruptcy and Companies Cases which began in 1894 and ended in 1 91 4. b. Cox's Criminal Law Cases, begun in 1843. c. Cohen's Criminal Appeal Reports, begun in 1908. d. Butterworth's Workmen's Compensation Cases, begun in 191 5 and succeeding Minton-Senhouse's Workmen's Compensa- tion Cases. e. Reports of Cases under the Workmen's Compensation Act, and on Insurance Law. f. There are other collections of reports of special cases, a few still current, but most of them have ceased publication. g. Smith's Leading Cases. Selected from all topics in the law and annotated. The ninth American edition was published in 1889. h. English Ruling Cases. In 26 volumes are collected English cases prior to 1900 deemed by the editors to be leading cases. They are arranged topically and annotated with Eng- lish and American notes. i. British Ruling Cases. This is a current series of annotated cases from 1 900 to date, containing cases which its editors believe to be of general interest and importance from Eng- land, Ireland, Scotland, Canada, Australia and New Zealand. E. Reports of Judicial Decisions of Other Parts of British Empire. I. A list of reforts of the Courts of Ireland, Scotland, and 100 Canada and Canadian Provinces will be found in Hicks, 547-555- 2. Reforts of Australian Courts. a. Commonwealth Law Reports reporting decisions of the High Court of Australia. b. Each of the following states has reports bearing the name of the state, in much the same manner as the states of the United States, namely. New South Wales, Victoria, Queens- land, South Australia, West Australia, Tasmania. 3. Reforts of New Ziealand Courts. a. These decisions are reported in New Zealand Law Reports. BOOKS OF SECONDARY AUTHORITY A. Digests. A digest of a volume of reports or of a set of reports is an elaborate index to that volume or set. I. American Digests, General. Until about the middle of the nineteenth century there were no respectable digests of American case law as a whole. Dane's Abridgment, published in 1 823-1 824, was a hybrid of digest and commentary confined for the most part to the law of the Federal Courts and of Massachusetts. In 1 848 the United States Digest began publication and continued till 1871, digesting decisions from 1847 to 1869. In 1 874-1 876 Abbott's United States Digest of cases from 1790 to 1869 in fourteen volumes was published. This was followed by United States Digest, New Series, brought out annually, till merged in the American Di- gest in 1887. The Complete Digest which began in 1887 was combined with the American in 1 890; and the General Digest which commenced in 1890 continued publication till 1 907. Since that date the American Digest System has been without competition. It now consists of: a. Century Digest, classifying and abstracting decisions of apel- late courts from 1658 to 1896. b. First Decennial, 1 896-1 906. c. Second Decennial, 1 907-1 91 6. d. American Digest, Key Number Series, 191 7 to date. e. American Monthly Digest. lOI It has been said that the entire body of American Case Law is digested in the American Digest System; and certainly it surpasses in thoroughness and accuracy all its predecessors. Considering the fact that in 1921 it contained approximately 4,000,000 digest para- graphs, it is fair to assume that every case decided by a court of last resort in this country is somewhere represented. But as it consists of a collection of headnotes or syllabi of the cases arranged according to a fixed classification, it is obvious that it can be complete and accurate only to the degree of completeness and accuracy which the headnotes or syllabi possess; and it is common knowledge in the legal profession that headnotes vary in completeness and accuracy with the skill and ability and disposition of their authors, whether they be judges, court reporters or members of the publisher's editorial staflF. Consequently while this digest may be an index to all the American cases, it has not only the unavoidable deficiencies of every index, but also the imperfections involved in sometimes accepting ready- made headnotes as statements of the essentials of a decision. 2. American Digests, Special. a. In almost every state there exists a digest of the reports of that state, sometimes called by the name of the state, as the California Digest, sometimes called by the name of the compiler, as Bunnell's Digest (Minnesota). Some of these are made after the plan of the American Digest System; others are encyclopaedic in form. b. Digests of the various parts of the National Reporter System. c. Digests of the various sets of selected cases. 3. English Digests. a. Early Abridgments. (1) Statham's Abridgment, believed to have been first printed about 1 490. It contains abstracts of cases down to the end of Henry VI's reign ( 1 422-1461). Many of them are not to be found in any published Year Book. A modern edition in two volumes with English translation was produced in 191 5 by Margaret C. Klingelsmith. (2) Fitzherbert's Abridgment, published in 15 14, ab- stracting cases to the 2ist year of Henry VII (1496- 1497)- (3) Brooke's Abridgment, published in 1568. It is based largely on Fitzherbert, but abstracts cases down to the year of Brooke's death, 1558. 102 (4) Hughes' Abridgment, published 1660-1662, is a sup- plement to Brooke, abstracting cases from 1558 to 1660. (5) Rolle's Abridgment, published in 1668, edited hy Sir Matthew Hale. The following from Hale's preface will suffice to describe it: "This ensuing book is a col- lection of divers cases, opinions and resolutions of the common law, digested under alphabetical titles and those titles subdivided into heads and paragraphs. . But the principal matter of the book consists of col- lections out of the Year Books, and the latter reports formerly printed out of private reports of other men, and some of the collector's own taking, which were most in the king's bench from about 12 Jacob, regis; there is little in it touching pleas of the crown. It is true, the reader will find many of the cases reported in books lately printed, especially in Mr. Justice Croke's and Sir Francis Moore's Reports." (6) Viner's Abridgment, published 1 742-1 756, in twenty- three volumes. The most ambitious of the abridgments, very carefully edited. (7) Coventry and Hughes' Analytical Digested Index to the Common Law Reports, published in 1827 and digesting cases from 1216 to 1760. Modern Digests. After Coventry and Hughes, there were several digests of Common Law Cases, and Edward Chitty's Index to Cases in Equity and Bankruptcy, but the only modern digests of importance are (i) Mews, Digest of English Case Law. Publication was begun in 1898. It digests cases in law and equity, but omits cases which its editors deem of no present value. The original work is in sixteen volumes. Annual supplements keep it up to date. (2) Butterworths' Ten Year Digest (1898-1907) and Butterworths' Yearly Digest from 1908 to date. (3) English and Empire Digest. Begun in 1 91 9 and in progress of publication. In 1923 thirteen volumes covering A to County Courts had been published. It purports to be "a complete digest of every English case reported from early time to the present day, with additional cases from the courts of Scotland, Ireland, the Empire of India, and the Dominions beyond the 103 (4) Law Reports Digests, published by the incorporated Council of Law Reporting, digesting from 1865 to 191 2 only those cases reported in "The Law Reports" and "Weekly Notes," and thereafter including other English cases and selected cases from Scotland and Ireland: (a) Consolidated Digest (1865-1890). (b) Decennial Digest (1891-1900). (c) Ten Years' Digest (1901-1910). (d) Ten Years' Digest (1911-1920). (e) Annual Digests with quarterly cumulative supple- ments to date. Generally speaking the English digests are not as well done as the American in substance or in form. They do not so thoroughly ana- lyze the cases digested or present so detailed a classification, nor do they furnish such effective mechanical aids to one attempting to make an exhaustive search of the decisions. B. Encyclopaedias. An encyclopaedia of law, or of a particular department of the law, is an alphabetically arranged collection of treatises, each constructed according to a uniform plan and each treating a single topic the limits of which are so prescribed that the treatises will not overlap and that taken together they will cover the entire field of law or of that particular department of the law. Each such treatise ought to be more than an assemblage of "head- notes arranged horizontally."^^ "The true type of encyclopaedic writing demands a text which consists of a statement of the law as it is deduced from all the authorities by which such law has been established, supported by the citation of all such authorities, the true type of encyclopedia is primarily concerned with the underlying principles and hence must consider carefully and show the interrelationship of all cases having to do with the principle or rule of law under investigation." Thus speaks an associate editor of a current encyclopaedia.^* But certainly this is a counsel of perfection, and but seldom exemplified in practice. Some of the articles in encyclopaedias show that their writers had a real understanding of the cases cited; others indicate only a speaking acquaintance with the headnotes. The same article is ^^ See Zechariah Chafee, Jr., in 30 Harv. L. Rev. 300. ^' Kiser, Principles and Practice of Legal Research, 2. 104 frequently reliable in some parts and totally untrustworthy in others. The encyclopaedia is often very helpful in furnishing a general survey of a topic or a portion of a topic, but its chief function is that of the digest. It is a valuable tool in the search for applicable judicial precedents; but no statement in it should be accepted at its face value until verified by the decisions cited to sustain it. American Encyclofaedtas. a. American and English Encyclopaedia of Lawr (ist ed., 1887- 1896), published in 29 volumes and index, covering sub- stantive law and evidence. b. American and English Encyclopaedia of Law (zd ed., 1896- 1905), published in 30 volumes and index, with a five- volume supplement (1905-1908), covering substantive law and evidence. c. Encyclopaedia of Pleading and Practice (1895-1902), pub- lished in 22 volumes and index, with a four-volume supple- ment (1903-1909), treating procedural law in such a manner that in combination with the second edition of American and English Encyclopaedia of Law, the whole field of law was covered. d. Encyclopaedia of Forms and Precedents (1896- 1 904), pub- lished in 18 volumes. e. American and English Encyclopaedia of Law and Practice. Publication was begun in 1 909 but only five volumes cover- ing A-Assignment were produced. f. Cyclopaedia of Law and Procedure. Cyc (1901-1912), pub- lished in 40 volumes. Cumulative Annual Supplements have been issued since 1901. g. Corpus Juris. This is really a new edition of Cyc but on the whole much better done. Publication was begun in 1 91 4; 33 volumes have been produced, and it is announced that it will be completed in 70 volumes. Supplementary vol- umes are issued periodically to keep the citations up to date and to permit necessary additions to the text. h. Standard Encyclopaedia of Procedure (1911-1922), pub- lished in 26 volumes. Periodical supplements are issued. i. Encyclopaedia of Evidence (1902-1909), published in 14 volumes. One-volume supplement in 1 91 9. j. Ruling Case Law (1914-1921), published in 28 volumes, with a four-volume supplement (1921-1923). Its publishers assert it to be "at once a digest of particular reports and a compendium of the entire body of the law as developed 105 by United States Supreme Court Reports, Lawyers' Edition, American Law Reports Annotated, Lawyers' Reports Anno- tated, American Decisions, American Reports, American State Reports, American and English Annotated Cases, American Annotated Cases, English Ruling Cases and Brit- ish Ruling Cases." As a cyclopaedic digest of the reports named, it is valuable and useful in that it makes largely unnecessary the handling of the digests of the separate sets. As "a compendium of the entire body of the law, etc." it is of comparatively small value and is to be used with caution. 2. English Encyclofaedias. a. Encyclopaedia of the Laws of England (ist ed., 1897-1898), published in 12 volumes, with a one-volume supplement 1903. It is a mere cyclopaedic digest. b. Same (2d ed., 1906-1909), published in 15 volumes, with a one-volume supplement in 1 91 3 and a one-volume supple- ment in 1 91 8. c. Halsbury's Laws of England (1907-1917), published in 31 volumes, with periodically revised supplement. The form of this work is similar to that of the American encyclo- paedias. d. Encyclopaedia of Forms and Precedents (i 902-1 909), pub- lished in 17 volumes. C. Text Books or Treatises. Text books and treatises exist in every degree of merit and of usefulness. Some are still, and others in the past have been, con- sidered to be practically authoritative expositions of the law as it was when they were written. For example, Glanvill is com- monly accepted as conclusive, for the original sources from which he formulated his statements are largely unavailable. The same is true of much of Bracton. Britton and Fleta, drawn largely from Bracton, are not so unreservedly accepted. Littleton's Tenures is still highly esteemed, and the writings of Lord Coke, while no longer regarded as the pronouncements of an ultimate authority, are generally greatly respected. Indeed, most of these treatises are usually accorded almost equal respect with judicial precedents. Next in order comes a class of books which have had great influence on the development of the law, like Blackstone's Com- mentaries, Kent's Commentaries, the works of Story, and Cooley's Constitutional Limitations. Contemporary books in the same io6 category are Gray on the Rule against Perpetuities, Wigmore on Evidence and Williston on Contracts. In such treatises the writers attempt not only to make a clear and intelligible statement of the existing state of judicial opinion, but also to examine criti- cally the grounds upon which it rests and to formulate their own reasoned conclusions as to what it ought to be. These books represent the results of a lifetime of scholarly research and real thought, and have more inherent worth than the decisions of the vast majority of our too busy courts. Though, under the doctrine of stare decisis, they have not the authority of judicial precedent, their influence in shaping the law may safely be said to exceed that of the reported decisions of very many of our appellate tribunals. But unfortunately it must be said that the vast majority of text books are not in this class. The better of them do serve a useful purpose similar to that of an article in a standard encyclo- paedia, but many of them are a pure waste of good white paper. At best they merely give the reader a starting point in his search for authorities with a very general survey of the topic in ques- tion; and often they mislead him as to the state of the law and delay him in finding the applicable precedents. The student should get familiar with the names of the better texts and treatises, so as to avoid wasting time and labor on the others. D. Law Dictionaries. There is a long line of English Law Dictionaries beginning in 1538 with Rastell's Expositiones Terminorum Legum Anglo- rum and ending for the present with Byrne's Dictionary of Eng- lish Law in 1923. American dictionaries commence with Bou- vier's Law Dictionary in 1839, ^"'^ ^^ latest first edition is Pope's Legal Definitions, Words defined by the Courts, 1920. It is important to observe that many of these works do not purport to give the usually accepted meanings of words or of phrases, but merely collect definitions which the courts or legislatures have made, and such definitions must be read in the light of the context. They can never be relied upon as determining the gen- eral legal meaning of a word or term. Important modern dic- tionaries are I. American, a. Bouvier, Law Dictionary and Concise Encyclopedia (Rawle's Third Edition), 1914. b. Ballentine, Law Dictionary, 1923 ed. I07 c. Judicial and Statutory Definitions of Words and Phrases, commonly known as "Words and Phrases." (ist series in 8 volumes, 1 905; 2d series in 4 vol- umes, 1 91 4.) 2. English. a. Byrne, Dictionary of English Law. b. Mozley and Whitely, Law Dictionary (1923 ed.). c. Stroud, Judicial Dictionary of Words and Phrases Judi- cially Interpreted (ed. 1903-1909 in four volumes). 3. Australia. Bedwell, Australasian Judicial Dictionary, 1920. 4. Canada. Widdefield, Words and Phrases Judicially Defined, 1 91 4. 5. South Africa. Bell, South African Legal Dictionary, 1910. E. Legal Periodicals. "For ten and twenty years past," says Professor John H. Wig- more, "there have been at the service of the profession more than a dozen legal periodicals, publishing the weightiest critiques of current legal problems."^* And besides this number there have been many more, some of them of doubtful value, and others practically worthless as contributions to legal learning or scholar- ship. In the use of law magazines the same painstalclng discrimina- tion is necesary as in the use of treatises and of articles in legal encyclopaedias. The standing of the publication, the learning and ability of the writer, the authenticity of his data, the inherent reasonableness of his deductions in the light of legal history, existing social conditions and the known truths of all sciences affecting human conduct, all these must be carefully weighed in attempting to place the proper value upon legal periodical litera- ture. A brief history of legal periodicals and a list of them, British and American, will be found in Hicks, Materials and Methods of Legal Research, pages 162-168, 572-609. Among the more important of them now current are I. American {General). a. Harvard Law Review. i*Wigmore, Evidence (2d ed., 1923), 115. io8 b. Yale Law Journal. c. Columbia Law Review. d. Michigan Law Review. e. Minnesota Law Review. f. Illinois Law Review. g. University of Pennsylvania Law Review, h. American Bar Association Journal. 2. American (^S fecial). a. Journal of American Institute of Criminal Law and Criminology. b. American Journal of International Law. c. Medico-Legal Journal. 3. English. a. Law Quarterly Review. b. Juridical Review. c. Solicitors Journal. d. Canadian Bar Review. F. Annotations to Statutes and Selected Cases. In books containing reprints of constitutions, statutes and se- lected judicial decisions, as pointed out above, there are fre- quently included as annotations much material by way of digests of previous cases and commentaries thereon. KEY BOOKS A. Indexes. I . Descriftive Word Index to Decennial Digest. "A compilation of titles under which are references directing the reader to the various topics and sections in the Decennial Digest. These titles are words descriptive of essential facts which have constituted the several elements of the right of action or defense in decided cases. Many of these titles are words that describe, or the names of persons, places, and physical things which have been the subject of dispute. Some of them are words that describe a question of law or fact not directly involving any particular person or thing, but going to particular questions of law and procedure which have been the subjects of dispute, and some of these titles are words that describe a constitutional pro- vision, a legislative act, or a legal doctrine which has been the subject of dispute." Preface, p. IX. 109 2. Index and Concordance of Cyc. An index of subjects and topics contained in "Cyc" arranged alphabetically. 3. Index to Notes in Lawyers' Reports Annotated. a. Original volume covers i to 70 L.R.A. and I to 42 L.R.A. New Series. b. Supplement covers 43 L.R.A. Newr Series to 1 916 F, L.R.A., and 3-5 British Ruling Cases. c. Triennial Index Digest covers 1915-1917 notes and cases. 4. Index to notes in Annotated Cases, from i Ann. Cas. to igj6B. 5. Index to Notes in American Law Reforts, Annotated. 6. Common Sense Index to Negligence and Comfensation Cases, Annotated. 7. List of Im-fortant Notes in American Decisions, American Reports and American State Reports. 8. Jones, Index to Legal Periodicals in four volumes, through 1^22. 9. American Association of Law Libraries, Index to Legal Periodicals, igo8 to date. This index is issued quarterly and cumulated annually. 10. There are also various indexes to statutes, and practically every set of selected cases is furnished with an index or an index-digest. See also helow Shepard's Citations. The above list is not intended to be complete. B. Notes on Reported Cases. 1. Ros^s Notes to United States Reports. Issued in 1901 in tvirelve volumes; revised 1917-1920 in twenty volumes. These are annotations to the decisions of the United States Supreme Court, showing where each decision has been cited by state and federal courts, the point for which cited, and the disposition of that point by the court so citing. 2. Notes to various state reports. a. Notes on Minnesota Reports. These were published in 191 1 and cover volumes i to 1 00 Minnesota Reports. They "trace no out every citation of each Minnesota case by any court of last resort in this country, showing how it has been applied, developed, strengthened, limited, or in any way aiFected by later decisions that have cited it as a precedent."^ — Preface, b. Publications similar to the Notes on Minnesota Decisions are found in several other states, for example, by Joseph W. Thompson in Indiana covering from i Blackford to 182 Indiana Reports, and i to 57 Indiana Appellate Reports, and by Fred P. Caldwell in Kentucky covering I to 177 Ken- tucky Reports. 3. L.R.A. Cases as Authorities. Published in 191 3 in six volumes, show where every case in volumes 1-70 L.R.A. has been cited or referred to in any case reported in the United States; also where every L.R.A. case has been cited in any later annotations of Lawyers' Reports Anno- tated, American State Reports, English Ruling Cases, British Ruling Cases, and United States Supreme Court Reports. They also note the affirmance or reversal of every such case by the United States Supreme Court. 4. Notes to American Decisions. These treat the cases in American Decisions and American State Reports in somewhat the same way as L.R.A. Cases as Authorities treats the cases in L.R.A. 5. The English and Em-pire Digest gives with the digest of each case a reference to all subsequent decisions in which such case is cited. C. Tables of Cases Reported, Cited, Overruled, etc. 1 . Tables of Cases Reported and Cited. a. Almost every volume and set of reports has a table of cases reported and some have tables of cases cited therein. b. The American Digest System and most other digests have each a table of cases digested. c. Most text books have tables of cases cited. 2. Tables of Cases Affirmed, Modified or Overruled. a. In the tables of cases in the American Digest System through the second Decennial, the notation after the particular case indicates the final disposition of that case by the court of last resort. In each yearly volume from 1 91 7 on, there is Ill a separate table of cases affirmed, modified or reversed by decisions digested in that volume. b. The sixth volmne of the Digest of United States Supreme Court Reports, digesting volumes 1-206, has a table showing "all reported cases in state courts or lower Federal courts which have been affirmed or reversed by the Supreme Court of the United States." c. In several of the states such tables of cases have been published from time to time; and several state digests contain them. In some volumes of reports, there are tables of cases modified or reversed, by the decisions therein. D. CiTATORS. 1. Federal Citations. By Ash in four volumes, covering the period from 1789 to 1 90 1. They show where each case decided by the United States District Court, Circuit Court, Circuit Court of Appeals and Court of Claims has been subsequently cited in the United States Supreme Court Reports, Federal Reporter, Federal Cases or state reports, and where cases in the state reports have been cited in the federal reports. 2. ShefartPs Citations. This series in conjunction with the Citator, which it is gradu- ally absorbing, covers the reports of all the courts of the United States, the Reporter System, and the reports of every state except Delaware, Kentucky, Mississippi, Nevada and South Carolina. For each of these states and for the District of Colimibia, a Shepard's citation book is in preparation. Each unit is kept up to date by periodical supplements. The scope of the various units is not uniform. For example, the citation book for Connecticut includes citations of all Connecticut cases in the Connecticut Reports, the Federal Reporter, United States Supreme Court Reports and the Atlantic Reporter and in notes in the various series of selected cases, and citations to the Constitutions of the United States and of Connecticut and to the statutes of Con- necticut; the citation book for Massachusetts has no citations to the Northeastern Reporter but otherwise is as extensive in scope as the Connecticut book. The citation book for the United States Supreme Court furnishes citations to the United States Consti- tution, the Revised Statutes of the United States, the Statutes at Large and the rules of court ; to the official edition of the United States Supreme Court Reports, the Lawyers' edition thereof and 112 the Supreme Court Reporter; and to decisions of the Court of Claims, and of the various executive departments including the Opinions of the Attorney General. It has also a classified topical index of the case lavy since 191 5 arranged according to the classi- fication of the American Digest System, Key Number Series. Citer Digest. The revised edition of this work was published in igi6 and is kept up to date by cumulative supplements issued in January, May and September. It "shows the history and construction of each act of Congress down to date," giving reference to the Revised Statutes, Statutes at Large, Compiled Statutes and Fed- eral Statutes Annotated, and citing all cases where they have been dealt with by the courts. HOW TO USE LAW BOOKS Introductory. When a lawyer or student is confronted with the problem of determining what is the law applicable to a given state of facts, his task is really to predict what the courts will declare to be the legal relations which those facts establish between the parties involved. In the above-described repositories of the law, he will find most of the materials upon which to base his prediction. If valid legislative enactments are applicable, they will normally control. Consequently, in the United States he must first ascertain whether there is any pertinent provision in ( i ) the Constitution of the United States, (2) any act of Congress or treaty, (3) the Constitution of the state, or (4) any enactment of the state legislature or any sub- ordinate legislative body. In England, he will not be troubled with constitutional provisions but must look to the enactments of Parlia- ment and subordinate bodies. If any such applicable provision is found, he must inquire how, if at all, it has been interpreted by the courts. If there is no constitutional or statutory provision in point, then he must seek out judicial precedents upon the same or analogous facts. In this process, he must at the outset carefully analyze the problem so as to have clearly in view the exact question which it presents. United States Constitution. Every lawyer and law student should be or become reasonably familiar with the Constitution of the United States, and this will enable him to tell at least whether a constitu- tional question is likely to be involved in his problem. If he has any "3 doubt about it, a search of the Constitution is imperative. Fairly adequate indexes are available, but the document itself is so brief that even without an index, the applicable section, if any, may usually be found without undue labor. If found, its interpretation by the courts may ordinarily be ascertained by the use of the Citer-Digest, Shepard's United States Citations, Volumes lo and 1 1 of United States Compiled Statutes and Supplements, Volumes lo and 1 1 of Federal Statutes Annotated and Supplements.^' These will give references not only to all amendments, but also to all judicial de- cisions wherein it has been authoritatively interpreted, applied or even barely cited, up to the time of the publication of the respective works. But an exhaustive search will not end here. It will include all the steps indicated below in describing the search for judicial precedents and lesser authorities. And in taking such steps the searcher will sometimes be rewarded by finding a constitutional provision having a bearing upon his question, which a reading of the document itself did not suggest. State Constitution. The lawyer and student should likewise know the Constitution of his own state, and should conduct his quest for an applicable provision in the manner above suggested for dealing with the Federal Constitution. If such a section is found, he may receive help from a local annotated edition which will usually refer him to the decisions of the appellate courts of the state and of the United States Supreme Court. Shepard's Citation Book for the State will perform the same service; but rarely, if ever, will he find such elaborate annotations of a state constitution as those above mentioned for the Federal Constitution. It is, therefore, essential that he con- tinue the search for judicial precedents. Treaties. The problems involving treaty provisions are compara- tively few. No unusual helps are available to the searcher. The col- lections of Malloy and Garfield, the Numbered Series, and the United States Statutes at Large must be consulted. But much, if not most, reliance must be placed upon a search for judicial precedents. Acts of Congress. Whenever a problem lies in the field open to Congressional legislation, it cannot safely be assumed that Congress has not acted. The body of Congressional legislation is so large that the searcher cannot hope to examine all the text; he is forced to have ^^ In the paragraphs below dealing with judicial precedents, the method of using such books is explained in detail. Much of the information there given as to the process of investigation is applicable also to statutory law. 114 recourse to an index. Indexes generally vary in quality from very bad to fairly satisfactory. Their accuracy and completeness depend largely upon the education, diligence, imagination and general in- tellectual ability of their makers. A lawyer might reasonably expect to find a decision dealing with the constitutionality of a statute regu- lating the sale of oleomargarine indexed under constitutional law, but an indexer might, as indeed one official indexer did, omit it under that heading and put it only under oleomargarine. The searcher must, therefore, try to put himself in the place of the indexer and conjure up every word and phrase which the subject matter might suggest. Among other things he should look for words and phrases descriptive of the physical thing involved, of the status, condition, occupation, or relationship of the parties; of the right, privilege, power, immunity or disability in question; of other legal concepts, doctrines or mandates suggested by the problem; of the wrong or injury alleged; of the pertinent grounds of defense and of the ap- propriate or desired relief. If he finds a pertinent enactment, then he may proceed, as above suggested in case of a constitutional pro- vision, with the United States Compiled Statutes, Federal Statutes, Annotated, and Shepard's Citation Book, and complete the investi- gation as outlined below by a search for judicial precedents and lesser authorities. State Legislation. It would be almost safe to say that the investi- gation of every legal problem should begin with a search for perti- nent state legislation, for no one can, by a friori reasoning, form a reliable opinion as to whether a legislature has enacted a regulation upon any given subject. Here too the body of statute law is so great that reliance upon an index is imperative. The process is similar to that used in seeking an applicable Congressional act. Compilations, consolidations, revisions and codes, where available, as well as ses- sion laws must all be scrutinized. If a relevant statute is discovered, its legislative and judicial history may be indicated in an annotated edition of the statutes; and Shepard's Citation Book for the state will usually give references to amendments and repeals and to the judicial decisions which in any way refer to the statute. But because of the inadequacy of most indexes, the investigation should be carried through by a search for judicial precedents and lesser authorities. Enactments of Subordinate Bodies. The field for such enactments is comparatively narrow. Ordinances and resolutions of legislative bodies of municipalities {e.g. boards of aldermen or city councils). "5 and regulations of boards of health are examples. The process of search is similar to that for state legislation. But very infrequently will any annotated edition of such local legislation be available. Re- liance must be placed upon an investigation for judicial precedents and lesser authorities. Judicial Precedents and Lesser Authorities. It will be assumed that a systematic and exhaustive investigation of the authorities is desired and that it is to be made by a beginner. Even such an in- quirer will be able to analyze his problem sufficiently to tell whether it lies in the field of contracts, crimes or torts and to determine in what general text books it will be treated. It is believed that the books can be most profitably consulted in the following order: (i) text books or treatises, (2) encyclopaedias, (3) digests, (4) series of selected cases, (5) citation books, (6) periodicals, (7) tables of cases. Same — Text Books. After the problem has been analyzed as ac- curately as possible, an "index list" of apposite words and phrases should be made, under which it is thought an indexer might possibly classify materials dealing with the question, as suggested above under "Acts of Congress." From the treatises upon the appropriate subject there should be selected, if possible, the latest edition of several standard texts. It may be difficult to secure any reliable evaluation of a text book, but ordinarily an inquiry of a law librarian, a prac- titioner or a law teacher will procure sufficiently accurate informa- tion. In the use of a treatise the first step is an examination of the table of contents to ascertain the manner in which the author di- vides and subdivides his subject, with a view to finding in what sub- division he treats the question under investigation. Next, the index should be scrutinized for the selected words and phrases. If the book treats the question at all, the appropriate passages in the text should be thus revealed. The investigator should (i) accurately note the subdivisions or titles under which the pertinent points are discussed and add to his list of index words and phrases any new classificatory words or phrases, for use in his further search; (2) note upon a separate card or slip of paper (hereinafter called the case card) the name and citation of each case relied upon by the author, with a brief memorandum of the point for which it was cited and the exact place in the work where it is cited; (3) record in a separate memo- randum book the opinion of the author. This book should be kept for the opinions of text-writers, commentators and editors upon the Ii6 question. The cards or slips should be arranged in alphabetical order for comparison with citations later found to prevent duplication. Same — Encyclopaedias. As it is usually unprofitable to examine the older encyclopaedias where current ones of equal merit are avail- able, the present suggestions are directed only to the use of "Corpus Juris-Cyc." The publishers of these works issue a law chart which shows their scheme of classification. The field of the law is divided into seven grand divisions, namely, Persons, Property, Contracts, Torts, Crimes, Remedy and Government. Each grand division has a number of subheads, and under each subhead are many topics. Each topic is the title of an article of treatise in Corpus Juris or the Cyclopedia of Law and Procedure. At the head of each such treatise is a detailed analysis of its contents, and a table of cross-references to other articles treating related subjects. The "Index and Concord- ance of Cyc" serves as an index to the Cyclopedia of Law and Pro- cedure, and once a reference to that work is found, it is readily translated into the proper reference to Corpus Juris by the parallel reference tables in each volume of Corpus Juris. The analysis originally made, of itself or at any rate with the in- formation gleaned from the text books, should enable the searcher to decide within which grand division his problem falls; at the very least it will enable him to eliminate the most of them. The subheads in the division or divisions thus selected must then be examined to ascertain under which the question in hand is most likely to be treated. This determined, the topics under the chosen subheads must be searched to find those most apt to contain pertinent matter. Next the volumes of Corpus Juris or Cyc containing these topics must be consulted, and the analysis and table of cross-references at the head of each treatise or article scrutinized. By this process all relevant matter will usually be found. If not, and as an additional safeguard in any event, the Index and Concordance of Cyc should be carefully scanned for the words and phrases in the investigator's index list. Any material referred to under such words and phrases, as well as that previously found, should be attentively read and analyzed. These volumes of Corpus Juris or Cyc will refer, of course, only to those cases which had been reported up to the date of the com- pilation of the text for the press. To find the later cases recourse to the Annotations to Cyc or to Corpus Juris-Cyc is necessary. At the top of each page of these bopks is printed the number of the volume of Cyc or Corpus Juris thereon annotated, and at the left of each 117 paragraph the number of the page of that volume followed by the number of the note. New matter is inserted wherever necessary and is indicated by giving a fractional number to the note and preceding the text by the word "new." The later cases are cited under their appropriate note numbers. Case cards, memoranda of authors' opin- ions, and classification memoranda should be made, as in dealing with text books. If a case is found for which the searcher already has a case card, he should note the new citation on the case card. It is advisable also to take the name of the writer of the article; it may aid in evaluating the opinion. In this connection a word of caution is needed. The publishers of Corpus Juris, in stressing the value of quotations from opinions in the notes, say that they afford "material for the making of briefs in such form that it may be used without necessity of access to the report of the particular case." Such a practice should never be in- dulged. Nothing could be more unscholarly or more unlawyerlike. The value of such a quotation can never be estimated without a painstaking examination of the original report. The foregoing method of using Corpus Juris-Cyc may be adapted to the use of any encyclopaedia by substituting for the "law chart" the publisher's scheme of classification, and for the "Index and Con- cordance of Cyc," the index, which is usually provided, as in volumes 31 and 32 of American and English Encyclopaedia of Law, ad ed., or volume 28 of Rilling Case Law. Same — American Digest System,. The classification scheme of the American Digest System is almost identical with that of Corpus Juris. It has seven categories corresponding exactly with the seven grand divisions of Corpus Juris. The seven categories are divided into thirty-four divisions, which are subdivided into four hundred thirteen titles. Each title represents a separate topic in the digest under which the pertinent digest paragraphs are arranged in divi- sions, subdivisions, sections and subsidiary sections, each introduced by a descriptive line. Preceding these paragraphs are, first, a scope note, defining the limits of the topic as treated; second, an analysis of the subject matter; and third, a list of cross-references. By fol- lowing the scheme above outlined for the use of Corpus Juris, the searcher may find the digest paragraphs bearing upon his question. And with the information he has amassed from the text books and encyclopaedias, he should be able to get satisfactory results by this process without undue expenditure of time. However, on account II& of the plan which the publishers have devised for their digesters in order to secure as great uniformity of classification as possible, and on account of the mechanical aids w^hich they have provided for the users of the digest, another method of search is ordinarily employed. The Descriptive Word Index is made up of words and phrases, alphabetically arranged, which constitute or denote or describe each of the 413 topic titles and each descriptive line of divisions, subdivi- sions, sections and subsidiary sections of the digest; legal mandates, concepts and doctrines whether judge made or drawn from constitu- tions or legislative acts; persons, natural and artificial, and their class, condition, occupation and relationship; places and things with- out which the disputes which have been litigated would not have occurred; wrongs and injuries for which relief has been sought in litigation; the different grounds of defense in every action; the various kinds of relief sought or given; every step and the manner of taking it in any action or suit from its commencement in a court of original jurisdiction to its termination in a court of last resort; every step in procuring or attempting to procure the enforcement of any order or judgment of a court. After each such word or phrase reference is made to the paragraph or paragraphs in the First De- cennial Digest where decisions dealing with pertinent material are to be found digested. The topic titles and the paragraph numbers (called key numbers) under each of them in the First Decennial are identical with those of all subsequent parts of the system, so that this reference is really to all parts of the American Digest except the Century Edition. And the portion of the Century digesting cases dealing with the same point is ascertained by merely consulting the descriptive line at the head of the section under which the particular paragraph number is found in the Decennial. This contains a refer- ence to the appropriate volume and paragraph of the Century. In classifying the digest paragraphs the digester is expected to do what the publishers think the searcher should do. He should analyze the case as to ( I ) the parties — their class, condition, occupation and relationship, ( 2 ) the place or thing without which the dispute would not have arisen, (3) the wrongful act or injury or the right in- fringed, (4) the relief asked, (5) the steps in the action as to which some question is raised. This analysis will disclose the descriptive words for each point treated; these words will point to the topic and section line where the paragraph should be put. Accordingly the searcher should make an analysis on this plan. If he has made up 119 his "index list" as suggested above, he will have all the descriptive words which this analysis will afford and some others. These excess words he should by no means discard, for given exactly the same scheme of analysis and classification, any two persons are likely to reach different results in a large percentage of cases. He should therefore scarl the descriptive word index for every word and phrase on his list and make note of every pertinent reference discovered. When his list of such references is complete, he should consult the two Decennials and the Century and read the appropriate sections. To avoid the necessity of handling each of the volumes after the second Decennial, he should examine the Cumulative Table of Key^ number Sections, which will disclose the volumes that contain para- graphs under the key numbers on his list of references. The desig- nated sections in these volumes he should read. Finally he should look into the monthly advance sheets of the digest and read all para- graphs therein under the same key numbers. Whenever in this proc- ess he finds a paragraph having a bearing on his problem, he should make a case card, unless he already has one for the case thus digested, in which event he should note the digest reference on the old case card. It will be remembered that these digest paragraphs are merely paragraphs of the headnotes or syllabi of the cases. They should never be relied upon without an examination of the original case. Same — State Digests. Where the problem is to be solved accord- ing to the law of a particular state, the digest for that state, if any, should, of course, be scrutinized. If it is built on the plan of the American Digest System, the scheme above outlined may be em- ployed. If arranged as an encyclopaedia the plan suggested for "Corpus Juris-Cyc" should be used with such modifications as may be necessary. If neither, then all the means above suggested should be combined to locate the pertinent material. If time permits or if authorities in point cannot be otherwise discovered, it may be advis- able, if not necessary, to search all available state digests, for often they will reveal relevant cases that a particular searcher can find by no other means. As explained above, the American Digest Sys- tem is a compilation of headnotes or syllabi; and very often the writer of an encyclopaedic article has no more intimate acquaintance with portions of the case law than that gained by perusing head- notes. A particular digester of state decisions may have pursued the plan of carefully reading all the opinions in every case and making 120 a digest paragraph or statement as to each point discussed. In such event, his digest will be a mine of otherwise unavailable informa- tion. Same — English Digests. The only practicable method of using these digests is by an adaptation or modification of the first plan sug- gested for the American Digest System. This requires an acquaint- ance with the scheme of classification, and an examination of the various divisions, subdivisions, etc., to determine where the question in hand is probably treated. Same — Series of Selected Cases. Ruling Case Law is an ency- clopaedic digest of cases and annotations to January I, 1923, in American Decisions, American Reports, American State Reports, American and English Annotated Cases, American Annotated Cases, English Ruling Cases, Lawyers' Reports Annotated, United States Supreme Court Reports, Lawyers' Edition, British Ruling Cases and American Law Reports Annotated. By familiarizing him- self with the classification scheme of the publishers and employing his index list of words and phrases, the searcher should have no difficulty in applying to this digest the plan above described for the use of encyclopaedias. This will give him references to the cases which are reported or cited in annotations in all the volumes of each of the above-named series except the last three, and to all the volumes in those three published prior to January i, 1923. He should make a list of these references and then examine the appropriate volumes. On this examination he should make a case card for each new case in point, should note appropriate citations on his old case cards, and should record in his memorandum book the opinion of the editor, if any, upon the problem. Each of the above series has a separate digest or index digest. These digests are not usually as well devised or as intelligently ex- ecuted as the American Digest System. They are built on the de- scriptive word plan and sometimes assume to themselves such at- tractive though meaningless soubriquets as "Common Sense Index" or "Common Sense Digest." In using them the searcher should rely principally upon his index list. They should be examined in addition to Ruling Case Law. For series not covered by that work, as well as for cases and annotations in United States Supreme Court Reports, Lawyers' Edition, in American Law Reports and in British Ruling Cases since January I, 1923, these separate indexes or digests must be consulted. In using tlie digest for American Law Reports Anno- 121 tated, the searcher should not neglect the cumulative table of sup- plemental decisions in the back of the annual digests, which keep the annotations up to date. In addition to the digest, some of the series have separate Indexes to notes, such as the L.R.A. Desk Book. Usually all the informa- tion contained in these indexes to notes is to be found in the digest, but it is well to examine such indexes; and on occasion some time may be saved by so doing. Same — Citation Books. If the searcher has followed directions, he will at this point have a case card for every case bearing upon his problem found in text books, encyclopaedias, digests and series of selected cases. If any of these cases are in the United States Supreme Court Reports, he should now turn to the appropriate volume of Rose's Notes, and find therein all subsequent judicial opinions wherein those portions of such cases dealing with his problem have been dealt with. For each new opinion thus discovered he should make a case card. If there is available any other set of notes similar to Rose's Notes for any other cases on his cards, he should proceed in like manner with them. Next, he should take advantage of the citation books — Ash's Fed- eral Citations and Shepard's Citation Books. Because most reported cases deal with more than one point, it might cause the searcher un- due labor to proceed with these citation books from his cards only. Consequently, it may be advisable for him now to consult the origi- nal report for each case card, and note upon such card the paragraph of the syllabus or headnote bearing upon his problem. Then he may for each card turn to the appropriate citation book and secure a reference to all subsequent cases wherein either the pertinent para- graph of the syllabus is treated or the case in general is cited. For each such citation he should make a separate case card. SaTtie — Periodicals. The searcher's next task is to discover the periodical literature upon his problem. His handling of text books, encyclopaedias, digests and annotations should have familiarized him with the phraseology used by judges and writers in discussing the question, and his previous analysis and his index list now should give him a key to the indexes of the separate periodicals and to Jones' Index and the Index of the Association of Law Libraries. By search- ing therein for characteristic titles and descriptive words and phrases, he should find references to most, if not to all, periodical discussions of value. He should list all titles which indicate that the articles 122 referred to might be helpful, and then examine the articles. All relevant material thus found should be handled like text book ma- terial. Same — Tables of Cases. The use of the various tables of cases at this point would be unprofitable. The searcher should novf read with attention and discrimination every case for which he has a case card; if any such case has in it matter of value, he should make an accurate abstract of it, being vigilant to distinguish between decision and dictum, remembering that a dictum, while not as weighty as a decision, may be of considerable value. If any such case cites or discusses a pertinent case for which he has no case card, he should make such a card for it, and proceed as if it had been found in his search of a digest or text book. By this process he will eliminate all cases of no worth. The case cards for the remaining cases he should then examine to ascertain whether each case has been found in the various text books, digests, selected case series, and other works which he has previously examined and for which a table of cases is available. If any such case was not found in any such work, the table of cases for that work should be scrutinized. This process may result in giving the searcher references to other cases in point or to further discussion or comment of value. 'Other Methods of Search. It is thought that the foregoing order of search is best suited for the beginner; and that it will give at least as good results as any other for the experienced practitioner who de- sires to exhaust the authorities. If one is content to believe the ad- vertisements of every law book publisher, the search of a single en- cyclopaedia, or of a digest, or the discovery of a note in a series of selected cases will reveal all the law — at least all the law worth considering. Credulity may be a great labor-saver; but if the legal authorities are to be exhausted, all the foregoing steps must be taken. It is possible to take them in a different order. One may begin with a series of selected cases; one may have a case in point and work back through the various tables of cases; one may commence with the American Digest System ; or with a case that has a key number syl- labus paragraph, and thus get a start in the Decennial Digest. Fur- thermore, the thoroughness of the search to be made in any instance may largely depend upon the books available and the object to be attained. But whatever the extent of such search, it should be made systematically so as to avoid waste motion and unnecessary duplica- tion of work. 123 Evaluating the Authorities. Besides making an accurate abstract of each case in point and a correct summary of the view of each text writer, commentator and editor, the student or lawyer, in the process of reaching his prediction as to how the courts will solve the problem in hand, must attempt to place proper values upon each such case and view.^° This involves a consideration of the following questions with reference to each judicial decision. As to the court, is it a trial court, an intermediate appellate court or a court of last resort? Is it a court of some obscure jurisdiction where litigation is of an unimportant character and the bench and bar poorly educated; or is the court so overcrowded with work that it habitually or fre- quently renders opinions without thorough and scholarly investiga- tion, or is it a court of high reputation? Is the judge who rendered the opinion of recognized learning and ability, or is he "famously ignorant"? As to the report, is it official and accurate; is it the only report of the case or are there several reports; if there are several, do they disagree as to the pertinent point; what is the reputation of the reporter for accuracy; is the report full and detailed, or a mere memorandum or note? Was the case thoroughly argued by able counsel on both sides, or was there an appearance for one side only, or was it submitted without adequate argument? As to the opinion, is it, upon the problem in hand, decision or dictum; is it well reasoned and fortified by the authority of prior judicial decisions; does it consider prior pertinent cases within and without the juris- diction, or does it rely upon generalities from an encyclopaedia, or upon imscholarly text writers; does it fail to notice a point which might have been material; is it by a unanimous or by a divided court; if there is more than one opinion, do they agree in reasoning as well as in result? As to its non-judicial setting, may the decision be attributed to peculiar political, economic or social conditions temporarily existing in the jurisdiction at the time of its rendition, or may it have been influenced by the particularly distressing or appealing or otherwise peculiar facts of the case? As to its judicial history, was it a case of first impression; has it been modified or overruled or doubted or affirmed by later cases; has it been ignored or frequently cited ; is it in accord with the trend of modern decision in the same and other jurisdictions? As to its present applicability, have newly discovered truths made the decision inapplicable or impaired the foundation upon which it rests; have changed and ■^' See Wambaugh, The Study of Cases, 42-46. 124 changing notions of what sound social policy demands made the result of applying it shocking or undesirable or of doubtful utility? In evaluating the opinions of editors and commentators, the edu- cation, experience, political, economic and social background, and the professional standing of the writer must be weighed. Investiga- tion must be made to determine whether the work shows scholarly research and intelligent interpretation of the authorities; whether the views expressed are the result of fair and impartial examination of judicial decisions and other pertinent authorities, or are merely preconceived theories which the authorities have been tortured to support; and whether they accord with what modern decisions show to be the prevailing ideas of the courts as to sound social policy. After having thus collected and evaluated the authorities, the searcher will be in as favorable a position as possible to make an intelligent pre- diction as to what solution the courts will make of his problem.