liir (EnrttpU iCaui i>rl)nnl ICtbrarg iiflatrsliaU iEquttij (Eollettton (gift of E- 31. iMacsljaU, IC-iC. 1. 1394 CORNELL UNIVERSITY LIBRARY 3 1924 084 263 189 Cornell University Library The original of tinis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084263189 EQUITY ITS PEINCIPLES IN PROCEDURE, CODES AND PRACTICE ACTS THE PRESCEIPTIYE CONSTITUTION Herefrom Codes Reaffirm Organic Principles. These Enumerated and Discussed. An Explication from Fundamental Maxims, Illustrated by Leading Cases from the English, Federal and Best State Decisions. The Code a System Reaffirming Principles of the Pre- scriptive Constitution, Regulated for Simpli- fication, Unification and Expedition. LIMITATIONS OF LEGISLATIVE POWEE BY ^Slft#s. WILLIAM T. HUGHES Author of "Contract," "Procedure" and "Grounds and Eudiments of Law" Melius est petere f antes quam sectari rivulos. Begula pro lege si deficit lex. "The Boman still holds dominion over this world by the silent empire of his law. ' ' PUBLISHED FOK THE AUTHOK BY CENTRAL LAW JOURNAL CO. ST. LOUIS, MO. 1911 u^u COPYRIGHT, 1911, BY EDWARD D'ARCY. All Rights Reserved. PREFACE "Remove not the ancient landmarks which thy fathers have set." This work is offered to demonstrate that the restoration of the Civil Law of Rome has come to the Western Hemisphere, and is now prevailing in American States. That the equity of the renaissance was but a nest egg, and that its good name has constantly conjured and finally attracted to it the cosmopolitan, immutable maxims, despite the guidance of Coke and Black- stone, neither of whom understood them, but who were permitted to define equity and to hobble it with provincial and fragmentary maxims restricting its jurisdiction.^ But feudal authors and their followers have npt succeeded in restraining it, for, like a mighty deluge, it has come at last and has broken down the barriers of tribes and provinces, sweeping them away there and eroding them here until today the last vestiges of obstruction set up by the reverence of tribal lawyers for "our written con- stitution," "our statute," "our code," "our practice act," "our decisions," are disappearing. The provincial lawyer has always been prejudiced against cosmopolitan law. The experi- ence of Saint Paul justifies this conclusion. Now, the demands of a great nation are calling for lawyers who can guide its destinies in the greatest theatre of all ages. There but remains the removal of the wreckage. The fruit- age of the reformation, the contests of Coke and Bacon, the English revolutions, Mansfield's decisions, the Anglo-American wars, our experiences with negro slavery, the introduction of the Codes, and our experiments with the "Case System" are all behind us. After all these experiences, those acknowledged leaders who assure us that they are foremost in advancing the cause of jurisprudence inform us that our books are wrong, that our schools are wrong, that our decisions are a "legal jungle," that the condition is "deplorable," "appalling," "foreboding," and that the "future is calling" to those who can see and act.^ 1. story's Eq., § 59; § 31, post. 2. Corpus Juris, Green Bag, February, 1910. See articles of Edward D 'Arcy, 70 Central Law Journal, 294-296, 311-313, 402-407, 455-460; 34 Am. Bar Assn. Eeport, 1909, pp. 787, 832, 836 ("England has the best bench, the best bar and the best law books. ' ' — James Barr Ames) . iii iv PEEFACE Their letters in the Green Bag should be carefully read" by everj^ student. Many of them are written by the most prominent authors, teachers, lawyers and jurists, some of whom have beea famed orators for more than a generation; some of them also spoke at the Universal Congress of Lawyers and Jurists (1904, St. Louis) ; what they said there, when contrasted with their letters above referred to, will show a great change of mind. Of these, appropriate mention will be made on many pages,, attended with ample demonstration. "What was a wonderful development and priceless boon ia 1904 is graphically described as a "legal jungle" in 1910. The letters of these lawyers show that, like Justinian, Bacon and Napoleon, they have come to perceive the due administration of the laws as necessary bulwarks for the perpetuity of empires. In other words, that a knowledge of fundamental law is indis- pensable for good government; that the chaotic condition throughout American jurisdictions is a menace to a more perfect union of the states, business interests, and to the attainment of justice, of public tranquillity, and of the blessings of Providence. The noblest profession is shown to be a laggard submerged with empiricism and inundated with vast unwieldy outputs of cupidi- ous commercialism whose hands are ignorant and incompetent. The dean of one great school is able to name but one topic that was acceptably exploited; another dean has written upon that topic, and he informs us upon the fly leaf (Wigmore's Code on Evidence, 1910), that the law must be restated. In this, his seventh volume upon that topic, is indicated that more must be expected. It is because of such a condition that famous teachers are at last instructing us that our two hundred years' growth of American law is like the house founded upon the sand, when the rains descended and the floods came and the winds blew. That the condition is " appalling, "» "foreboding," "deplor- able" and "bewildering," is stated in general terms, in con- clusions of fact, if you please. These general statements leave the student in the dark as to how and why he is in the "jungle." Therefore, it seems well to illustrate, and to do so let us take a question of leading importance, namely: How is a statute con- 3. 34 Am. Bar Assn. (A. D. 1909), p. 787; 832-838 id. (Address of Franklin M Danaher of Albany, N. Y.). PKErACE V strued in reference to the common law? Eelating to this, from the title "Common Law," as an index topic head, in Sedgwick, Dwarris, Sutherland and Endlich on Statutes, one is led to the old rule, which reads as follows : '^Statutes i)i derogation of the common laiv are strictly construed." To support this rule is Reydon's case, from Coke's reports, which is widely cited and is reprinted in Vol. 14, English Euling Cases, 816. Herein the rule is emphasized and is made most impressive. It is well cited and stated in Endlich on Statutes; it is not so clearly stated in Sutherland nor in Dwarris ; Sedg- wick omits it, but instead, he gives to the rule pages 267 to 280, wherein the rule is both upheld and denounced in alternating paragraphs; it is denied by the New York Code, we are told;* the old law is likewise dealt with; also the maxims; these are both denounced and upheld, just as you want them. The author appears like a revolving electric fan throughout these pages.^ Herefrom the student can judge of difficulties which have gath- ered and cast cloud and bewilderment over the way. Is it mat- ter of wonder that, with text books like this, the profession has gone astray ? "We read that "maxims belong to another age," p. 274; that "Codes of procedure shall be liberally construed and in dero- gation of the Common Law," p. 274. Yet we are also told: "The wisdom of judges and sages of the law has always suppressed new and subtle inventions in derogation of the Common Law." I Coke Inst. 282. Cooley's Constitutional Limitations, Dillon's Municipal Cor- porations, the great cyclopedia-digests, will greatly add to the illustrations and can be cited pro and con. Such discussions settle nothing, except that the law as writteh and taught exceeds human capacity^ The condition in Illinois, Missouri and other "theory of the case" states chiefly arises from statutes and their construction. And the pages in Sedgwick's Constitution above referred to will show how they are construed. Now let each look for himself 4. See Clark v. Dillon, 97 N. T. 370; Mallinckrodt, L. C. 12a, 3 Gr. & Eud; An- drews V. Lynch, 27 Mo. 167; § 283 post. 5. Preface vol. 3 Gr. & Eud. vi PEEFACE and then come to a conclusion, as did the dean of Harvard College.^ The author believes that the dominating principles can now be picked from the overtoppling bulk of legal literature, and so arranged and set that they can be found and mastered. The dean of a great school now informs us that the English bench, bar and law books are the best. Among these none are better than Broom's Maxims, Smith's, and White & Tudor's Leading Equity Cases. The volume now presented shall faithfully reflect the best English works and cases. The following questions have long been mooted among American lawyers : 1. What is ' ' due process of law ' ' ? 2. What are the distinctions between the mandatory and the statutory records? 3. Are the general demurrer and its correlatives — namely, the motion in arrest, non obstante veredicto, the order of repleader, the objections upon collateral attack, the tests of res ad judicata, and "due process of law" — governed by the same and invariable rules of con- struction? 4. Are pleadings indispensable to confer jurisdiction, where pleadings are required? 5. Can jurisdiction in a constitutionalism be made to appear from these two facts only, (1) jurisdiction of the person, and (2) a judgment in sufficient form which the court ' could or might make if duly authorized by its record? 6. What is the "theory of the case"? 7. Can adjective law and substantive law be comprehensively defined and classified? Why is not the substance re- quired by the state for the coram judice proceeding- substantive law also the higher law? 8. Is procedure merely a. local and provincial subject? 9. Can the law be well written and taught in individualized branches ? 10. Is there a prescriptive constitution? 11. Have the principles of the old organic law been changed? 6. 34 Am. Bar Assn. 836 (A. D. 1910) ; see also Prefaces 1 Gr. & Rud., also 3 Id. PEEFACE vii 12. Can these principles be named, enamerated and taught by; this generation? 13. What are these principles ? 14. Where are they found comprehensively explicated? 15. What is the case system? 16. What is the best elementary work for both student and practitioner ? These questions will be in mind throughout the discussions in this work, and it will be sought to lay before the annual five thou- sand beginners the data from which the right answer to them can be made. The information afforded on pages 787, 832-838, 34 American Bar Association Beport (A. D. 1909) greatly inspires this effort. We are there told that the English Bench, Bar and books are the best ; also that the English lawyer learns in a law office; and thus it appears that the English lawyer learns his law from books that lawyers appreciate and use.*** The best of the English books will be introduced and often cited in this work. In connection with the mandatory (or constitutional record) and the statutory record discussions, we shall seek to disclose respective philosophies relating to each of these records. In- deed, we have burdened the argument with this attempt. For this purpose we have gathered and present what we call the trilogy of procedure or of strict construction, also the trilogy of liberal construction. The former applies to the mandatory record; the latter to the statutory record. Impressing these simple facts will greatly aid in the solution of most of the above questions. The philosophies referred to when clearly understood and properly applied are a key and a guide. Such is their impor- tance that if properly taught they will uplift the legal profes- sion from the ruts of a blind and stupid conservatism. For this end the fact will be disclosed and it will be made prominent that these philosophies referred to arise from the principles of the prescriptive constitution, and must he comprehended therefrom. The philosophy of law is inseparable from its utility. For its application it must be reckoned and viewed from fixed moor- ings or datum posts. The viewpoints we now offer are from 6a. See Preface Vol. 1, Gr. & Rud. viii PREFACE the two records described in the introductory chapters, and their respective trilogies, in the light of the conserving principles of procedure^ As a ship has its keel, and ribs springing therefrom, to sup- port the superstructure, so has the law its keel, ribs and super- structure. The mandatory record is the keel; its trilogy and the conserving principles of procedure are the ribs. Upon these may be reared variant types of marine architecture, but what- ever be the variety and type of the superstructure, the keel and the supports must always be in substance the same, regardless of the shape and design of the superstructure. The argument proceeds upon the theory that the design of the keel and of the ribs of the law are from antiquity, and that as of old, the base line must be viewed, and that all estimates and reckonings must be made therefrom. In other words, the mandatory record and its tests, the general demurrer, the motion in arrest, non obstante veredicto, order of repleader, including also objections upon collateral attack and discussions of res adjudicata, are always the same. Eelating to these fundamental matters the rules of construction are invariable. It will be sought to pick from Chitty, Stephen and Gould's Pleadings substantiation of this last statement. Probably none have stated it more clearly than Stephen.® Here it seems well to add that the best knowledge of the ship will necessarily include the keel and ribs as well as the superstructure. As the ship is an entirety, so is the law. The law cannot be partitioned and taught in individualized branches. Therefore it follows that the attempted distinction of this generation between substan- tive and adjective law is illusory. It is from viewpoints in procedure that the true principle in Lawrence v. Vox (N. T.), HendricJc v. Lindsay (pj. S.), and Cumber v. Wane (Eng.) is disclosed. Eights and, .remedies are interactions; they are reciprocals. This fact will clearly appear in the discussion of equity and its principles in procedure. These principles will be chosen for the central idea of the discussions, instead of promi- nent and bewildering classifications of what is substantive and 7. §§ 83-123, 1 Gr. & Eud. 8. Stephen Pleading, pp. 146-150. (Aider by pleading over, citing Jackson v. Fesked) ; § 111-119, post. PEEFACE ix ■what is adjective law. It seems that maximum discussion of this last named classification is attended with minimum under- standing of the records and their trilogies referred to. That in the latter lies the philosophy of the law, is the burden of our argument. We have referred to the disheartening announcements of a hundred great leaders in the Green Bag. From it popular journals caught up the question and discussed it, but in no complimentary way to the lawyer and his profession, and cer- tainly not to his literature." One of these observed "that the layman no longer had a monopoly in calling the law a gathering of ignorance and stupidity." From the American Bar Asso- ciation Eeports the last proposition has footing enough; but if more is needed, enough can be picked from Supreme Court Reports of several States to satisfy the most skeptical. One of these disordered States is presented in several leading articles lately current in a popular magazine.^" From among the States it seems well to select a common-law and a code-practice State; therefore we take two adjoining empires, Illinois and ^Missouri, with which to illustrate and to demonstrate that the letters in the Green Bag correctly state the condition, which is that the student is led into a "legal jungle" and is there left to find his way out as best he can. The credulity of the lawyer is pointed to, by reason of which commercialism by cheap and ignorant hands manu- factures supposed legal literature for the noblest profession. Herefrom we are told the result is both "deplorable" and "appalling." And so it is in states where the Supreme Court Eeports present cases conducted by supposed eminent professors in famous law schools, who have persuaded their courts to hold that pleadings are not essential to a coram judice proceeding, though pleadings are provided for ; and who are filling the lay press with representations that a good indictment may be constituted of five words, namely, "John Jones murdered William Smith." These writers hold that in contract the word owes may be substituted for the word murdered, etc. They insist this is the "modern and enlightened law," and according 9. See Literary Digest, Feb. 26, 1910. 10. See, also, Lange, L. C. 159, 3 Gr. & Eud. ; Hume v. Robinson, 2 id. X PEEFACE to them, those who insist that the material, jurisdictional, descriptive facts must be stated are guilty of "record worship." The discussions over these questions in supreme courts are found in the late cases in almost all of the states, and especially in Illinois and Missouri, the former a common law practice state and the latter the first code state in the valley of the Mississippi, having the first American code case.^* Practitioners find that the legal profession is no longer a gentleman's calling, affording time to write, to teach and to lead in public affairs, but that they have become drudges in treadmills; that they are spending their lives hurrying from tier upon tier, and shelf upon shelf of unending and ever-length- ening rows of Digests, Cyclopedic and annotated cases, hunting for the late case. The result of the strenuous hunt often leaves them in more doubt than when they started.^^ They may find that the court in 8. v. Fasse (1905) held that irrelevant dec- larations of counsel in argument in a court of errors, in the presence of a respondent attending a hearing therein, who failed to arise and orally protest, are part of the record, while in Wilson V. Darrow (1909) such declarations are held unavailing; or that defenses not pleaded are waived, Hudson v. Wabash R. R.;^^ but if irrelevant evidence gets before the court, then from it the court can carve out and set up a defense.^* The power of a court to proceed to hear and determine when no "cause of action" is stated is an unsettled question. This power is often solemnly asserted. For observe : Failure to file a motion in arrest foreclosed all questions involved in a general demurrer, also the motion non obstante veredicto; thus the coram non judice record becomes coram judice by acquiescence. Con- sensus tollit errorem.^^ 11. Biddle v. Eoyce (1850). 12. See Preface, Vol. 3 Gr. & Rud. 13. 101 Mo. 30 ("Code requires this"). 14. Cape G. E. E. (1909), 222 Mo. 461, 486-487. Bury V. St. Louis, 12 Mo. 298 (a statute before adoption of code)- Griffin (1839), 6 Mo. 50, citing and following, Dajidson v. Peck (1836) 4 Mo 438 446 ("It is very true that the issue is not expressly found, and the verdict is bad unless the matter is cured by the statute. The statute says no exception shall be taken to anything unless expressly decided by the court below ' '— 4 Mo. 446.) S. P., Davis v. Colt, 31 Mo. 530. See, also, Bateson, 37 Mo. 31 32, 34 (pnumeratmg the statute next mentioned). ' 15, PEEFACE xi The statute in Davidson case above cited is an existing one. But it has constantly been a bone of contention. It was flatly- denied in Hannibal R. R. v. Mahoney}'^ But it is taught that a statute regulating procedure must have reverence and respect, whether it be reasonable or unreasonable, and its paramount, high and stern command still makes decisions a haze of con- fusion, a bar to the progress of the student, and a treadmill of drudgery and anxiety to the practitioner." The functions of pleadings are not understood.^* Herefrom may be judged the condition in Missouri. This condition relating to statutes and pleadings likewise exists in Illinois and its adjacent states, except in Wisconsin and Ken- tucky. But even in the latter states, the "statute" and "our code" are dangerously emj.hasized. Why the jurisprudent leaves his profession behind him when he crosses his state line, while at home it is a jungle of contra- dictions, will appear from cases cited in the note.^* Already the states are as widely separated as warring tribes. This fact as demonstrated none can deny. It has long been said that evidence, pleading and practice, procedure in short, is the graveyard of the lawyer. Why this is so will appear from a consideration of the matters above referred to; also from the discussions of the mandatory and statutory records; also from the conserving principles of pro- From Davidson we also quote, p. 442: "Legal proceedings are known to be carried on much more loosely and in a different manner in Kentucky from what they are here. But if the proceeding against Davidson in Kentucky was not according to our practice or strict notions of regularity, it will not be sufficient to induce a court in Missouri to screen an absconding debtor on that account. ' ' Missouri and Mississippi are also widely apart. See Poreword, p. v, 4 Gr. & Bud., in relation to Fauntleroy v. Lum. 16. 42 Mo. 467. 17. Hope V. Blair, 105 Mo. 85, 93, 24 Am. St. 336; Eush v. Brown, 101 Mo. 586, 592; Davis v. Jacksonville Line (1894) 126 Mo. 69, 75, 78 (on p. 75, Story's Eq. PI., § 10, reaffirmed); Lilly v. Menke, 126 Mo. 190, 211-212; Mallinckrodt, 169 Mo. 388, 398 (ground of the general demurrer can not be waived) ; Me- Quitty, 218 Mo. 586, 591, 131 Am. St. 561; Wilson v. Darrow (1909): cases. Contra: 2 Thomp. Tri. 2310, 2311, quoted sub Variance, 4 Gr. & Eud.; And. Steph. PL 230: cases, 2nd ed.; 70 Cent. L. J. 294-296, 311-314. 18. 67 Cent. L. J. 393-394. 19. Barrow v. Grogan, 219 111. 288, 2 Gr. & Eud. (presumptions of regularity). BaUewicz v. B. B., 240 111. 238, 70 Cent. L. J. 5 (S. P. as Harrow). Devine v. B. B. Co., 237 111. 278 (issues appearing from conduct). xii PREFACE cedure.^" "Where these are not understood we are now informed that the condition is " appalling. "^^ The condition in Illinois is similar to that in Missouri. Indeed Illinois has a quasi code, by Illinois, of Illinois and for Illinois. It is a Practice Act state. The attempt has there been made to establish a practice built up on waiver and excep- tions, or, in other words, on the statutory record and its matter, and the stern commands of a statute of amendments and jeofails. In this it may be likened to the practice in the Supreme Court of the United States in cases going up from the highest court of a state."^ It is sought to impress in this work that the practice in this court is founded on statutes and their construction, and that it is devoid of that philosophy that must be a key and a guide. The Municipal Court Act of Chicago is a proposed plan of excluding the operation of the general demurrer, motion in arrest, non obstante veredicto, orders of repleader, objections on collateral attack, and of those defects of substance which a court of errors will sua sponte notice without regard to objections, exceptions, motion for a new trial, assignment of errors, abstracts of the record, and necessity for argument of each error relied upon. There are matters of substance which are necessary for the coram judice proceeding, which the state com- mands for reasons of public policy, these matters can not be waived. It is in connection with these jurisdictional matters that we recognize the functions of the general demurrer and likewise of its allies, which challenge the proceedings at the different stages above mentioned. But formal matter concerns only the parties named on the Becklenberg, 232 III. 120 (pleadings essential). O'Brien v. P., 216 lU. 354, 108 Am. St. 219 (pleadings are not jurisdictional). FranUin Union No. 4 v. P., 220 111. 355, 110 Am. St. 248 (S. P. O'Brien v. P ) Rice V. Travis, 216 lU. 249, reversing s. c. 117 111. Ap. 644, 4 Gr. & Eud. (pre- sumptions of regularity apply to courts of inferior Jurisdiction). lilden V. P., 242 lU. 536, criticised 111. Law Eeview, Marcli, 1910; 70 Cent. L. J. 284. p. V. Artesian Co., — 111. App. — (Pleading and proving res ad judicata), ■20. §§ 83-123, 1 Gr. & Eud. 21. 34 Am. Bar. Assn. Eep. 787. 22. See Preface, Vol. 3, Gr. & Eud.; also Windsor v. McVeigh, L. C. 1, id. See observations, Consensus tollit errorem. Chap. XII, post. PEEFACE -xiii record. It may be well to classify this matter as adjective law. They may waive it if they see tit; and it is the policy of the law to enforce a waiver of it. This is sometimes done in a remote, refined and technical way, as where one waives formal error by not arguing it after it has been demonstrated, and assigned for error. Coiisoisus tollit errorem. In formal error waiver is favored and there are refined rules to declare dilatory and abatement matters waived. Statutes relating to these mat- ters have not been helpful; indeed they have either been vain and fruitless or vicious, when interpreted by incompetent courts. It is the purpose here to make plain the above facts. In this demonstration we will name and point out a higher law than "our constitution," "our statute," "our code," "our revised code," "our practice act," and our "late" case. Local law can apply only to formal matter; it has not and it can not change substance or the substantive rights of the state. Attempts to change the necessities of substance have only broken the law, and each breach but adds to the drift and to the formidable wreckage that is clogging the channels of legal philosophy. "When its philosophy is lost, the law is lost. And the philosophy is lost in the "theory of the case" states, such as Xew York and Missouri, and states that have attempted to follow these, the pioneer code states. All of the code states, and particularly Missouri, have tried to follow New York. Thus the Missouri decisions illustrate those of New York. But its decisions are erratic and singular, and are not uniformly molded by fundamental law. Notable exceptions to the con- trary will be mentioned.-'' Jurisdiction in those states is a variant and fluctuating thing, and is not uniformly viewed as it is in England and the Xew England states. New Jersey and Florida. There is no "due process of law" in the "theory of the case" states. What this is appears greatly to puzzle the federal Supreme Court. According to some of its decisions, there may be for each state — each tribe — or indeed for each individual, a distinct due process of law, tests of this being the grade of intellect of the accused.^* 23. See Theory of the Case, also Variance, 4 Gr. & Eud. 24. Paraiso v. V. 8., 4 Gr. & Eud. (indictment sufficient if the accused under- stands it). XIV PEEFACE Scientifically stated, the trouble in Missouri and the theory- of-the-case states is that they have attempted to enlarge the operation of Consensus tollit error em and its cognate maxims beyond the boundaries fixed for it by the Eoman, Norman, Eng- lish and federal and best state cases. To attain this result many statutes have been enacted, and numberless cases can be cited. But, after all, the law has not been changed. The necessities of procedure constitute a law derived from immu- table principles. This law can be broken, but it can not be changed. It has been broken in many states, and in most of the American jurisdictions, but it has not been changed in a single state. The ablest judges of New York and Missouri sustain this view. The constitutional law of procedure is neither clearly written nor taught, as the school books and great cyclopedia - digests and legal opinions show. It is not plainly impressed that a court is created by, and has its footing in, the unwritten consti- tution ; also that it is limited in its power to set up and declare causes of action and grounds of defence f^ also that it can not choose its cases or arbitrarily make or declare matters and issues before it and then pass on them, for one of the maxims above constitutions, statutes and decisions is, Nemo debet esse judex in propria sua causa. A court must have a record, and the common, yet deep, constitutional rule is, "A court is bound by its record" ; which rule springs from the organic law, De non apparentibus et non existentibus eadem est ratio, which is made hereafter a chapter discussion. Accordingly, the rule is, a cause of action or a ground of defence must appear from the record with certainty. It follows that "What ought to be of record must be proved by record and by the right record," which is likewise the subject of a following chapter. From these con- siderations arises the necessity for pleadings, also that a cause of action must be described or a ground of defence pleaded, as organic law commands. This organic law is merely reaffirmed in codes and practice acts. Hence the rule is that stating matter 25. Wabula non judicium; Cohens v. Virginia, L. C. 244, 3 Gr. & Eud.; Debile fundamentum falUt opus. PREFACE XV of substance is essential for the coram judice proceeding.^" Next above are illustrations of the interactions of essential pleadings with constitutional law; this is a needed lesson, and the attempt is made to give it. Coke, Blackstone, Chitty, Stephen and Gould have failed to teach it, as we shall show. To challenge the proceeding, the general demurrer and its allies stand ready at all stages. To explain these matters arising out of organic law, a special effort is made in this volume. In the "theory of the case" states the uses of the mandatory and of the statutory records are jumbled and confused. In one case the court will hold that what belongs to one of these records must not appear in the other ;-^ while in the next, irrelevant evidence in the statutory record is held to supply allegata, not- withstanding the rule that a recovery must be secundum allegata et probata.-^ The law is an entirety. It is possible to correlate important matters, such as constitutional law, with objections upon col- lateral attack, and all the matters of substance and the tests thereof above mentioned, which should be connectedly consid- ered. The attempt to write and to teach them irrelatively has paved the way for the "theory of the case" as advocated by Judge Seymour D. Thompson.^® This theory is that essential pleadings are not jurisdictional; that they are formal matter and as such can be waived; in other words, that jurisdiction of the person, with a sufficient judgment entry, will constitute a coram judice proceeding without more; that this judgment entry will be presumed to be entered upon sufficient authority, upon the principle of Omnia prcesumuntur rite. We will point out, in relation to Illinois and Missouri, great conflict of opinion as to the uses and functions of the statutory 26. Sto. Eq. PI. 10; title Story, 4 Gr. & Eud.; U. S. v. Cruikshank, L. C. 232, 3 id.; Davis, 126 Mo. 69, 75 (an able paraphrase of Story; a most instructive case); cited and followed in McQuitty, 218 Mo.. 586, 131 Am. St. 561; §§ 47, 68, 119, 490, et seq., post. 27. Pennowfsky, 205 Mo. 135; Gramp v. Dunnivant, §463, post; Planing Mill, L. C. 2d, 3 Gr. & Eud.; Milling Co. v. St. Louis, 222 Mo. 306; Consensus tollit errorem. On the other hand courts flagrantly violate the rule. Cape G. E. E., 222 Mo. 461, 486, 487; §§444-447, post. See Theory of the Case, 4 Gr. & Eud. 28. Cape G. E. B., 222 Mo. 461, 486 (irrelevant probata supplied allegata. See Quod ab initio, Chapter VIII, post). 29. 2 Thomp. Tri. §§ 2310, 2311. 70 Cent. L. J. 311-314; 455-460. xvi PEEFACE records, and that the first and greatest rule of evidence is not comprehended, which is : "What ought to be of record must be proved by record and by the right record." Chap. X, post. Also that the functions of pleadings are not understood agreeably to this definition : "Pleadings are the juridical means of investing a court with jurisdiction of a sub- ject-matter to adjudicate it." (See Illinois, also ilissouri, post.) Nor are the canons of procedure in the prescriptive consti- tution understood whence these rules are deduced. These canons we gather, state, translate, and seek to impress from every angle and viewpoint that suggests itself. We call them the trilogy of procedure or strict construction. From the viewpoint of a prescriptive constitution, the heart and vitals of the six leading subjects of the law — procedure, equity, contract, crime, tort, and construction — are gathered and set in trilogies or three-maxim groups, by which the entire body of the law is articulated. From and to these trilogies, cen- tripetally and centrifugally, the argument proceeds; around them, as a center, the entire body of the law is brought into review as a periphery. But the greatest attention is given procedure, codes and practice acts, for reasons already indi- cated. Consequently the work will be supplementary and com- plementary to the six leading subjects of the law, and particu- larly procedure (evidence, pleading and practice). At the base of this leading subject, important rules and definitions will be found. Important rules of constitutional and statutory con- struction will appear throughout the work, and these will be discussed in the light of the higher law ; hereby will appear a distinctive work on construction. In this way a new light is thrown over codes of civil procedure. This will appear from the discussions of the statutes of Amendment and Jeofails, whether in codes or in practice acts. In substance and in spirit these are always the same. It is not that a new dispensation is advocated, but only that the restoration of the old law is awaiting intelligent recognition and a hospitable acceptance of its beneficence to all of humanity. PREFACE xvii As to writing and teaching the law, there have come to be various sects and isms. One dean sees in the law at least thirty thousand rules; while an author condenses the elements of the law in a small volimie.^'' A great lawyer we shall quote sees no addition to the law from constitutions and statutes; while, on the other hand, a widely known and much respected author and teacher takes the view that the law has undergone, is under- going, and is to undergo a great change; but what this change is to be is in no way stated or indicated. He leaves the field free and open to all comers. His words may be construed to coimtenance either the abdication or the restoration of organic law, or, in other words, the immutable elements of jurisprudence. At the threshold of the restatement of the law, its elements should be known and stated; as to whether or not there is old and unchangeable law, there are conflicting views. These opposing views are important ; therefore we will quote them. The first reads : "It is scarcely an exaggeration to say that nearly the whole body of that law which really prescribes rules of civil conduct, which is stamped with the moral quality of justice, and which governs the private transactions of men with each other, is substantially untouched by the statute book." — James G. Carter (Lester v. Foxcroft, L. C. 341, 3 Gr. & Kud.). The second quotation is from a response made to the calls for a restatement of the law, in the Green Bag (February, A. D. 1910). From this response we quote : "It is untimely because our law is passing through a period of radical change both in substance and in form, all along the line. A generation must elapse before it can be stated accurately as a body of fixed and coherent principles. "It is unsound because there are to-day fifty distinct bodies of independent sov- ereign law within this nation varying at countless points and in infinite de- tails."— Dean Wigmore, 22 Green Bag, 428 (A. D. 1910). It will be conceded that a great change of the law has come and that the elements of this change have made erosion here and accretion there, with all the natural consequences of such changes. But it is not conceded that these changes are without origin, designs or models, and that the source and end of these changes are unknown and can not be defined. We shall demon- strate that the spirit of these changes is from the principles 30. Eobinson 's Elements of Law. xviii PEEFACE of the Civil Law, and that this is illustrated by the amelioration that has flowed from the introduction and restoration of equity and its constantly developing principles. We shall call attention to the introductory chapters of Story's Equity, also of Pome- roy's and Bispham's, as to the origin and progress of equity, and its influence upon the leading branches of the, law, and especially procedure. The concluding chapter of this work will also support these conclusions. Herefrom will appear prin- ciples that are parts of the law referred to by Mr. Carter. The argument will be offered, that there is a philosophy in procedure, which can be traced from the uses and functions of two juridical records, and that these records can be defined and their uses demonstrated within a small compass. The uses of these records will be, figuratively speaking, indicated by a line drawn from orient peaks of the civil law, and that herefrom the dominating rules and principles can be perceived and aligned. Thus will appear the difference between teaching from Alpine mountains on one hand, and molehills on the other hand. The Mount Everests of jurisprudence can be briefly stated, while the trivialities of the law can be gathered for the matter of long rows of books. He who understands the trilogy of equity will perceive endless repetitions; to him several of Coke's maxims of equity will appear as repetitions. And so tne cognate maxims of the trilogy of procedure will appear. This is well illustrated by Chapter V and its succeeding chapters. "The manner of the Romans," as used by Festus, when unfolded, contains more than some volumes. Brief, terse statements of great principles cannot be comprehended by all intellects. Such teaching may be likened to feeding an animal concentrated food without bran or hay for a digestive menstruum. Metaphorically speaking, the jurisprudent has to deal with both "food tablets" and "baled hay," and even "chaff pads." The truth of this statement will appear to him who masters the trilogies of the six leading subjects (§§ 1-26 of this volume). The conflict of theories has too long prevailed; now it is demonstration that is needed. Therefore we offer and keep prominent on the following pages the trilogy of procedure and its cognate principles. There is a loud and imperative call for a change, and particularly for the stating of fundamental PREFACE xix principles so they can be comprehended and be uniformly respected. To support these views, we now offer the trilogy of procedure, Chapters V, VI and VII. Further demonstration will be found in succeeding chapters. "Why is jurisprudence an abracadabra among the states? Why is each a tribe, a law unto itself, with warring chiefs within? Why is so much claimed for native sons, their decisions and compilations for students, in the face of irrefragable and humiliating facts? Where and by whom are the cardinal prin- ciples catalogued and made accessible and clear? Are not the orient peaks obscured and shrouded in a menacing cloud of haze and confusion which hangs over and darkens the way, deluging the plains below with a conglomeration of parrotings, of clamor and din, of paraphrases and pastings, if not manifest reprint and repetitions — ^the output of commercialism? Of such matter, rows of books as long as clothes-lines are shown the beginner as necessities for his progress. Herefrom naught is seen but a foreboding and repulsive career of drudgery, of doubt, and, too often, disappointment. See how the soldier, the sailor, the surgeon, the engineer, and the scientist have advanced! But how is it with the lawyer? His ignorance is said to be appalling.^"^ When the philosophy of the law is lost, the law is lost. Where are the cardinal principles? Learn the condition by going from school to school; look over most of the literature that is used, and note how little of this a lawyer values for any purpose or will have on his shelves. Who will claim that the fundamentals of the law can be found and picked out by any two lawyers alike from the literature in general use? And can any one, with ease and facility, turn to any truly great principle and find it best stated in that literature, also in connection there- with the most widely found and cited cases in all English- speaking countries? For example, take Verba fortius accipiuntur contra proferentem (Every presumption is against a pleader). Get at the facts and see why the graduate has a narrow vision ; why his situation may be likened to one digging a well — the deeper he "digs," the more limited his horizon; why it is that SOa. 34 Am. Bar. Assn. Rep. 787, 832, 836; 70 Cent. L. J. 294-296, 311-314, 402-407, 455-460. XX PEEFACB if he goes from one state to another he leaves his hard-earned local and provincial "late-case" matter behind. Should the main stream or the rivulets be explored? Should the water at the fountain be sipped, or the flow therefrom sought in the marshes below? Who will deny that in some schools nothing is taught beyond nibbling at the buds— the "late case" ; that the acorns, the roots, and the heartwood are unknown ; that the lawyer as a botanist is not a thinker nor does he know all parts of the plant of whick he makes a specialty? There is reason for saying that the time has come when the condition should be realized and therefrom hard and pointed questions asked. Society needs lawyers ; these must come from beginners, and these must be protected. The greatest of the professions should not be allowed to become the graft of cupidity, of selfishness, of stupidity, and of ignorance. Now, what do the facts show? To arouse intellectual interest, it seems well to call attention, to the inadequacy of old definitions properly to impress, as is. indicated by an editorial in the 67 Central Law Journal, 393-394. Herein is indited an answer to a Chicago paper, which discloses. a wide diversity of views as to the functions of pleadings; here we have journals of great cities, studded with law schools, engaged in a duel which shows that some one is floundering in the marshy silt of judicial opinion as to the ends and purposes of essential records. Illinois and Missouri altogether have a thousand books, any one of which might well have a true defini- tion of pleadings. But have they? Which is that book, and who can find it; will any two lawyers agree upon the precise import of the lines when found ?^^ Each of these states has a statute of jeofails that is upheld and nullified in alternation. Relating to Practice Act provisions and codes is illimitable jargon. This statute was nullified in. C. & A. R. R. V. Clausen?^ 31. See Illinois, Vol. II, Gr. & -Bud. ; also Vovaston : 217, Vol. Ill, id. ; also Mis- souri, Vol. IV, id. 32. 173 111. 100. See also McAndrews, 222 111. 232 (same point as Eushton u. Aspinall: 5, Vol. Ill, Gr. & End.); Stillo, 140 111. Ap. 428; Malliiickro.lt, 16» Mo. 338 (Vol. Ill, Gr. & Eud.) ; Dovaston; 217, Vol. Ill; also Missouri and Variance, Vol. IV, id. (See Carter 's Origin and Growth of Law.) PEEFACE xxi An illustration is aiforded from plain, practical questions, e.g.: What facts and exemplifications are necessary to prove an estoppel of record or title to property, whether real or personal, that depends on an execution or a judicial sale! Is this a local or provincial question ? Or of evidence, or pleading, or practice, or real estate, or personal property, or "adjective" or "sub- stantive" law, or of constitutional law, or of government! Is the following rule of evidence involved, namely, "What ought to be of record must be proved by record and by the right record"? Is this a major or a minor rule of evidence? Does it inseparably involve pleading, and the record upon which a judgment or decree depends? Can a constitutionalism be operated without respect for this rule of evidence? Upon what record does the validity of a judg-ment or a decree depend? Is the study of procedure a study of government ?*^ Ask for the definitions of the two juridical records, the mandatory and the statutory; what are their respective origins, and their exclusive functions throughout the law? What have the statutes of jeofails to do with these records ; do they affect both alike ? What is the construction of these statutes in Illinois, Missouri, Indiana, Ohio, and New York? Are these statutes con- gruously construed in any of these states? Look from C. S A. R. R. V. Clausen, also from the Eoman and the common law, and see if the statute is not a reductio ad ahsurdum. If it is, why should not the courts tersely say so and stop? When they are viewed as merely affirmative statutes, why should reports of supreme courts be made a bewilderment of discussions relating to the construction thereof?^* To support these conclusions, the matter presented in sec- tions 342-360, 362-505 is submitted. Herefrom will appear whether or not each state has distinctive laws relating to funda- mental principles. Applying these principles in one case and denying them in the next is opposed to the view that each state has a distinct body of law. Many of the cases we shall present will show that several states have nothing more than gatherings alike of antinomies, devoid of all congruity, philosophy, or usefulness. 33. §§ 317, 473 et seq. 34. See Illinois, Vol. II, Gr. & Rud.; Missouri, Variance, Vol. IV, id. Carter's Origin, Growth and Function of Law. xxu PEEFACE It is now plainly demonstrated that the wreck of the pre- scriptive constitution is not perceived nor understood; that a distortion of principles is parroted and taught instead of funda- mental law; that students are not taught that the study of procedure is a study of government; that disturbances of govern- ment react upon procedure ; that there can not be named a dozea fundamental principles in concise and teachable form, that can be found and defined in a score of the most widely used student's books. To illustrate: Let us offer this as a cardinal rule of evidence, namely, "What ought to be of record must be proved by record and by the right record." Where can this be found and where is it taught; where is it expressed and explained? Where is it shown that the operations of a constitutionalism depend upon this rulef^® This work is exploited to meet the commends of the American Bar Association (1879), which express a high appreciation of American Law Schools because they teach the familiar maxims, general principles, and leading cases. Statutes in some states have enumerated and reaflBrmed many of these maxims, as in North Dakota. But, on the other hand, prominent authors and professors have denounced these maxims.^" And there are late cases deploring the employment of the maxim; one judge of a court will so express himself, while another of the same court will cite them. We have already referred to Sedgwick on Damages. If the familiar maxims are to be taught and used, then they ought to be cited, explained, tabulated, and indexed. For these ends, this work and its companion, The Grounds and Eudiments of Law, are designed. There are principles of the law that have not been and cannot be changed; breaking and ignoring them is not changing them. The immutable principles of jurispru- dence are unchangeable. To support this conclusion. Chapter I, The Datum Posts of Jurisprudence, of this work is offered. The view is submitted that there is more of equity and of the civil law in procedure than American courts have recognized. We may discoyer both Bacons and Cokes in each generation, the 35. See Literature, Procedure, Variance, Vol. IV, Gr. & Eud. 36. Earn, Judgtg., §49; see Maxims, Theory of the Case, also Variance 4 Gr & Eud. ' PEEFACE xxiii former asking for recognition of universal principles, while the latter insist that procedure is local and provincial, and that its principles may be created and abolished by statute, and that each state may have a distinct procedure of its own. It will be shown that the legal profession is submerged by discussions of ' * our constitutions ' ' and ' ' our statute ' ' and ' ' our code, " " our decisions" and our "late case," and that from these discussions is gathered the matter for "chaff pads" and "space fillers," which are thrown together, bound, and labeled as "elementary law„" or under other catchy titles, by the incompetent hands of commercialism; its clamor and quackery deserve the rebuke of every lawyer, and a few have spoken. Equity principles govern procedure quite as much as they do other branches of the law; and often the rules of equity absolutely govern, as in cases of the equitable exceptions to the statute of frauds. In tliis class of cases, statutes and local law do not govern. So to speak, the entire controversy is translated into equity; and its principles override statutes. In prcBsentia majoris cessat potentia minoris. Thus it is well for the conserving principles of procedure, when they are known and vindicated. It can be demonstrated that the heart and vitals of procedure are the maxims of the civil law ; also that the code reaffirms them ; also that construc- tion necessarily and always imports fundamental principles. Benedicta est expositio quando res redimitur a destructione. In conclusion it is due to say that the author has to thank an accomplished lawyer of St. Louis, Edward D'Arcy, for much aid in the preparation of this work ; also Helen Eccles Douglass, of Chicago, for her assistance in preparing many of the maxims and discussions, as well as the Text Index. It is sincerely hoped that the profession will extend its usual kind indulgence to the performance, which is now respect- fully submitted. W. T Hughes. Jan uary 1, 1911. TABLE OF CONTENTS PART I CHAPTEE I The Datum Posts of Jurisprudence. The six leading subjects of tlie law — Procedure, Equity, Contract, Crime, Tort and Construction — articulated, and the relations of Equity to all other branches illustrated. The trilogy of procedure introduced and defined. §§ 1-26 CHAPTER II Equity and Its Paramount Principles. The equity of the Eenaissance and the equity of the twentieth century; the maxims of the latter: 1. Juris proEcepta sunt hcec, Jioneste vivere, alterum non Iwdere, suum cuique tribuere: These are the precepts of the law, to live honorably, to hurt nobody, to render to every one his due. 2. Vbi jus ibi remedium: Where there is a right, there is a remed}'. 3. Regula pro lege, si deficit lex: In default of the law, the maxim rules. Maxims supply the law. Principles of the prescriptive constitution. §§ 27-39 CHAPTER III Dae Process of Law. The elements of this subject are the fundamental principles of the pre- scriptive constitution; enumeration and discussion of these from the maxims, illustrated by leading English, federal and state cases; also the trilogy of procedure ; also the mandatory and the statutory recerds. Fundamental principles of appellate procedure. Pleadings defined. The division of state power. §§ 40-59 XXV TABLE OF CONTENTS CHAPTEE IV Immutable Elements Common to All Branches of the Law. The law is an entirety. The trilogies of equity, procedure, of strict and of liberal construction, of contract, crime and tort are related. Codes and practice acts reaffirm old principles ; statutes have not and can not change these principles. Eestoration of the Civil Lavir by the Codes. Juris prcecepta sunt lime, honeste vivere, alterum non Imdere, suum cuique tribuere: These are the precepts of the law, to live honor- ably, to hurt nobody, to render to every one his due. In prcesentia majoris cessat potentia minoris: In the presence of the major, the power of the minor ceases. §§ 60-100 PART II CHAPTEE V De Non Apparentibus et Non Existentibus Eadem Est Ratio : Where the Court cannot take judicial notice of a fact, it is the same as if the fact had not existed. Dovaston v. Payne; V. S. v. Cruilcshanh, with cognate cases from Illi- nois, Missouri, New York and other states. The trilogy of procedure and of liberal construction presented from De non apparentibus et non existentibus eadem est ratio, and its cognates, Frustra probatur quod probatum non relevat (Chapter VI.), and Verba fortius accipiuntur contra proferentem (Chapter VII.). The corollaries of this trilogy are : Quod ab initio non valet intractu temporis non convalescet : That which was void in the beginning cannot be made valid by lapse of time (Chapter VIII.). Debile fundamentum fallit opus: Where the foundation fails, all goes to the ground; or, where there is a weak foundation the work fails (Chapter IX.). What ought to be of record must be proved by record and by the right record (Chapter X.). The trilogy of procedure and its corollaries, presenting the philosophy of the mandatory and the statutory records, interweaving therewith the general demurrer and its correlatives — ^the motion in arrest of judg- TABLE OF CONTENTS xxvii ment, the motion non obstante veredicto, the order of repleader, objec- tions upon collateral attack, and res adjudicata requirements. Stephens' Pleadings quoted and discussed. This argument founded on the maxims, and English, federal and best state cases ; illustrations from the truly leading as well as late cases. §§ 102-139 CHAPTER VI Frustra Probatur Quod Probatum Non Relevat: It is vain to prove what is not in question, or what is not alleged and denied. Bristow V. Wright (Eng.) ; Crockett v. Lee (U. S.) ; Harrison v. Nixon (U. S.) ; Munday v. Vail (N. J.) ; Huntsman v. S. (Tex.) ; DicTcen- sheets v. Kaufman (Ind.) ; S. v. MuencJi (Mo.) ; Guedel v. P. (111.) ; Fish V. Cleland (111.); Lang v. Metzger (111.). Pleadings essential to confer jurisdiction. Without an issue there is nothing to try. The trilogy of liberal construction. Departures, variances, failure of proof. §§ 140-162 CHAPTER VII Verba Fortius Accipiuntur Contra Proferentem : Every presumption is against a pleader. Dovaston v. Payne; Rushton v. Aspinall (Eng.) ; Pain ex parte (repug- nant pleadings are void) ; U. S. v. Linn; Stephen v. Beall; U. S. v. CruikshanJc, with Florida, Illinois, New York, Wisconsin, Missouri and Code cases from various states. Veria fortius a maxim of the trilogy of procedure; its relations to the trilogy of liberal construction. Coram judice proceedings essential; for this an authority must appear from the right record. Strict and liberal construction; their respective trilogies; the dividing line. Public policy axioms that cannot be waived. Matter of substance in the right record essential. The study of procedure is the study of government. Matter of substance and formal matter; distinctions; important tests and rules. Verba fortius a principle of the prescriptive constitution ; codes have not and cannot abolish it. xxviii TABLE OF CONTENTS Appellate Procedure; presumptions in. The statutory record and its formal matter may be waived in part or in toto. Ees ad judicata 'plesiSi'pTesumTptions. §§ 163-189 CHAPTER VIII Quod ab Initio Non Valet Intractu Temporis Non Convalescet: That Avhich was void in the beginning cannot be made valid by lapse of time. This maxim and its cognates illustrated by Windsor v. McVeigh, Camp- bell V. Porter, U. S. v. Cruikshanlc, Crain v. U. S., Dobson v. Campbell, together with English, Illinois, Missouri and cases from other states. Quod ah initio is a maxim of public policy. No "cause of action stated," no authority to a court to act. The trilogy of strict and of liberal construction. Illustration from contract elements. 8S 190-205a CHAPTEE IX Debile Fundamentum Fallit Opus: Where the foundation fails all goes to the ground; or, Where there is a vi^eak foundation the work fails. This maxim and its cognates illustrated with English, federal and state cases. Rushton V. Aspinall; J' Anson v. Stuart (Eng.) ; Windsor v McVeigh (TJ. S.). A cause of action must be stated. Jurisdictional elements must affirmatively appear upon the right record. The mandatory record arises from the prescriptive constitution. Certainty in procedure is required by public policy. The maxim applies in taxation; also in contract. §§ 206-217 CHAPTEE X What Ought to Be of Record Must Be Proved by Record and by the Right Record. "^ A leading rule of evidence. The rule illustrated with the preceding maxims, and cases. Principles of the prescriptive constitution. TABLE OF CONTENTS xxix Superior and inferior courts; distinctions; C repps v. Durdenj Illinois and ilissouri cases. The mandatory and the statutory records defined and discussed. The best evidence must be produced. Allegations must be in the right document, also admissions, also denials. Federal questions, how raised. _ §§ 218-231 CHAPTER XI Interest Reipublicae ut Sit Finis Litium: It concerns the public that there be an end to litigation. Illustrated with English, federal and state cases. Mariott V. Hampton. §§ 232-244 CHAPTEE XII Consensus Tollit Errorem: The acquiescence of a party who might take advantage of an error obviates its effect. Illustrated with English, federal and state cases. Windsor v. McVeigh; Cooper v. Reynolds. §§ 245-269 CHAPTER XIII Omnia Praesumuntur Rite et Solemniter Esse Acta: All things are presumed to have been rightly and regularly done. Dovaston v. Payne; Stephens v. Beall; U. S. v Linn (Every presumption is against a pleader). Windsor v. McVeigh; Cooper v. Reynolds. §§ 270-282 CHAPTEE XIV Ut Res Magis Valeat Quam Pereat: It is better to conserve than to destroy. §§ 283-293 CHAPTER XV Allegans Contraria Non Est Audiendus: He is not to be heard who alleges things contradictory to each other. Illustrated with English, federal and state cases. Pichard v. Sears; Freeman v. Cooke; Horn v. Cole. §§ 294-308 XXX TABLE OF CONTENTS PART III CHAPTER XVI Construction of Practice Acts, Illustrated by English, Federal, Illinois and Code Cases. The trilogy of procedure is generally vindicated, but sometimes denied. Pleadings as an element of Jurisdiction in Illinois: Conflicting cases. Federal cases cited : Cromwell v. County of Sac; Rose v. Himely. What is a coram judice proceeding? Essential elements. Limitations of legislative authority. Taylor v. Sprinkle; Thomas v. P. §§ 310-361 Observations on the following cases: I. Kenealy v. Olos, 241 111. 15-26. Interest reipublicce ut sit -finis litium demands pleadings; no allegata, no probata; proof without allegations is unavailing; it is presumed that the court disregarded irrelevant evidence. A judgment depends upon its record. A judgment not attended with its authority is coram non judice. Citing Thompson v. Hememvay, 218 111. 46; Baldwin, 204 111. 281; Riverside Co., 120 111. 9 ; Wright v. Griffey, 147 111. 496, 37 Am. St. 228, L.C. 28, 3 Gr. & Eud. (estoppel by verdict). § 342. 11. Baldwin v. Hanecy, 204 111. 281-290. Estoppel by verdict; this depends on issues; pleadings are essential for res adjudicata; res adjudicata depends upon its "four identities," and these must be gathered from the man- datory record. What the record does not show does not exist and that which is shown is conclusive. Citing Cromwell r. County of Sac, 94 U. S. 351, L.C. 26, 3 Gr. & Eud. ; Riverside Co., 120 111. 9; Harmon, 123 111. 122, 75 Am. St. 503; Wright V. Griffey, L.C. 28, 3 Gr. & Eud. § 343. III. Wright V. Griffey, 147 111. 496, 37 Am. St. 228, L. C. 28, 3 Gr & Eud. Only matter presented by the pleadings and within the scope of the allegations is barred by res adjudicata; nominal parties to a record may be viewed as surplusage; the law looks at substance, not form in res adjudicata questions. Thomas, 24 How. 33; Follanshee, 74 Pa. St. 306, 13 Am. Eep. 671 (attorney a competent witness) ; Lawrence, 2 Sum. TABLE OF CONTENTS xxxi 20; Eitchen, 2 Wm. Bl. 779; Big. Estop., 2nd ed. 46 et seq. Res adjudicata matter must be gathered from the mandatory record; but the statutory record may be com- petent to identify the issues, where these are general, but the mandatory record can not be contradicted; identify- ing and explaining is not contradicting. What ought to be of record must be proved by record and by the right record. § 344. TV. Riverside Co. v. Townshend, 120 111. 1-21. The "cause of action" must appear from the right record, also the purpose of the suit must be the same. The judg- ment in a forcible entry suit can not be pleaded in eject- ment: cases cited. Estoppels are odious, or, in other words. Verba fortius accipiuntur contra proferentem (Every pre- sumption is against a pleader). § 345. V. Balsewicz i\ C, B. & Q. R. R., 240 111. 238, 70 Cent. L. J. 5. A Probate Court is a Court of superior jurisdiction; from its order granting letters of administration, regularity is con- clusively presumed. Ex dolo malo non oritur actio (Fraud vitiates aU into which it enters) yields to the presumption of regularity. Omnia prcesumuntur rite. P. v. Artesian Stone Co. stated and discussed. § 346. VI. Thomas v. P., 107 111. 517, 47 Am. Eep. 458. A statute can not authorize an administration of a living man's estate; Fabula non judicium; one is presumed dead after an absence of seven years; jurisdictional facts must affirm- atively appear in the right record, and also be true in fact. One is never estopped by proceedings to which he was not a party. Pleadings are indispensable to confer jurisdiction; jurisdictional facts will not be presumed. De non apparen- tilus et non existentihus eadem est ratio. Facts must exist, must be real. Thompson v. Whitman, 18 Wall. 457; Wheel- right V. Depeyster, 1 Johns. 471, 3 Am. Dec. 345; Rose v. Himely, 4 Cranch, 269 (Marshall, C. J.), quoted and fol- lowed. (S. P., Crockett v. Lee, 7 Wheat. 522, 526-527) ; Wight, 39 111. 563 (the facts were real) ; Dodge, 97 111. 338, 37 Am. Eep. Ill (the facts were real). Pleadings must exist, and describe a real existing matter which the court, according to its organization and purposes, may take jurisdiction of. Ignorantia legis neminem excusat. vvvn TABLE OF CONTENTS One must take notice of judicial records, and of the author- ity these records give a court. A court is bound by its record; its proceedings are tested by its record; without a record, the judgments and orders of a court are coram non judice. "Due process of law" depends upon jurisdiction properly con- ferred. Audi alteram partem. §§ 347-354. VII. O'Brien v. P., 215 111. 354, 108 Am. St. 219. rieadings are not essential to confer jurisdiction. Jurisdiction is founded upon two matters only: (1) jurisdiction of the person and (2) a judgment entry in sufficient form which the court could or might have entered had it been properly authorized by a sufficient record. Omnia prcesumuntur rite applied. § 355. YIII. Franklin Union No. ^ v. P., 220 111. 355, 110 Am. St. 248: S. P. as O'Brien, supra. § 356. IX. Rice V. Travis, 216 111. 249, reversing, 117 111. Ap. 644. Omnia prasumuntur rite applies to inferior courts. § 357. X. Taylor v. Sprinlcle, 1 111. 1. Conclusions of law are nullities. Legislatures can not pre- scribe conclusions of law as a juridical means. There are limi- tations of legislative authority; it may regulate formal mat- ters, but not prescribe the matter of substance. §§ 315, 341, 356, 358. XL Tilden v. P. (1909), 242 111. 536; criticised. 111. Law Eev., March, 1910; 70 Cent. L. J. 284-285. Eepugnant pleadings are void. Technical construction of indict- ment. § 359. XII. Bisliop V. Biisse, 69 111. 403, Chipman's Cases Contracts, 227. A singular and erratic decision on contract. Deductions there- from. §§ 360-361. CHAPTER XVII Construction of Practice Acts, Illustrated by English, Federal, Illinois and Code Cases. Codes reaffirm principles of the prescriptive constitution. New York and Missouri the first Code states. Codes reaffirm the trilogy of procedure. TABLE OF CONTENTS xxxiii Statutes of Amendments and Jeofails, the liberal provisions of "our Code"' apply to formal matters and not to matters of substance. Statutory provisions often viewed as paramount law. The philosophies of the mandatory and of the statutory record emasculated by statu- tory construction; procedure a tangle of statutes and conflicting deci- sions ; illustrations of these. Theory of the case often respected. The study of procedure is the study of government. §§ 362-406 Observations on the following cases : I. Biddle v. Boyce (1850), 13 Mo. 532. The Code will be construed to harmonize with fundamental law; facts must aflSrmatively appear; they will not be pre- sumed; every presumption is against the pleader. (Veria fortiits.) Querulous attitude of the Court. Supposititious opinions of Biddle; what the court might have. said. §§ 406-427. ^ II. Eno V. Woodworth (1850), 4 N. Y. 249, 53 Am. Dec. 370, n.. * Second American Code Case. Observations on; vicious con- struction of the code. What language will present a cause of action ; will the language of tl.e common courts at common law? §§-428-434. III. S. ex rel. Pemiscot Co. v. Scott, 104 Mo. 32. When "no cause of action" is stated, still a statute may limit the power of a court of errors to review such a record. §§ 435- 444. lY. Cape G. R. B. v. R. R., 222 Mo. 461-487. The statute of frauds and registry acts yield to the opera- tion of fundamental equities. Defenses not pleaded are waived; and a plea of estoppel ought to be pleaded; but if it be not pleaded, and irrelevant evi- dence is admitted without objection, then the required alle- gata is waived; consequently an answer can be waived; a defense can be carved out and set up from irrelevant evi- dence. §§ 445-447. V. Hope V. Blair (1891), 105 Mo. 85, 24 Am. St. 366. Pleadings are essential to invest a court with jurisdiction of a matter, to hear and to determine it; a judgment without the requisite allegata is void, eiting Cooper v. Reynolds xxxiv TABLE OF CONTEJSTTS (r. S.) ; Munday v. Vail. Interest reipublicm requiring pleadings. Notes from 24 Am. St., p. 366 : cases. §§ 448- 452. VI. BulMey v. Big Muddy Co. (1887)-, 77 Mo. 105. "Legal capacity to sue" may be waived under "our statute." Notes to Bulkley, and contra cases cited; statutes can not dispense with requirement of "due process of law"; limita- tions of legislative authority. §§ 453-457. VII. Davis V. Jacksonville, 126 Mo. 69. The statement of a cause of action is essential to confer jurisdic- tion; otherwise the proceedings are subject to collateral at- tack. The liberal provisions of "our Code" do not apply to substance but only to formal defects. § 458. VIII. Lilly V. Menle, 126 Mo. 190, 211-212. What is subject to motion in arrest of judgment is error that saves itself; statutes are construed accordingly; limitations of legislative interference. §§ 459-461. IX. Baieson v. GlarTc, 37 Mo. 31. Distinctions between the mandatory and the statutory records. Errors shown by the former saves it^lf; but error shown by the latter must be excepted to, and this evinced by the right record. Slacum V. Pomery (TJ. S.) cited and approved (errors of substance will keep); HasTcell (1862), 31 Mo. 435, 437 (denied in Bateson, also in Mallinclcrodt) . § 462. X. Gramp v. Dunnivant (1856), 23 Mo. 254. Exceptions shown by the mandatory record will not be noticed. Extended note by the author ; the elements of contract and of pleadings are interactions; illustrations. Fundamental law requires pleadings; statutes can not abolish them. §§ 463-479. ■ XL Carson v. Ely (1865), 23 Mo. 261. Elements of contract; voluntary services no consideration; it must be averred that the consideration moved at the promis- or's "instance and request"; this allegation is substance; it must affirmatively appear. The element of contract and the allegations are interactions. Elucidations by the author. §§ 480-482. TABLE OP CONTENTS xxxv XII. Andrews v. Lynch (1858), 37 Mo. 167-170. A defective statement of a "cause of action" stands or falls by itself ; it can not be aided by subsequent pleadings. Davis ante, also Sec. 10 Story's Eq. PI. is reaffirmed. Notes by the autlior, illustrating Andrews in the light of fundamental law. The public is a silent but an implied party upon the record. Interest reipuhlicce. Aider by pleadings over, and by verdict; limitations of this rule; statutes restrained by fundamental law. A statute copied from another state carries the construction by the latter. Origin of the liberal provisions of the Code. § 483-496. XIII. Mallinclrodt Works v. NemnicTi, 169 Mo. 388, L.C. 12a, 3 Gr. & Eud. A cause of action must be stated; this can not be waived; the general demurrer will keep ; it needs neither objection nor exception nor a bill of exceptions ; it may be raised for the first time on collateral attack. Davis, supra. ClarJc v. Dillon, 97 N. Y. 370, stated and discussed. The liberal provisions of the Code apply to formal defects only. Davis, supra; Statutes will be restrained within fundamental law. §§ 497-504. XIV. Hannital B. R. v. Mahoney, 42 Mo. 467. Error shown from the mandatory record saves itself. 8. P., Bateson, Davis, Mallinckrodt, supra. Contra, Hashell, 31 Mo. 435, 437. (Statute may abolish required substance.) §§ 505-508. XV. Rector v. Price, 1 Mo. 198. Necessitas inducit privilegium quoad jura privata : With respect to private rights necessity excuses one acting under its influ- ence. § 509. PART IV CHAPTEE XVIII The Prescriptive Constitution. Idem agens et patiens esse non potest. This principle illustrated in Michoud v. Girod, Davoue v. Fanning and cognate cases. §§ 510-522 EQUITY ITS PRINCIPLES IN PROCEDURE, CODES AND PRACTICE ACTS THE Prescriptive Constitution PART I INTEODUCTOEY CHAPTERS (§§1-100) I. The Datum Posts of Jueispkxjdence. These are the immutable principles of law. §§ 1-26. II. Eqltitt: Peinciples in Peoceduee, Codes and Peactice Acts. Equity has attracted all of the Eoman law. §§ 27-39. in. Due Peocess of Law. The essentials of administrative law. §§40-59. TV. The Law Is an Entieety. The law must be comprehended as a whole. § § 60-100. EQUITY IN PEOCEDUEE CHAPTER I (§§1-26) THE DATUM POSTS OF JUEISPEUDENCE . "The law schools teach the familiar maxims." — Am. Bar Assn. (1879) : 4 III. Law Bev. 84-96. **The law has its roots and heartwood like the sturdy tree." "The number of cases is legion, but the principles they established are comparatively few, capable of being thoroughly mastered and capable also of direct and intelligent Etatement. • • * who shall digest the digests?" — Judge John F. Dillon. "The number of our precedents when generalized and reduced to a system, is not nnmanageably large. They present themselves as a finite body of dogma, which may be mastered in a reasonable time." — Justice O. W. Holmes. § 1. The Fundamental Principles of Six Leading Subjects.— Six leading subjects of the law are the Toots and the, trunk of all its branches. The leading subjects we shall introduce and refer to are Procedure, Equity, Contract, Crime, Tort and Construction. These subjects are developed around certain fundamental principles which are vital to those branches. The best presentation of these principles is to gather them and translate them, and, as far as practical, name the leading cases that illustrate the application of them. The maxims that are the heart and vitals of the subjects above referred to are stated and defined in this chapter. Procedure has a trilogy constituted of these maxims, namely : J. De non apparentibus et non existentihus eadem est ratio: What is not jurid- ically presented cannot be judicially decided. A court must have a record; a conrt is bound by its record. 2 Gr. & Eud.; Sto. Eq., PI., § 10. 2. Frustra prohatur quod prohatum non relevat: It is vain to prove what is not alleged. The evidence must eorrespond with the allegations and be confined to the point in issue. 1 Gt. Ev. 51. A recovery must be secundum allegata et probata. 3. Verba fortius accipiuntur contra proferentem: Every presumption is against the composer (or the pleader). This is a universal rule of construction, and applies to all documents and parts of the law. See 4 Gr. & Eud. See §§ 333, 381 post. A trilogy of cognate maxims of the foregoing: "What ought to be of record must be proved by record and by the right record." Chap. X post. See Mandatory Eecord, 4 Gr. & Eud.; Bill of Exceptions (Stat- utory Eecord), 2 id.; §§ 8.3-123, 1 id.; Sto. Eq. PI., § 10; title Story, 4 Gr. & Eud. 3 4 EQUITY IN PEOCEDUEE Bxpressio unius est exclusio alterius: The express mention of one thing is the exclu- sion of all others. 2 Gr. & Bud. . . ,.,.., Quod db initio non valet intractu temporis non convalescit : A thing invalia 1° tne beginning cannot be made valid by lapse of time. 4 Gr. & Eud. Chap. Till post. - Illustrative cases: :Bushton V. Aspinall, Smith's L.C., 8th ed., L.C. 5, 3 Gr. & Eud. (Omission of a material allegation fatal on general demurrer, or on motion m arrest of judg- ment, or on collateral attacis.) Bushton was coram non judice. The court acquired jurisdiction of no particular subject-matter because none was described. So it is that the Code requires the statement of "a cause of action" or of a ground of defence. If these fail, then the general demurrer at all stages, under some name, searches the entire record and attaches to the first fault. This may be done on collateral attack. S.P., Jackson v. Fesked (1813), 1 M. & S. 234, 105 English Eeprint, 88, also stated and discussed in note 1 Wms. Saunders, 228, 85 Eng. Eeprint, 244-248; also stated and quoted in Stephens' Pleadings, reviewed and discussed in 70 Cent. L.J. 455-460, wherein the importance of these cases, also Dovaston v. Payne and Windsor v. McVeigh, is pointed out in a much needed and very instructive discussion. See also Munday v. Vail, §§ 47, 119 post, also in the Text-index post. V. S. V. CruHeshank, 92 IT. S. 542, L.C. 232, 3 Gr. & Eud. (A criminal case, same point as MusMon, supra, also K. v. Wheatley, L.C. 19, 3 Gr. & Eud., et seq.; Quod ab initio.) Campbell v. Farter, 162 IT. S. 478, L.C. 2, 3 Gr. & Eud. (One may demur to his own pleadings, for the first time in the appellate court. S.P., Bushton; U. S. V. Cruikshank.) Green v. Falmer, 15 Calif. 411, 76 Am. Dec. 492, n., L.C. 90, 3 Gr. & Eud. (Code). S.P., Bushton; V. S. v. Cruikshank; Mdllinckrodi (Mo.), L.C. 12a, 3 Gr. & End.; Andrews v. Lynch, 27 Mo. 167 {Quod ah initio) ; S. v. Muench (1909), 217 Mo. 124, 129 Am. St. 536-547 (pleadings essential to confer jurisdiction) ; Swing, 178 Ark. 246, 115 Am. St. 38; Jones v. Monson, 137 "Wis. 478, 129 Am. St. 1082-1129 (assumes the Code made a new rule) ; Davis, 126 Mo. 69, 78, § 45-8 post. Johnson v. Vickers, 139 Wis. 149, 131 Am. St. 1046. The trilogy of procedure, its cognate maxims and illustrative cases may be called the trilogies and cases of strict construction, for the reason that they illustrate the fact that they originate from conceptions of protection in the operation of judicial power. They are maxims of the prescriptive constitution; they are the beacon lights of antiquity, and are protected by the divine injunction, "Remove not the ancient landmarks which thy fathers have set." They illustrate that the study of procedure is the study of government; that the peremptory mandates of the state — the government — as a silent third party must be respected to secure the coram judice proceeding; that the judg- ment — the contract of record — established in disregard of the requirements of this silent third party, will be overwhelmed whenever it is called in question, upon the principle that two cannot contract nor consent away the interests and rights of a third. The substantive rights of all parties must be respected- DATUM POSTS OP JUEISPKUDENCE 5 Mes ittter alios acta alteri nocere non debet (A transaction between two ought not to affect a third) ; Non hcec in fcedera veni (I did not come into this compact). The state stands upon and applies the latter maxim. The rights of the state as a silent third party are vindicated upon the principle expressed in Quod ab initio, supra. The procedure of the parties must not impinge upon the rights of the state. The substantive rights of the state must be respected. Alterum non Icedere. The substantive rights of the state cannot be waived. § 2. From the Above Trilogy Issue and Radiate Numberless Rules of EviDEisrcE, Pleading and Practice. — A mastery of these rules depends upon a comprehensive view of the orient peaks of jurisprudence. It is from these peaks that the state reckons its equities — its rights. It is the right of the state — government — that requires that the record, the pleadings upon which a judg- ment is founded, be good in substance. It is this substance shown from the right record that is necessary to resist objec- tions upon collateral attack. It is this substance that is discussed in arguments of the general demurrer, the motion in arrest, non obstante veredicto, orders of repleader and collateral attack, and in pleas of res adjudicata. All of these matters are cognates. § 3. "De Non Apparentibus" Is Well Illustrated by Rushton AND Its Cognates. — This maxim enters into all branches of pro- cedure, and particularly the leading rule of evidence, "What ought to be of record must be proved by record and by the right record." See Oral Evidence, 4 Gr. & Eud. The rules and maxims of Res adjudicata and other conserving principles of procedure involve this maxtm.^ §4. "Fnistra Probatur" Is a Leading Rule of Evidence. Allegata et probata must correspond. Bristoiv v. Wright.''' § 5. "Verba Fortius" Is a Universal Rule of Construction. — It is also classed as a rule of pleading in all systems. And so, indeed, are all the maxims and cognates of the trilogy of proce- dure. This maxim is well illustrated in Dovaston v. Payne.^ It is extendedly discussed in Hughes' Grounds and Rudiments of Law.* 1 — §§83-123, 1 Gr. & Eud.; see Collateral Attack, 2 id. 2 — Smith's L.C., 8th ed., L.C. 135, 3 Gr. & Bud., et seq. 3— Smith's L.C., 8th ed., L.C. 217, 3 Gr. & Eud.; U. S. v. Linn, 1 How. 104. 4— Vol. 4. 6 EQUITY IX PEOCEDUBE § 6. Universality of the Trilogy of Procedure.— They can be picked from Paul's trial in the Acts of the Apostles; also from a truly great and instructive passage, namely, §10, Story's Equity Pleading (§ 47, post). In varied expressions the maxims of this trilogy are discoverable in the Eoman, Norman, English, federal and best state decisions. All systems incorporate them. They are strictly respected in criminal and in equity procedure ; federal cases almost uniformly sustain them with great strict- ness; codes reafiSrm them in varied language.*^ This trilogy is discoverable throughout evidence, pleading, practice, appellate procedure, res adjudicata and other conserving principles, also in the canons of construction. § 7. Necessity Calls for a Record.— From the necessity of operating the judicial department with certainty, and of respect- ing the division of state power, the requirements of ' ' due process of law, ' ' constructive notice, res adjudicata, appellate procedure and other conserving principles, there must be a record and it must be certain. Herefrom arises the necessity for stating a "cause of action" or of a defence.^ § 8. Protection Requires Pleadings.— From necessity, essen- tial facts must be stated. From the above views this definition of pleadings is offered : "Pleadings are the juridical means of investing a court with jurisdiction of a subject-matter to adjudicate it." §§ 169, 273, 1 Gr. & Eud. ; § 10, Sto. Eq. PI.; see title Story, 4 Gr. & Eud.; Becklenberg, 232 111. 120; Thomas v. P 107 111 517, 47 Am. Bep. 458; Doddridge, 222 Mo. 146; Mallinckrodt, 12a, 3 Gr. & Eud. "Pleadings are to limit issues and to narrow proofs.'' § 9. A Constitutionalism Requires a Record.— The philoso- phy of pleadings must be perceived from the basic lines of the trilogy of procedure and its conserving principles. From these orient peaks all must be surveyed, arranged and mastered. The mandatory record must be comprehended and perceived to be the separating line between a constitutionalism and an abso- lutism.'^ 4a— See Codes, 2 Gr. & Eud., and cases there cited. 5— §§ 83-123, 1 Gr. & Eud. 6— §138, Bliss Code PI.; Crockett v. Lee, 7 Wheat. 59o. See Admissions- Vail L.C. 79 xd.; Sachev Wallace, 4 td.; Kenealy v. Glos, 241 111. 15, 22-23. VpiaW ^^^T^^l^^f ^',^^^ ^^- ^.2*' ^29 Am. St. 5.S5; cases; Windso; v. Mc- l\7lm^si'56'lf W^srn"'(19l9ri"MTl3^' ''°- '"' ^'^^""^y- '^' ^^ '''' --' DATUM POSTS OF JUEISPEUDENCE 7 § 10. The Prescriptive Constitution Is the Bulwark of All Opb Eights and Liberties. — The trilogies of the six leading subjects of the law are the chief principles of the unwritten constitution. Greater principles than these cannot be pointed out in written charters and constitutions. These trilogies are the higher law ; they are the substantive law. These datum posts are beacon lights which show and light the way. This will be well impressed from a consideration of the trilogy of equity, which next follows. § 11. The Trilogy of Equity Is : 1. Juris prcBcepta sunt hcec: Soneste vivere, alterum non Xcedere, suum cuique tribuere: These are the precepts of the law: To live honestly, to injure no one, and to render to every man his due. 2. Z76t jus ihi remedium : Tliere is no vrrong without a remedy. 3. Begula pro lege si deficit lex : Where the law is deficient the maxim rules. The equity of the twentieth century must be placed on a broader foundation than was the equity of the Renaissance. The heart and vitals of the law today are the principles of equity. These principles have come to pervade all the leading subjects of the law. The equity of the twentieth century is the restoration of the Civil Law of Eome. This was long delayed by the Eeformation, Coke's opposition to Bacon, the English revolutions, the opposition to Mansfield, the Anglo- American wars, states' rights discussions, the disturbances over negro slavery, the introduction of codes of procedure and the experiments with the case system. The foregoing causes have tended to obscure the real position of equity in Anglo-American law. It has not been made clear that equity is related to all branches of the law; that from Juris prcecepta can be picked Alterum non Icedere (We should injure no one) ; that if parties proceed in disregard of the rights — the equities — the interests of the state — in the establishment of a judgment, to this judg- ment the state may afterward say, Non hcBc in fcedera veni (I did not come into this compact). The substantive rights of the state must be respected. The province of In pari delicto potior est conditio defendentis, and of Quod ah initio non valet intractu temporis non convalescit should be considered in this connection. By the application of these maxims the interests of the state are safeguarded. In pari delicto is widely discussed both in contract and in equity. From these views appears how the 8 EQUITY IX PEOCEDUEE trilogy of procedure and its cognate rules enter into the dis- cussions of equity ; the relation of procedure and equity is also' suggested by the maxim Ubi jus ibi remedium, also Regula pro lege si deficit lex. This maxim is also inseparable from canons of construction, and particularly Expressio eorum quce tacite insunt nihil operatur (The expression of those things which are tacitly imphed is of no effect), also Lex non exacte definite sed arbitrio honi viri permittit (The law does not define exactly, but trusts in the judgment of a good man). Alterum non Icedere is widely cited in the law of crime and in tort. It is allied to Sic utere tuo ut alienum non Icedas (So use your own as not to injure another's). Juris prcecepta, etc., is a principle widely applied in contract, especially in relation to the consideration and liability therefor by implication — by implied or quasi contract. Herefrom will appear the relationship of equity to procedure, contract, crime, tort and construction. Agreeably to these views it is not too much to say that the equity of the twentieth century pervades all branches of the law. It is the basis of the estoppels.^ From Alterum non Icedere, Allegans contraria non est audiendus (He who alleges contra- dictory things is not to be heard), clearly appears as a cognate. It has long been said that from Juris prcecepta the law could be unfolded.®^ Confirming this view from of old, we offer the trilogy of equity and its relation to the subjects mentioned. And thus we introduce to the student the greatest maxim of juris- prudence. Juris prcEcepta is to the Law what the Golden Eule is to Eeligion. In this relation it seems well to introduce also Idem agens et patiens esse non potest (One cannot at the same time be the actor and the one acted upon). This maxim and its cognates have a wide application in various branches of the law. 2 Gr. & Eud. That no one shall be judge of his own dispute is a part of Idem agens. This is a principle above written constitutions and acts of Parliament.^ There are cognate principles of the maxims of equity which overtopple written constitutions and acts of Parliaments. To illustrate : To prevent fraud and usurpation, constitutions and S— Horn v. Cole, 2 Gr. & Eud. Pa— 1 Bl. Com. 40. 9— Dimes, L.C. 176, 3 Gr. & Eud. ; Oakley, L.C. 222, id. DATUM POSTS OF JUBISPEUDEA'CE 9 statutes yield." For the repression of fraud there are principles of the prescriptive constitution, which overrides written consti- tutions.^^ From these views appears the paramount importance of equity, which in the Roman law constituted the heart and vitals of the prescriptive constitution.'^ § 12. Equity's Trilogy Has Many Cognates.— Among these may be included the auxiliary maxims which Coke named for the operation of the jurisdiction of equity.^^ The maxims accepted for the equity of the Renaissance period are but parts of the great broad principles of the Roman law, which constitute the prescriptive constitution. Among these are the maxims already cited; also Nullus commodum capere potest de injuria sua propria (No one can take advantage of his own wrong) ; Volenti nan fit injuria (One who invites or consents to his own injury cannot complain of it) ; Allegans contraria non est audien- dus (He who alleges contradictory things shall not be heard) . This last maxim is closely allied to Consensus tollit errorem (He who consents to or invites error shall not complain of it). But it is important to bear in mind that the operation of this maxim, Consensus tollit errorem, is confined to those matters which concern only the two parties named upon the record; it does not extend to or affect the state or third persons ; for two cannot waive or contract so as to affect a third. Res inter alios acta, or, in other words. Res inter alios judicatcB nullum aliis prceju- dicium (Matters adjudged in a cause do not prejudice those who were not parties to it). Empiricists have attempted to substitute these last maxims and their cognates for the trilogy of proce- dure. In the consequent confusion of ideas can be found the basis of the theory of the case, as advocated by extremists in many quarters." § 12a. Ex Doto Malo Non Oritur Actio (A right of action cannot arise out of fraud) may be said to be a maxim of equity. Coke conceded that equity had jurisdiction of fraud, accident and mistake. Consequently the maxims of these subjects are 10 — 8. ex rel. Henson v. Sheppard, 4 Gr. & Eud.; Mx dolo malo non oritur actio (A right of action cannot arise out of fraud). Cape G. E. E., 222 Mo. 461, 485, 487, §§ 444-447, post. 11— See Chapter 3, 1 Gr. & Eud. 12— See Chaps. 3 and 5, 1 Gr. & Eud. 13—159, 1 Sto. Eq.; title Equity, 2 Gr. & Eud. 14 — See Theory of the Case, also Variance, 4 Gr. & Eud. 10 EQUITY IN PEOCEDUEE involved throughout equity jurisprudence. See these titles in Grounds and Eudiments. From these facts will appear how equity has grown, and has come to pervade all branches of the law. From this standpoint is invited the view that the trilogies of the six leading subjects of the law are but parts of the trilogy of equity. From this viewpoint it may be asked if the equity of the twentieth century is not the restoration of the Eoman Civil Law in the western hemisphere. Examine Story's, Pomeroy's and Bispham's works on equity, and it will be apparent that the maxims of trust and confidence are most widely and thoroughly discussed. One of these is Idem agens et patiens esse non potest. It is truly a great maxim of equity, as we shall demonstrate in the concluding chapter of this work; and likewise Ignorantia legis neminem ecccusat, ignorantia facti excusat, can be shown to lie at the base of the extended discussions of mistake. Ex dolo mala, supra, lies at the base of fraud. Now, is it not apparent that equity is a broader subject than Coke perceived? § 13. The Trilogy of Contract: 1. Non JiCBC in foedera veni: I did not come into this compact. In other words, assent, mutuality, is essential for a contract. Lampleigh v. Brathwait, Smith's Leading Cases, L.C. 301, 3 Gr. & Bud.; Bartholomew v. Jackson, L.C. 302 id.; Cutter, L.C. 308 id.; Boston Ice Co., L.C. 320 id.; Smout v. Ilberry, 4 id.; Cook v. Oxley, L.C. 321, 3 id., et seq. Expressio unius est exclusio alterius is a part of this maxim. These maxims can be picked out of Walker, 28 111. 378, 81 Am. Dee. 287; also Compton, 69 111. 354. A contract of two whereby a third gets benefits does not make the latter liable. Walker, Compton, supra; Ses inter alios. 2. Ex nudo pacta non oritur actio: No cause of action arises from a mere or bare promise. L.C. 301-333, 3 Gr. & Bud. See authorities supra. Cumber v. Wane Smith's Leading Cases, L.C. 311, 3 Gr. & Bud.; Eann v. Hughes, L.C. 312 id. ' 3. In pari delicto potior est conditio defendentis : Where both parties are equally in fault, the position of the defendant is preferred. Holman v. Johnson L C 363, 3 Gr. & Bud.; Trist v. Child, 21 Wall. (TJ. S.) 441, L. C. 214, 3 Gr. & Bud! Secondary Maxims of Contract: Caveat emptor: Let the purchaser beware. 2 Gr. & Bud. B. v. Wheatlev L C 19 3 Gr. & Bud.; Chandelor v. Lopus, L.C. 374 id., et seq.; Schuchardt v ' Allen 1 Wall. 359, cited 212 XJ. S. 449; Laidlaw v. Organ, 2 Wheat. 178 Barnard v Kellogg, 10 Wall. 388; Judd, 215 Mo. 312, cases; Schwartz, 25 Mo '675 Simplex aimmendatio non ohligat : Simple commendation creates no obliffation Chandelor, L.C. 374, Fasley v. Freeman, L.C. 375, 3 Gr & Bud ""g-^i^io"- Vigilantibus et non dormientibus jura subveniunt : The laws serve the vigilant and not those who sleep over their rights. 4 Gr. & Bud. Phases of this maxim found applications of estoppel. § 6674 Code X. D.; Williams v. Stall, 4 Gr& Bud ""'':^rto:T^:.:fi:$?:^^::^^ of Ms own injury shoma not eSain DATUM POSTS OF JUEISPEUDENCE 11 Smout V. Ilberry, 4 id.; Boston Ice Co. v. Potter, L.C. 320, 3 id. ISx turpi causa non oritur actio: No cause of action arises from illegality. When one of two equally innocent persons must suffer from the wrong of a third, he who first trusted must first suffer. Lickbarrow v. Mason, L.C. 394, 3 Gr. & Eud. Crimen omnia ex se nata vitiat: Crime vitiates everything that springs from it; or no right springs from a felony. A thief can give no title. Ex dolo mala non oritur actio (2 Gr. & Eud.). Nemo dat quod non habet: One cannot give what he does not own. 2d quod nostrum est sine facto nostra ad alium transferri non potest: What belongs to us cannot be transferred to another without our consent. 2 Gr. & Eud. Ses inter alios acta alteri nocere non debet: A transaction between two cannot operate to the disadvantage of a third. Two cannot contract to bind a third. "Walker, 28 111. 378 ; Compton, 69 111. 354 ; 4 Gr. & Eud. Jus publicum privatorum pactis mutari non potest: A public right cannot be changed by agreement of private parties. 2 Gr. & Eud. Pacta privata juri publico derogare non possunt (Private contracts cannot derogate from the public law) ; Pactis privatorum juri publico non derogatur. . L.C. 358, 373, 3 Gr. & Eud. Definition of Contract.— A contract is a mutual agreement, between competent parties, upon a sufficient consideration, relat- ing to a lawful subject matter expressed with certainty and satisfying the requirements of the statute of frauds.^^ § 13a. Immutable Elements of Contract.— When it appears from a transaction that there is assent, a consideration and legality of subject-matter, then such transaction is an obligation in natural law, and as such passes within the protection of the prescriptive constitution. Within this, it is protected by such rules as this, namely, "Statutes in derogation of the common law are strictly construed." The right from such an obligation is a substantive right, and as such is above the arbitrary edicts of government and its agencies. However, it is conceded that statutes may provide how a contract shall be proved in case it is denied. Thus the operation of the Statute of Frauds is conceded. But the cases show that these statutes are set aside and dis- regarded if they are used to harbor fraud. This is well illus- trated in the equitable exceptions to the Statute of Frauds. Agreeable to these views is the construction of contracts not to be performed in a year, as discussed and applied in a widely cited case, Peter v. Compton; likewise, when a foreign corpora- tion has failed to file preliminary papers before making a con- tract ; in such case, if the papers are filed before suit is brought this is on principle sufficient, however peremptory the legislative command that such a contract is void. The policy of the law is to protect every right having a standing within the prescrip- tive constitution (§24 post). This view is consistent with the 15— § 380, 1 Gr. & Bud.; § L.C. 301-417, 3 Gr. & Eud. 12 EQUITY IX PEOCEDUEE maxim, Vt res magis valeat quam pereat, of which extended mention is made hereafter (§ 293). § 14. Agency Has Its Trilogy: 1. Qui per alium facit per seipsum facere videtur: He who does anything through another is considered as doing it himself. 2. Bespondcat superior: Let the superior respond, or, let the principal answer. This maxim is widely .ipplied in tort {McManus v. Crichett, i Gr. & Kud.) ; also in equity. 3. Qui xentit commodum sentire delet et oniis: He who derives the benefit ought. also to stand the bur — Notice to the agent is notice to the principal.^" Authority inferred from acts and conduct.^^ Government as an agency often involves discussions of public policy, a part of which is embraced in the maxims: Rex non potest peccare (The king — state — can do no wrong), and Nullum tempus occurrit regi (Lapse of time will not run against the crown). The maxims are found in Volume Four, Grounds and Eudiments of Law, in relation to cases illustrating their appli- cation. § 20. The Trilogy of Crime Is: 1. Ignorantia legis neminem cxcusat; ignorantia fo.cti excusat : Ignorance of law excuses no one; ignorance of fact will excuse. Levett's Case, 4 Gr. & Eud.; B. V. Esop, id.; case 195, 3 Gr. & Eud. 24 Qui sentit, etc., supra; McManus v. Crictett; Squib Case; Swift v. Tyson; Yonng V. Grote, all in 4 Gr. & Eud.; Lickbarrow v. Mason, L.C. 394, 3 Gr. & Eud. 25 Caveat emptor, 2 Gr. & Eud. 26 Joint Trespassers, 2 Gr. & Eud. 27 B. V. Almon, 4 Gr. & Eud. 28 See cases under title Tort, 4 Gr. & Eud.; Joint Trespassers, 2 id.; Vos- bnrsh v. Moak, 4 id.; also Tort, post. 29— Sturdivant v. Hull, L.C. 410, 3 Gr. & Eud.; Angle v. E. E. (right to fill blanks in commercial paper). 30 Koss V. Houston, 4 Gr. & Eud. 3j See AUegans eontraria non est audiendus (He who alleges contrary things shall not be heard), 2 Gr. & Eud. General and special agents. Batty v. Carswell, 2 Gr. & Bud. 14 EQUITY m PEOCEDUEE 2. Actus non facit reum, nisi mens sit tea: Act and intent must concur to constitute crime. See Intent, 2 Gr. & Bud.; McNaughten's case: 195, 3 Gr. & Bud., U. S. V. Drew, 4 id. 3. Qui primum peecat ille facit rixam: He who is guilty of the first offense is liable for the whole strife. C. u. Self ridge, 2 Gr. & Bud.; Squib case, 4 id. Cognate Maxims: 1. Solus populi suprema lex: That regard be had for the public welfare is the highest law ; or, in other words, crimes and their punishment are prescribed by the state in its scheme of education, protection and the advancement of morals. The crown or state as to many matters disregards the gambler 's motto : "Never mind what happens as long as it doesn't happen to you." The great truth involved was well expressed by the poet: "He is true to God who's true to man; Whatever wrong is done To the humblest and the wealtest 'Neath the all-beholding sun, That wrong is also done to us : And they are slaves most base Whose love of risht is for themselves And not for all the race." 2. Alterum non Icedere: We should injure no one. This is a part of the greatest maxim of the law, which belongs to the trilogy of equity jurisprudence, and which is. Juris prwcepta sunt hcec: Honeste vivere, alterum non Iwdere, suum cuique tribuere. 3. Necessitas inducit privilegium quoad jura privata: Necessity excuses one acting under its influence. See Necessity, 4 Gr. & Bud.; Self -Defense, id.; TJ. S. v. Holmes, id.; see Coercion, 2 Gr. & Eud. 4. Summa ratio est qua: pro religione facit: "Where the laws of God and of man come in conflict the former is preferred. In prcesentia majoris cessat potentia minoris: In the presence of the major the power of the minor ceases Church of the Holy Trinity v. U. S., 2 Gr. & Bud.; ;Sf. ex rel. Henson v. Sheppard fMo ) 4 Gr. & Bud.; Eeech v. Sandford, 2 id.; S. v. Bolden, L.C. 916 3 id 5. Actus dei nemini facit injuriam: An act of God shall be so construed as to injure no one. See Actus dei, etc., also Accidents, 2 Gr. & Bud. An accident is no ground for civil or criminal liability; but it must be unmixed vpith negUeenee fraud or intent. See Negligence, 4 Gr. & Bud. e s ^ > 6. Injure non remote causa sed proxima spectator: In law the immediate and not the remote cause of any event is regarded. This maxim involves discussions of tacking and collateral intent. C. v. Moore, 2 Gr. & Bud • Selfridnp's rnZ tC the '-Squil'' Case, 4 Gr. & Bud.; see In jure, etc., 2 Gr ABud^rS'. P '4^ ?. Inpar^del^cto potior est conditio defendentis: In equal fault the position of the defendant IS preferred This maxim is related to Alterum non IwTerT ll procedure It is also related to Quod ah initio non valet intractu temporis nol convalesat (That which was void in the beginning cannot become vaM by lapse ^nd Tf t°T T"'^- /" ^r '' " "''^™ "* ^'l^^y- °f Procedurerof contect 4n-:tr;^oyrLrete^^^^^^ points of the transactions of men from varrina P,wrlJ= 7 wrong)— are view- populi suprema lex. . Qui primum recc7 illTfa^Ht S' .l^r^ '"' "'"" ^"'"* 8. One ts presumed to mtend the natural dirert nn^ t,r^^i'Ai act is another form of expressing Q^i SL 1^ •?^^%''°r^««''«^^ °^ '"'* of these maxims are illustrated by the Sa^TcateVj ^""'t/f °™- Phases ^Gr. & Bud. See also C. v. MooreJ ni^ C.V Se^fZa^% %'"' "^^^ therewith, 4 9. Ses tpsa loquitur: The thing speaks for itself Ti,;, i«", . ^ last above quoted See System, 4 Gr & Bud a^so P « °^'7*' "^ ^^^ "^^^ maxim is applicable in many relations and annlipff^ ^ohneux, %d. This is extendedly applied in equ^, and es^eL^^r tt SmToX" proofs r'e^ DATUM POSTS OF JURISPRUDENCE 15 quired in the equitable exceptions to the statute of frauds. Lester v. Foxcroft, L.C. 341, 3 Gr. & Kud. 10. Nemo tenetur seipsum accusare: Iv'o man can be compelled to incriminate him- self. 4 Gr. & Bud.; Counselman v. Hitchcock, L.C. 178, 3 id., cases cited. 11. Nemo debet its vexari pro una et eadem causa: No one ought to be vexed twice for one and the same cause. U. S. v. Perez, L.C. 69, 3 Gr. & Eud. 12. Quod lex non vetat permittit: What the law does not forbid it permits. Colder V. Bull, L.C. 237, 3 Gr. & Eud.; § 163, 1 id. 13. Volenti non fit injuria: He who consents to his injury cannot complain of it. See S. V. Beck, 4 Or. & Eud. This maxim is widely applied in tort. See 4 Gr. & Eud. It is also applied in procedure as to those matters which do not concern a third party or the state. See Consensus tollit errorem. 14. Nemo prcesumitur malus: No one is presumed evil. One is presumed innocent until he is (1) alleged guilty and (2) proven guilty. Coffin v. tj. S., 2 Gr. & Eud. This maxim involves phases of the trilogy of procedure. No one is presumed a trespasser, is applied in equity. Lester v. Foxcroft, L.C. 341, 3 Gr. & Bud. § 21. Definition of Crime.— "A crime is defined to be an act of omission or commission in violation of a public law com- manding or forbidding it."^- This is the definition of a tort if only the word "public" is omitted. The above maxims underlie the criminal law quite as much as the maxims of equity underlie the development of this sub- ject. Accordingly, crime may be introduced and discussed from its maxims as well as may equity. The above maxims will be found in the Grounds and Eudi- ments of Law.*^ The maxims will be found in their alliterated places in volumes two and four, and in relation to them illustra- tive cases are cited. Many of these cases are found under C. (Commonwealth cases) ; P. (People cases) ; E. (Eegina and Eex — Queen and King — cases) ; S. (State cases) ; U. S. (United States cases). Cases with other titles will be cited in connection with the above cases. § 22. The Trilogy of Tort: 1. Alterum non Icedere: We should injure no one. See Juris prwcepta, etc., 2 Gr. & Eud. 2. Volenti non fit injuria : He who assents to his own injury should not complain of it. Vavies v. Mann, 2 Gr. & Eud.; see Volenti, 4 Gr. & Eud. The negligence or deliction of one cannot be charged to another. 3. In jure non remota causa sed proximo spectatur: In law the immediate and not the remote cause of any event is regarded. Squil) Case, 4 Gr. & Eud.; Gilson v. Delaware Canal Co., 36 Am. St. 802-861, ext. n.; 2 Gr. & Eud. Cognates of this trilogy are: 1. Sic utere tuo ut alienum non Icedas: So use you own as not to injure another. See Nuisance, Trespass, Torts, 4 Gr. & Eud.; Fletcher v. Bylands, 2 id.; Vbi jus 32— § 291, 1 Gr. & Eud. 33— See §§ 291-293, 1 id. IG EQUITY IN PEOCEDUEE ibi remedium, 4 id.; St. Helen's Smelting Co. v. Tipping, 4 id.; Squib Case; Vosburgh v. Moak, id. . „ i. n _ aj. \,„ £ Niillus commodum capere potest de injuria sua propria: ?«o one should pToit by his own «rong. 4 Gr. & Bud. One cannot be the author of his own injury and eharae this to another. "One is not bis brother's keeper" m all relations. 3. In pari delicto potior est conditio defendentis: In equal fault the position ot the- def endant is preferred. 2 Gr. & Eud. _ ^ » » i o r. 4. Ex dolo malo non oritur actio : No cause of action can arise out o± traud. Z Lrr. & Kud. , ^, .:,.., 5. One is presumed to intend the natural, direct and probable consequences of Ms act. Squib Case; Qui sentit commodum; Vosburgh v. Moalc, 4 Gr. & Eud. Intent is no element in tort as it is in crime. Pasley v. Freeman, L.C. 375, 8 Gi. & Eud.; see Joint Trespassers, Defamation, Conspiracy, 2 id. An infant is liable for his torts; likewise an insane person. 6. Actio personalis moritur cum, persona: A personal right of action dies with the person. 2 Gr. & Eud.; see Negligence, 4 id. § 23. Definition of Tort: A tort is an act of omission or commission in violation of a law commanding or forbidding it.^* If we add the word "public" before the word "law," supra, then we have the definition of a crime.^^ § 24. Construction a Universal Subject.— Construction is closely related to all subjects of the law, and all its branches depend upon construction. The trilogies of procedure and equity will often appear as principles of construction. This fact, arises from the inherent nature of a subject and the principles which govern it. To illustrate : The plain language used by the parties will be given effect if possible. But if a grantor in a deed bor- rowed money and to secure this loan gave an absolute deed of conveyance, and conveyed the equity of redemption expressly, nevertheless, the transaction would be declared a mortgage, upon the principle, "Once a mortgage, always a mortgage"; to prove this, oral evidence would be admissible, notwithstanding the rule that oral contemporaneous evidence is inadmissible to alter or vary a writing.'** The unwritten law overrides the statutes. Further, an oral contract to purchase will be enforced against the plain language of the statute of frauds, where the grantee took and entered upon possession of the land under and in pursuance of an oral agreement, and so held possession noto- riously, exclusively and unequivocally, and made lasting and valuable improvements thereon. Such possession, together with such acts, speaks for itself. Res ipsa loquitur. Upon proof of Eud^*"^''^'' '■ ^™™^''^'" '^^*«'" ^°''^^' 2 Gr. & Bud.; see Negligence, 4 Gr. & IIzL'^t' r %-^n'^fr'- TJ'f'' T'^^A^^'' ^ ^"^- *°^ ""^^^ -"^ cases. 36— See L.C. 51-60, 3 Gr. & Eud.; also Oral Evidence, 4 id.; § 13 ante. DATUM POSTS OF JUEISPEUDENCB 17 these, then, a court will inquire after the contract made by the parties, in the face of the statute of frauds, and by this means will vindicate two principles of the prescriptive constitution, (1) Nullus commodum capere potest de injuria sua propria (No man shall take advantage of his own wrong) ; (2) Ex dolo mala nan oritur actio (Fraud vitiates all into which it enters). These maxims are enforced as constitutional principles ; statutes as well as written constitutions must give way before them.^'^ Herefrom appear the trilogy of equity and many of its cognates; also the influence of equity upon contract, evidence and construction; also the fact that construction is a mesh of principles which appear as correlatives, reciprocals, interactions and in parallel. In equity or in the maxims of the civil law lie the dominating principles of the six leading subjects of the law. These principles are above constitutions and statutes. The able constructionist must know the trilogies of these subjects, and always speak from them and their policies. Judicial records must be read and construed in the light of the trilogies of proce- dure. All documents must be read and construed in the light of the canons of the prescriptive constitution; in them lie em- bedded the principles of construction. This fact can be indicated only by the principles here introduced. Upon construction depend the harmony and symmetry of the law. This is well illustrated in the result of pernicious construction of the codes and practice acts in American states. See Theory of the Case, also Variance, 4 Gr. & Eud. § 25. A Trilogy of Rules of Certainty in Construction: 1. In prcBsentia majoris cessat potentia minoris: In the presence of the major the power of the minor ceases. See Salvs populi suprema lex; Necessitas inducit privilegium quoad jura privata; ISIecessity, 4 Gr. & Eud.; Summa ratio est qum pro rehgione facit (Where the laws of God and of man come in eoniliot, the former shall be preferred) ; Cessante ratione legis cessat ipsa lex (When the reason for the rule ceases, so does the rule itself. Eeason is the soul of the law; Verha intentione debent inservire (Words must yield to the intention); Concordare leges legihus est optimus interpretandi modus (To make laws agree with laws is the best method of interpreting them). 2. Contra scriptum testimonium non scriptum testimonium non fertur (Against written testimony unwritten testimony shall not be brought; or in other words, Oral contemporaneous testimony is inadmissible to alter or vary a writing). § 53, 1 Gr. & Eud.; 1 Gr. Ev. 275; L.C. 51-60, 3 Gr. & Eud. "What ought to be of record must be proved by record and by the right record." Chap. V, 1 Gr. & Eud.; Chap. X post. See Trilogy of Procedure, ante. 37 — Oakley v. Aspinwall, L.C. 222, 3 Gr. & Eud.; Lester v. Foxcroft, L.C. 341, id. (Equitable exceptions to the statute of frauds). 18 EQUITY m PEOCEDUEE Expressio unius est exdusio alterius (The express mention of one thing implies the exclusion of all others). 2 Gr. & End. 3. Segula pro lege si deficit lex (Where the law or the compact is deficient the maxim rules; or, in other words, where the contract is silent as to provisions the /aw will supply them as incidents or implications). § 26. A Trilogy of Liberal Construction: 1. Lex non exacte definit sed arbitrio ioni viri permittit (There is always something- left for the judgment of a good and wise man). 2. Expressio eornm qum tacite insunt nihil operatur (Things implied need not be mentioned). M'Culloch v. Maryland, L.C. 147, 3 Gr. & Eud. 3. XJt res magis valeat quam pereat (It is better to conserve than to destroy. Chap. XIY post). See Trilogy of Procedure. Cognate Maxims: Contemporanea expositio est optima et fortissima in lege: The best and surest mode of expounding an instrument is by referring it to the time and the circumstances under which it was made. To illustrate, if an absolute deed is given to secure the payment of money, such deed will be construed a mortgage agreeably to the rule, "Once a mortgage always a mortgage." See Oral Evi- dence; also Equitable Exceptions to the Statute of Fiauds; Lester v. Foxcroft, L.C. 341, 3 Gr. & End.; also Bauerman v. Radenius, L.C. 58, id.; § 668' Code N. Dak. ; Patterson, 25 Mo. 13 ; 2 Gr. & Eud. ; Gorder, 83 Neb. 204, 131 Am St 629, n. (Practical Construction.) Verha intentione dehent inservire: Words are limited by the manifest intention 4 Gr. & Eud. ; Church of the Holy Trinity v. TJ. S., 2 Gr. & Eud. CHAPTER n (§§ 27-40) EQUITY AND ITS PAEAMOUNT PRINCIPLES Juris prwccpta sunt h(BC : honeste vivere; alteruni non Iwdere; suum cuique tribuere. OUTLINE CONSIDERATION; DEFINITION; MAXIMS §27. Equity Defined.— Equity, in Anglo-American law, is that part of the Civil Law of Rome that was imported during the Renaissance to supply the defects of the Feudal law. Equity was not an individualized branch of the law in Rome, whence it was transplanted. In its home, it rested upon the trilogy of maxims, and their cognates. The first maxim of this trilogy was : 1. Juris prtEcepta sunt Juec: Honeste vivere; alterum non Icedere; suum cuique tri- huere: These are the precepts of the law: we shoulcl live honestly; injure no one, and render unto every one his due.ss This maxim may justly be called the lawyer's Golden Bnle. The two remaining maxims of the trilogy are : 2. TJii jus ibi remedium: There is no wrong without a remedy.39 3. Begula pro lege si deficit lex: Where the law is deficient, the maxim rules.*o As we shall see, this trilogy has many parts, or cognate maxims; these maxims, also, are the roots of jurisprudence, giving life, force and usefulness to the trunk, limbs, branches, twigs, stems, leaves and buds of the entire plant. Marshall informs us, in Marbury v. Madison: 142,*' that Ubi jus is the cornerstone of government. Glints of these maxims are per- ceivable in the preambles to constitutions, and ramifying bills of rights ; extending here and limiting there the words of Great .Guarantees. To illustrate: Every agency of government is 38 — This maxim is from Justinian. It is on the title page of Broom 's Maxims ; ■ it is commended by Blackstone, who had heard that all of the law could be developed from it. 39— Bro. Max. Sth ed., 191-212: Ashby v. White, L.C. 273, 3 Gr. & Bud.; 1 Smith I>.C. 474-535, 8th ed.; 1 Laws N. D., Par. 6670; Laws of Eng. 7-10; Marbury V. Madison, 142, 3 Gr. & End.; 1 Story Eq., 684a; 1 Fonb. Eq., B. 1 eh. 3 | 3; Bisph. Eq. 37; 1 Pom. Eq. 423-424. 40— Vol. 4, Gr. & Eud. 967. 41 — Cases cited thus are found in vol. 3, Gr. & Eud (Datum Posts). 19 20 EQUITY IN PEOCEDTIRE obligated to extend to every one "due process of law" in the spirit and in the light of these maxims. We can see the prescriptive constitution in another axiom, namely : Idem agens et patiens esse non potest : jSTo one can at the same time be the actor and the thing acted on; or, in other words: No one can act where his integrity and interests are in conflict ;42 or as expressed for judicial oflScers: Nemo deiet esse judex in propria sna causa: No one should he judge of his own cause. *3 As thus expressed, it is protected as an essential principle of the prescriptive constitution. "Parliament is omnipotent," but it cannot make one a judge of his own cause.*^ Alterum non Icedere is a part of the lawyer's Golden Kule, already introduced. This commands that we injure no one, and that we render to every one his due. That "No one shall act where his integrity and his interest are in conflict" harmonizes w^ith the maxim in the Sermon on the Mount, "Ye cannot serve Ood and Mammon"; also with the supplication in the Lord's Prayer, "Lead us not into temptation."*^ It is well to note that great principles of the law interweave with all its branches. To impress this fact, it must be demon- strated that there are' immutable principles of jurisprudence that are common to all its parts. This will be illustrated from observations relating to Salus populi suprema lex. § 28. Equity in Anglo-American Law Came from the Roman Civil Law. — Like language and religion, it comes from antiquity and the beyond. The contentions over it during the Eenaissance and ever since make the subject a wilderness of contradictions, which may well be likened to variant views relating to many important subjects of law. From these wrangles we hasten to turn, first observing that such discussions may be compared to the jargons about Shelley's case, the Duchess of Kingston's case, Crepps V. Burden, Cutter v. Powell, Cumber .v. Wane, Hen- drick V. TAndsay, Lawrence v. Fox, the paramountcy of the King at one time and the next of Parliament, and in America the Gr. i"^:^:t^i^i^fz'' ' ^'- ^ ^"'•' ' ^^"*' '''■' ^^=^°"^ - «"-^' ' 43— Dimes v. Proprietors Grand Junction Canal: 176 vol. 3 Gr. & End.- vol. 4 iCiif p. y J. / . "oo 1f7.^T'^lt!^*'°SLl" ^""T^^ y'sl^ to tl>« ""axim. Oakley v. Ast)inwall, L.C. 222, 3 Gr. & Eud.; State ex rel. Fpn'^^n v. Sheppard (Mo V vol 4 Or *• Pud 45-State ex rel. Henson v. Sheppard (Mo.)fvol. 4^ & Bud EQUITY— ITS PARAMOUNT PRINCIPLES 31 supremacy of written constitutions, and next of statutes, "if only they are constitutional," the inquiries after the prescriptive constitution and the true functions of pleadings, also of the mandatory and of the statutory records, of the meaning of "due process of law," of Res ad judicata, collateral attack and cognate subjects, of the immunity of judicial officers for corrupt, mali- cious and abusive exercise of power, of what is "adjective" and what is "substantive law," and of the "theory of the case," and associated matters as these have come to be viewed in several states. The establishment and exercise of equity jurisdiction have been among the most difficult questions through three hundred years. From the fogs, mists and mirages of a long and dreary desert march, the student should now be led. It is time to direct his attention to the mischiefs that have been wrought by mystifying errorists and enterprising publishers. Their loud and persistent clamors have too long led away from true history, from reason and the broad fundamental maxims upon which equity is founded ; indeed, equity rests upon the prescriptive constitution, which has been silted over and hidden in America. Eelating to this, what has happened is not a theory, but a condition that confronts the jurisprudent. Eelating to the mat- ters mentioned can easily be picked supposed legal literature that would fill long rows of cyclopedias, digests and annotated cases. Looking at this matter as it appears, we seek to turn from it as rubbish, but first submitting that this supposed legal literature is an overtoppling bulk that is a menace to juridical studies, and is plainly beyond human capacity. Eome was a great empire and had many provinces, also cycles of time. From these provinces and cycles, no doubt almost anything can be found, exactly as may be from the states of the American Union. For these can be written local and provincial views of "due process of law," also of Res adjudicata, and, let us also add, of equity. From the wilderness referred to, the great trees of the grove can be picked and arranged without regard to the impenetrable undergrowth jungles. § 29. Equity Arises from the Prescriptive Constitution.— It emanates from Solus populi suprema lex: That regard be 22 EQUITY IN PEOCEDFEE had for the public welfare is the highest law ; from Necessitas inducit privilegium quoad jura privata: Necessity privileges whatever is done under its influence ; and Summa ratio est quce pro religione facit: Where the laws of God and of man come in conflict, the former shall be preferred.*® These maxims are fundamental principles ;*^ they are chiefest among the Grounds and Eudiments of Law. They are consistent with the trilogy of equity already mentioned; indeed, all these maxims and their cognates constantly interweave. Alterum non Icedere: That we should injure no one, not even third persons — the public— is a command of public policy ; the public — the state — must be respected in all dealings and transactions among men. The public must not be injured. Salus' populi suprema lex. "That no one shall act where his integrity and his interest are in conflict" is a rule of public policy, and is a part of Idem agens et patiens esse non potest, as already observed. "Where one of two equally innocent persons must suffer from the fraud of a third, he who first trusted must first suf- fer,"*^ is a part of Res inter alios acta alteri nocere non debet: A transaction between two cannot operate to the disadvantage of a third. Qui sentit commodum sentire debet et onus: "The hand that receives the benefit must stand the burthen^"*" is a useful maxim and is often applied in agency and partnership. It well illus- trates that equity respects substance and not form. This equity is perceivable in the applications of Respondeat superior. It includes also the maxim, In fictione juris semper cequitas existit: A legal fiction is always consistent with equity. It is also perceivable in the discussions of the conserving principles of procedure.^" Those cases holding that if the claim- ant under a written document permits it to be materially altered, he can claim nothing under such altered document, are vindicated by this equity.^ ^ § 30. The Mission of Equity.-The Englishman had to be taught that there was a higher law than his King, before his 46— Bro. Max. 1-20. 47— Chap. 3, vol. 1 Gr. & Eud. 48— Lickbarrow v. Mason: 394, vol. 3 Gr. & Bucl.; Swift v. Tyson 4 id 49— Vol. 4 Gr. & Hud.; Bro. Max. 705-712. 50— §§ 83-124, vol. 1 Gr. & Bud. 51 — Master v. Miller: Cases vol. 4 Gr. & Eud. EQUITY— ITS PAEAMOUNT PEINCIPLES 23 revolution could materialize; and afterward, that Parliament was not omnipotent.'^^ This was a hated and most unwelcome lesson, still it had to be learned. Then the Englishman in Amer- ica resolved that his "written constitution" was the supreme law of the land; and that "a statute, however immoral, blas- phemous and unchristian it might be, was the law, unless it was imconstitutional." And the test of this constitutionality was "putting the finger on and thereunder pointing out the exact word or words in the constitution violated." The American has been taught that there is no prescriptive constitution under his form of government, as there is in England. Still he has constantly accepted as exactly proper the treatment of the six leading subjects already mentioned, from the prescriptive con- stitution in England. What was molded from the prescriptive constitution for contract in England, the American has adopted, but nevertheless, as he contends, without the organic base — the prescriptive constitution. And so it is with other branches. He thinks he stands on written constitutions, notwithstanding that his own decisions show that those constitutions rest upon principles lying still deeper. What has resulted in America from erroneous views of con- struction may be judged from the condition of procedure in the various states.^^ Ignorance of the trilogy of procedure has perverted and distorted the Codes of Civil Procedure into a mass of wrangles and absurdities.^* However, in many cases the higher law is recognized and fundamental principles vindi- cated.^' In prcEsentia majoris cessat potentia minoris: In the presence of the major, the power of the minor ceases. § 31. Feudal Conceptions of Equity.— They are well ex- pressed in Coke's and Blackstone's definitions of equity. Bacon was elated at the introduction of equity. Coke opposed it and suffered his greatest humiliation in Bacon's triumph. But Coke soon got control of the British government and was allowed to define the thing he hated most, also to set the boundaries of 52 Dimes: 176, 3 Gr. & Eud.; Stoekdale v. Hansard: 277 id.; Lester v. Fox- croft: 341 id. 53 See Chap. 5, 1 Gr. & Eud.; 34 Am. Bar Assn. Eep. 787. 54 See Codes: vol. 2 Gr. & Bud; Davis, 125 Mo. 69. 55 Church of the Holy Trinity v. U. S., vol. 2, Gr. & Bud.; Oakley v. Aspin- ■wall- 222 3 Gr. & Eud.; State ex rel. Hanson v. Sheppard (Mo.), 4 Gr. & Bud.; Andrews v. Lynch, 27 Mo. 167; Nowack, 133 Mo. 24, 42. 24 EQUITY IX PROCEDUEE its jurisdiction. Of course, these were tortuous, stilted and technical. His definition was not conceived from the orient peaks of jurisprudence — from the great maxims that it rested upon with the Romans, but from a despised and dwarfed inci- dent and mere remedial accessory, limited to "Covin, accident and breach of confidence.""^ How could the transplanted branch develop and grow vigorous and beneficient under such a gardener? For three hundred years, equity has been rocked around on the little and unsubstantial foundation that Coke accorded it; its jurisdiction has rested upon frail, fickle and changeful grounds. These grounds were best expressed in a decalogue of maxims upon which the authors were not agreed.^^ It was not perceived and told that the so>-called "Maxims of equity" were but parts of the great fundamental principles of jurisprudence. Neither Story nor Pomeroy can be said to have acquiesced in the views of Coke or Blackstone as to the province and func- tions of equity. All through the writings of both Story and Pomeroy there are references to maxims and fundamental prin- ciples that govern in the administration of the laws, but they nowhere gather and discuss these fundamentals, except those countenanced by Coke and Blackstone. Story's views are indi- cated by the words next quoted : "Lord Coke has in his summary manner stated that three things are to Ibe iudeed of in the court of conscience or Equity, Covin, Accident and Breach of Confidence ■ or, as we should now say, matters of fraud, accident and trust. Mr Justice Blackstone has also said that courts of equity are established 'to detect latent frauds and concealments, which the process of courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence as are binding m conscience, though not cognizable in a court of law; to deUver from such dangers as are owing to misfortune, or oversight; and to give a more specific relief and more adapted to the circumstances of the case thai can always be obtained by the generality of the rules of the positive or common law.'— S oy, foto. Jijq. "These as general descriptions are well enough, but they are far too loose and in- exact to subserve the purposes of those who seek an accurate knowledge of the actual and supposed boundaries of equity jurisdiction,^ etc., etc."— §60, id/ § 32. Renaissance of the Civil Law.-Open acceptance of the Civil Law began with the Earl of Oxford's case (A. D. 1616) ■ but its progress was greatly hampered by the rise to power of 56—1 Story Eq. 59. 57-1 Story Eq. §§ 59-74; Bisph. Eq. 37-48; 1 Pom. Eq. 363-377. EQUITY— ITS PAEAMOUNT PEINCIPLES 25 Coke, and his eclipsing Lord Bacon with the King, Parliament and the Judiciary.^^ Coke saw equity as an accessory to the English law, as to the things he enumerated, namely, "Covin, Accident and Breach of Confidence," wherein equity had juris- diction of "Fraud, Accident and Trust." In A. D. 1769, Black- stone, applauded for his definitions, saw and defined equity as a remedial incident that had been grafted upon English law.^** Mansfield's decisions (A. D. 1756-1792) made the principles of the civil law a graft upon all its parts, and notably in commer- cial law and in procedure. He introduced the Civil Law into Procedure when he decided Rushton v. AspinalP^ and Bris- tow V. W right, '^^ and these cases naturally called for Dovaston v. Payne.^^ Following this growth came Kent's contributions, also Story's. His § 10, Story's Pleading, includes the decisions in Rushton, Bristow and Dovaston, already cited. Kent quoted and followed Rushton in Bartlett v. C rosier. ^^ The principles in these cases have long been correctly stated and they can now be correctly stated. * These cases and that section were reaffirmed by the New York Code (A. D. 1848), and in Missouri (A. D. 1849), by requir- ing a record, necessary allegations, and corresponding proofs, all with certainty and free of ambiguity. But the courts of America, like the Coke of earlier generations, could not compre- hend and apply the Code. They could not see the fundamental law from which it was conceived and expressed. This is well illustrated in the first Code case;''*^ also in the second.®* § 32a. Bla^kstone's Definition of Equity Necessitated a Code TO Simplify, Unify and Expedite."^ — And this Code came in A. D. 1848. But the Cokes in America were not prepared to receive and expound it, as their cases show. The interpreters of Codes have rarely understood the fundamentals of juris- prudence. They have not understood that there are books labeled "Elementary Law" that have omitted all elements, and 58— Chapter 1, Gr. & Eud. 59—1 Story Eq. 59. 60 — L.C. 5, vol. 3 Gr. & Eud. 61— L.C. 135 vol. 3 Gr. & Eud. 62— L. C. 217 vol. 3 Gr. & Eud. 63— L.C. 6, 3 Gr. & Eud. 63a— Biddle v. Boyce (1850), 13 Mo. 532. 64— Eno v. Woodworth (1850), 4 N. Y. 252, 53 Am. Dee. 370. 65—1 Story Eq. 59. 26 EQUITY m PEOCEDUEB that many teachers essay to teach from these; nor that in the maxims of antiquity are embedded the elements of equity, and of Codes of Civil Procedure. When the Code provided for one juridical document, one statement, one forum and ofie relief, this was the reincarnation of equity,"" and that, too, in a way agree- able to Blackstone's definition. Codes of Civil Procedure, when rightly interpreted, re-enthrone equity. This trilogy of equity procedure is also the trilogy of the Codes. But judges have not understood this. In Missouri they are as widely apart as Judge Seymour D. Thompson, on one hand,""^ and Judge Sher- wood, on the other. § 33. The Twentieth Century Equity Differs from That of THE Renaissance. — The equity of today is the heart and vitals of jurisprudence; its inflow for three hundred years is beyond calculation. It was introduced as a feeble taper to a people emerging from feudal darkness, fanaticism, bigotry, supersti- tion, and in the shadows of impending revolutions; and it has brightened into tlie beacon lights of the great empires of the twentieth century. It has been passing from its swaddlings of commendation and conscience into an all-swaying arbiter and an invincible dictator of right and wrong. Indeed, it has ad- vanced far beyond this, for it is the basis of our codes of civil procedure, which form a great and a leading factor in the admin- istration of the laws in thirty-five states of the Union. And the end of the career of conquest of the Code of Procedure is not yet, for its principles are from antiquity, and they are for eter- nity. From necessity, in one form or another, in one expression or another, these principles are irresistible. Their simplicity, their morality and their usefulness must move them forward and higher in the lawyer's estimation. They are essential to progress, education and protection. Such are the principles constituting the trilogy of procedure ; they underlie all systems when rightly interpreted, as we shall seek to demonstrate. Here it seems well to state that, if equity has given the codes of civil procedure, due and significant mention of this fact should be impressed and kept in view. Indeed, how can equity be rightly appreciated when viewed R6— Bliss code PI. 141. 66a — See Variance: vol. 4 Gr. & Eud. EQUITY— ITS PARAMOUNT PEINCIPLES 27 from the principles that Coke prescribed for it as fundamental, when once it is perceived as the inflow of the morals and wisdom of the mother of dead empires? How can equity be rightly appreciated if it be taught separate and away from its greatest gifts and splendid benefactions to the twentieth century? Among these benefactions are the codes of civil procedure. § 33a. The Codes of Civil Procedure Must Be Comprehended WITH Theie Cognate Principles, and Viewed feom Their Point OF Origin.— The codes of civil procedure arise from fundamental principles."' These principles tend toward unification, simpli- fication and expedition. The genius of the Code is one juridical document, one statement, one forum and one relief. This genius includes the leading ideas of convenience, economy and sim- plicity. To attain these ends, the material, certain allegation is required."® Also the certain admission or certain denial ; also the certain issue.""* These ideas dominate : 1. Pleadings are the .iuridical means of investing a Court with jurisdiction of ' a sub- ject matter to adjudicate it. 2. Pleadings are to limit issues and to narrow proofs. Convenience, reason, economy and necessity found these rules. 3. One is entitled to a conscientious, positive, certain denial of every specific certain material allegation. E.g., if one avers the execution and delivery of a certain document, these allegations should be either positively admitted or denied. Courts should enforce this rule. 4. Every material allegation admitted is for the purposes of the action, therefore conclusive; it is uncontrovertible. Generally, Codes so provide. 5. Pleadings should be made servitors of justice and not instruments of covin and chicane. 6. The general pleading, and especially the general issue, the false and the sham pleading whether allegation or denial, are inimical to equity procedure, and also to the Code. 7. Equivocal and uncertain pleadings permit contention for an ebb and flow of jurisdiction dependent upon external changes, that are productive of innumer- able and incalculable mischiefs. 8. A loose and shifting or intermittent basis of acquiring and exercising jurisdiction emasculates the due administration of the laws, and undermines the conserving principles of procedure.'^o § 34. The Modem Equity Is the Roman Civil Law.— This law in all its height, breadth and depth has come to Continental Europe, to England and all her provinces. It is the basis of the jurisprudence of all Latin-speaking races. Bacon's rules for 67_§§ 56-61, vol. 1 Gr. & Eud. 68 — Green v. Palmer: 90, vol. 3 Gr. & Eud.; Dickson t. Cole: 34; Munday v. Vail: 79, vol. 3 Gr. & Eud.; Cases. 69 — Campbell v. Porter: 2, vol. 3 Gr. & Eud. 70_§§ 83-123, vol. 1, Gr. & Eud. 28 EQUITY IX PEOCEDUEE practice in the High Court of Chancery were nothing more than one hundred maximized rules. They have governed that Court from the time of their promulgation ; this practice is the proce- dure in the Federal Courts in the United States. Mansfield injected the civil law into all of his decisions, and especially into procedure and commercial law. The Code of civil procedure (A. D. 1848), commencing in New York and Missouri, is founded upon the Eoman civil law, or, in a narrower sense, upon equity procedure. Three maxims from the civil law form the trilogy of procedure, and this is the basis of equity procedure. The Codes of civil procedure reafiSrm these maxims. The ablest judges soon recognized this fact. In Andreios v. Lynch, A. D. 1858,''i Napton, J., decided that the requirement for the statement of the cause of action was a mere reaffirmation of the old law. In effect, he decided that the maxim De non apparentibus et non existentibus eadem est ratio (Where the court cannot take judicial notice of a fact, it is the same as if the fact had not existed) was the old law, and is also the Code, and also the prescriptive constitution. And with vigor and clearness. Justice Field, while a Supreme Judge in California, spoke in Green v. Palmer, A. D. 1860.''^ From these decisions will appear the fact that the American Courts did not understand the fundamental principles, which, from necessity, must support the Code. An able Code author was fully justified in saying that the Code came from older systems, and that the attempt to learn the Code without knowing the earlier law was ' ' a grope in the dark. ' "^ § 34a. The Law Is an Entirety, and Cannot Be Written and Taught in Individualized Branches.'^* — Therefore, should it be longer attempted to learn the Eoman law in fragments? If this law was founded upon the maxims written upon the XII tables, why should not that law be presented upon the matter of those tables today? If the matter of these tables is to be found in Broom's maxims and Mansfield's cases, why should not these fountain sources be ever kept in view and familiarized? And why can they not now be stated? 71—27 Mo. 167. 72—15 Calif. 411, 76 Am. Dee. 492, L.C. 90, vol. 3, Gr & Ru.l 73— Bliss Code PI. 141. 74 — Preface 1 Bish. New Crim. Law, p. VI. EQUITY— ITS PAEAMOUNT PEINCIPLES 29 Melius est peter e fontes quam sectari rivulos: It is better to seek the fountains tlian to wander down the rivulets. The six leading subjects of the law, namely, Procedure, Equity, Contract, Crime, Tort and Construction, are founded upon fundamental maxims of the Roman law. And it may be well to add that governments exercise their authority and ground their immunities, and limit their rights upon maxims from the civil law. § 34b. Procedure, Codes, Equity, Contracts and Construction Ake Inteeactions ; Illustrations. — It seems well to illustrate how a few fundamental principles give development and force to leading branches of the law. To demonstrate these principles, we will select cases from Missouri, which, shortly after New York, adopted a code,'^' and gave the first code decision.'^'' The cases selected will illustrate fundamental pi'inciples of procedure, of contract, of Codes, of construction, and of equity — if only it is borne in mind that the assent to a contract is its mutuality, of which we read so much in equity. Indeed, one of equity's early maxims is "Mutuality is equity." There are phases of this maxim that interlace with Non hcec in foedera vent: 1 did not come into this compact. Another leading element in contract is the consideration for the promise. The maxim of the Roman best expresses it in tliis way: Ex nudo pacto non oritur actio: From a bare agree- ment, no cause of action arises. The indivisibility of the "sub- stantive right" and of "adjective law" may be perceived from this maxim. In form the maxim belongs to what some term ''adjective" law; but in substance, it defines and limits, and therefore in effect creates, the ' ' substantive ' ' right. The two can no more be separated in practice than the shores of a river can be separated from the river without destroying the river. The shore makes the river possible; and so procedure makes sub- stantive rights possible, and is the channel in and through which they manifest themselves. In equity cases, the essen- tiality of a consideration is most acutely and learnedly dis- cussed. In many relations, the consideration is a leading equitj^. To illustrate: 75 — Feb. 24, 1849; act went into operation July 4, 1849. 76— Biddle v. Boyee, 1850, 13 Mo. 532. 50 EQUITY IX PEOCEDUEE If one makes a voluntaiy conveyance, i. e., one witliout a con- sideration paid by the grantee, and the next day becomes heavily indebted, then that conveyance would be declared fraud- ulent as to subsequent creditors. But otherwise, if a considera- tion was bona fide paid by the grantee. Here is applied the maxim: "when there are equal equities, the law will prevail"; or, in its broader expression: In cequali jure melior est conditio possidentis: When the parties have equal rights, the condition of the possessor is the better. There is also involved: Qui prior est tempore potior est jure: He who is first or before, is stronger in right. Also Vigilantihus et non dormientibus jura suhveniunt (The laws serve the vigilant, not those who sleep over their rights) interlaces in many of the discussions. Eelat- ing to the consideration, the bona fide purchaser in all relations of claim must defend upon allegations of payment, and if this is denied, then upon proofs as well, that an adequate consideration was paid.'^^ Phases of this discussion involve the maxim that "he who seeks equity must do equity." That "Equity follows the law ' ' is one of the middle age maxims ; but it is often mis- leading, for "Equity looks at substance and not form." This is well illustrated in the fact that a deed is conclusive evidence of a consideration at law, but not in equity, where the grantee Tinder a deed must allege and prove a consideration as in cases of a simple oral contract. In the face of examples like this, the student may well doubt the utility of the maxim ' ' Equity follows the law." But if we state it this way, it will be more accept- able: Equity follows the law, unless some fundamental prin- ciple or basic right would be violated. It is nearer the truth today to say that the law follows equity. Wherever there is conflict between the two systems upon a fundamental position, the law finally yields, though not always without a struggle. In connection with the last mentioned maxim, there may well be considered this most important one : Lex non exacts definit, sed arbitrio boni viri permittit : The law does not define exactly, but trusts in the judgment of a good man; Precedents must yield. 77— Bassett v. Nosworthy : Le Neve, 2 White & Tudor 's Lead Ea Cas ■ T, C 395, 396, vol. 3 Gr. & Eud. ' "^- ' ' ' ^■'- EQUITY— ITS PAEAMOUNT PEINCIPLES 31 § 35. Equitable Conceptions UnderUe Civil Codes of Proce- DUKE. — Codes of civil procedure originated in and were con- ceived from fundamental principles of equity. Much can be adduced to support this view, and in this connection it seems well to state that in equity the practice was, one juridical docu- ment, one statement, one forum and one relief. For unification, simplification and expedition, the Code adopts the theory and the features of equitable procedure. In the face of this fact, it may be asked why equity should not be studied as the basis of Code procedure. In Bliss on Code Pleading,'^* we are informed that the Code is the outgrowth of earlier systems, and that the attempt to learn the Code as a late and individualized branch without regard to earlier systems " is a grope in the dark. ' ' At this time we may well pause and consider equitable procedure as the chief and dominating contributor to the Codes of civil procedure. The next sections will relate to this question. § 36. The Trilogy of Procedure: The leading principles of every protecting jurisprudence are: 1. De non apparentibus et non exist entibus eadem est ratio: Where the court cannot take judicial notice of a fact, it is the same as if the fact had not existed. 2. Frustra probatur quod probatum non relevat : It is vain to prove what is not 'in question or ■what is not alleged and denied. S. Verba fortius accipiuntur contra proferentem : The words of an instrument are to be taken most strongly against the composer. These maxims are from the civil law of Kome, of which the equity of the Eenaissance is but a fragment. In its original home, equitable procedure was developed from that trilogy. These principles are discoverable in the instructions Festus gave the Scribes and Pharisees in Paul's trial.'^^ They under- lie all systems of Procedure, the equity, Ecclesiastical, the Common Law Civil and the Common Law Criminal, as well as the Codes. Lord Mansfield reaffirmed these principles in RusMon v. Aspinall;^'^ and Bristow v. Wright;^'- Verba fortius was re- affirmed in Dovaston v. Payne.^^ In RusMon it was held that the omission of a material allega- 78— § 141. 79 — Chaps. 23-25, Acts of the Apostles. 80 — L.C. 5, vol. 3 Gr. & Eud.; Smith Lead. Cas., 8th ed. 81— L.C. 135, vol. 3, Gr. & Eud. 82— L.C. 217, vol. 3, Gr. & Eud. 33 EQUITY IX PEOCEDUBE tion was a fatal defect in a declaration ; exactly as that omission, affects a pleading in equity.** In Bristow it was held that Allegata et probata must corre- spond, exactly as they must in equity. In Dovaston it was held that liberal construction could not supply the omission of a material allegation and that it was pre- sumed one could not claim the benefit of a fact which he did not allege.** To what extent liberal construction can supply the omission of a material allegation is often a nice question which must be determined from the entire pleading.*' A careful examination of this question will show that the tests are the same in all systems. The importance of equitable jurisdiction and how it is vested and exercised comprises by far the larger part of the discus- sions of equity. This fact will indicate the importance of right and clear conceptions of its procedure. If this in substance is the same in other systems, it seems well to comprehend that fact ; and if the Code is founded on the same principles, nothing can be of more consequence, to the Code practitioner than clearly to perceive that fact. § 37. "One Is Presumed to Intend the Natural, Direct and Probable Consequences of His Act" is a maxim from the Roman expressed thus : In jure non remota causa sed proxima spectatur: In law the immediate (proximate) and not the remote cause of any event is regarded. Lord Bacon made this the first maxim in his gathering. This maxim is a most useful one in all branches of the law. In criminal law the rule is, one is presumed to intend to kill by the use of a deadly weapon ; in this relation, it is most plainly a rule of evidence; and consequently it is a rule of procedure. In the discussions of Hadley v. Baxendale and its cognate cases, it appears as a rule of contract ; herein the question whether or not counsel fees are recoverable in cases of warranty or of deceit will remind the reader of other endless discussions already referred to. Some of the decisions reaffirm the maxim, 83— § 10 Story PI. 84— § 10 Story PI. 85— Dobson v. Campbell: 232a, vol. 3, Gr. & Bud.; Busliton- 5, vol 3 Gr & Hufl.; R. V. Solomons: 20, vol. .•!, Gr. & Bud.; Boper v. Clay, 18 Mo 383 59 4m Dec. 314: Cases. (Code.) ' ' ' " EQUITY— ITS PAEAMOUNT PBINCIPLES 33 Avlnle others do iiot.^« If to a proper state of facts, the maxim Tvas applied, then juridical intellects could reason and think and <-ome to right conclusions. But instead of this, what has come -to pass under a cumbrous case system, where the judges of a later generation insist on following decisions of preceding gen- ^tory PI- vol. 4, Gr. & Eud., Story; Slacum ^. Pomery, 4 Gr. & Eud.- IJ S v. Linn 4 How. 104; Davis, 126 Mo. 69, 78, § 458 post. § 119 1 Gr. & Eud §119 post, wherein are cited Sache %. Wallace, Munday v. Vail Lf 79 ^ Gr * Eud., and other cases. ' > "* ^^- * DUE PROCESS OF LAW 43 whether civil or criminal. Herefrom arise the substantive rights of the state, which can never be waived ; these are the higher law. § 48. Illustrative Cases of the Above Section.— This very profound and instructive section from Story's pleading applies alike in all systems; from it can be picked the trilogy of pro- cedure already quoted and explained. And it applies equally and alike in equity, criminal cases, civil cases, and particularly to Codes, as will appear from the following: liqvity: Shelton v. Piatt, 139 IT. S. 596 ("irreparable injury " is a conclusion of law and is insuflScienl ) ; Alien v. Pullman Car Co., 139 tf. S. 658; S. v. Wood, 155 ilo. 447; Hanford v. Davies, 163 U. S. 273, L.C. S6, 3 Gr. & Eud. See Campbell v. Porter, 162 TJ. S. 478, L.C. 2, 3 Gr. & Eud. et. seq. Indictments: U. S. r. Cruilslmnlc. 92 IT. S. 542, L.C. 232, 3 Gr. & Bud.; C. v. Moore, L.C. 20, 3 Gr. & Eud.; B. r. Wheatley, L.C. 19, 3 Gr. & Eud. ct seq. (Mansfield). Common Lair Civil: SusTiton i. Aspinall, L.C. 5, 3 Gr. & Eud. et seq.; Andrews v. Lynch, 27 Mo. 167 (Code) ; Fish v. Cleland, 33 111. 238, L.C. 12c, 3 Gr. & Eud. et seq.; Bartlett v. Crozier, 17 Johns. 448, 8 Am. Dec. 428, L.C. 6, 3 Gr. & Eud.; Slaciim V. Pomery, 6 Cranch, 221 (Marshall, C.J.) ; Van Leuven v. Lyke, 1 X. Y. 515. Code: Green v. Palmer, 15 Calif. 411, 76 Am. Dec. 492, n. L.C. 90, 3 Gr. & Eud.; Andrews v. Lynch, supra; Hush v. Brown, 98 Mo. 486 (Barclay, J.) ; MalUncTcrodt, 169 Mo. 388, L.C. 12a, 3 Gr. & Eud. (Sherwood, J.) ; Charles v. White, 214 Mo. 187,. 21 L. E. A. (N. S.) 481; S. v. Muenrh, 217 Mo. 124, 129 Am. St. 536: Cases; Sache v. Wallace, 101 Minn. 169, 118 Am. St. 612, 11 L. E. A. (N. S.) 803, 11 Am. & Eng. Ann. Cases: 348, 4 Gr. & Eud. Contra: See Theory of the Case: cases, 4 Gr. & Eud.; 2 Thomp. Tri., §§ 2310, 2311. § 49. Definition of Pleadings Should Be Broad and Compre- HENsivE. — It should include the meaning of Story's section above quoted. Therefore we offer this definition : "Pleadings are the juridical means of investing a court with jurisdiction of a subject-matter to adjudicate it." The definitions of feudal authors followed by Chitty, Stephen Gould and their prototypes have been very misleading. War- rant for these conclusions is found in the notorious disorders that have befallen many states, wherein the functions of plead- ings and of the mandatory and of the statutory records are jumbled and confused. These authors have caused the confusion and misconception that may be gathered from the annotated case authors and compilers of the cyclopedias.^^ Their little and partial definition of pleadings has greatly contributed to the endless discussions involving the functions of the records and of the different parts thereof and of all that relates thereto. 11— See 31 Cyc. 1-778. 4i EQUITY IN Pl^OCEDUEE These discussions will remind the reader of those relating: to Shelley's case, and those to the Duchess of Kingston's case, Crepps V. Burden, and the Earl of Oxford's case. Frona the cases discussing the "theory of the case" enough can be picked for long rows of cyclopedias and digests.^- § 50. The Feudal Definition of Pleadings Misleading.— All texts and decisions which define pleadings for trial purposes only are vicious and bewildering. They usually limit the use of pleading "to give the adverse side notice"; or "to apprise the defendant. ' ' Those who construe the statute of Jeofails and Amendents "in furtherance of justice between the parties" only have no true and broad view of pleadings. Nor have those who see no more than this: "There must be an allegation of each fact, so an issue can be formed." They do not see pleadings as a part of the scheme of government for protection limiting and restraining courts, process and the rights of all claimants under judgments and their process; they do not see all of these mat- ters on the separating line between an absolutism and a consti- tutionalism ; they do not see that these matters are the bulwarks of liberty and of protection ; they do not see that the study of procedure is the study of government ; they do not see the state as a silent yet ever present party in all the dealings of men and in all official proceedings ; they do not see the function of defend- ing the state's mandates in the general demurrer, the motion in arrest of judgment, and in objections upon collateral attack. They do not see that the ground of the general demurrer is never waived; that "it will keep," without objection, exception or statutory record, or any of its attendants, such as the motion for a new trial, or its sequela, the assignment of errors. They do not see that if "no cause of action" or "no defence" is stated at the right time, in the right place, in the right way,, there ever attends the principle Quod ah initio non valet intractu temporis non convalescit: What was void in the beginning can- not be cured by lapse of time. Unless the rights of the state — of the third person — are properly respected in any compact or proceeding, the state or third person may ever defend under the shield of Res inter alios acta alteri nocere non debet: A transaction between two ought not operate to the disadvantage 12 — See Theory of the Case; also Variance, 4 Gr. & Eud. DUE PROCESS OF LAW 45 of a third; or Non hccc in foedera veni: I did not come into this compact. Accordingly are perceived limitations of waiver, of the operation of Consensus tollit errorem: Acquiescence in error obviates its etfect. AYliat relates to the state, to the public wel- fare, cannot be waived. There are limitations of waiver. Salus popiili suprema lex: That regard be had for the public welfare is the highest law. The interests of the state cannot be con- tracted, or consented away ; they cannot be waived ; two cannot contract for a third ; two cannot waive and bind a third ; a fortiori one cannot waive and bind a third. Here is an immutable prin- ciple of contract from the Roman law, illustrated in the law of procedure. Accordingly, the universal rule relating to the general de- murrer, the motion in arrest, and collateral attack is as above stated. Consequently the statutes of jeofails and amendments cannot apply to anything but formal defects, and this is the law of the Eoman, Norman, English, federal and best state. Con- sensus tollit errorem has limitations that "our statute," "our Code," our "new practice act," "our revised Code" cannot change without dismembering the necessities for the due ad- ministration of the laws, and all that depends thereon. From such viewpoints the immutable elements of jurisprudence should be viewed; these elements are from the prescriptive constitution. "The Eoman still holds dominion over this world by the silent empire of his law." § 51. The Mandatory Record and an Important Part Thereof, THE Pleadings, Aee Peesckibed by the State, Foe the State. — For reasons of public policy, government — the state — prescribes a fixed permanent, record to support the conserving principles of procedure.^* It is the record Eome prescribed and kept, and opened and looked for and on account of Rome. This record Avas Rome's mandate and Rome's affair, and by this record Rome looked and judged for herself; by this record the proceedings must appear to be coram judice. From Paul's trial, in the Acts of the Apostles, this fact may be deduced. Now, exactly as Rome prescribed and viewed this record, so does the state in America.** 13 55 83-12.^, 1 Or. & Rnd. ]4_Camnben v. Porter, 3 62 U. S. 478; Windsor v. :\rcVeigh, 93 TJ. S. 274, L.C. 2, 1, 3 Gr. & End. 46 EQUITY IN PEOCEDUEE These views, and familiarity with that leading rule of evi- dence, namely, "What ought to be of record must be proved by record and by the right record," will lend great aid in comprehending the theory of procedure. Herefrom may be judged the importance of the general de- murrer, the motion in arrest of judgment, and of collateral attack, also of the conserving principles of procedure.*^ Herein lies substantive law, the substantive law of the state, which is paramount law. § 52. The Division of State Power Is Involved in All Govem- MENTAL Functions. — It is the first great principle of a constitu- tionalism.^^ It is often involved in the leading rule of evidence, "What ought $0 be of record must be proved by record and by the right record." This is the rule that demands the mandatory and the statutory records ; and to these assigns exclusive functions. To these records there is chiefly applied Expressio unius est exclusio alterius. One of these records cannot be made a substitute for the other. The division of state power is a conserving principle of procedure.^'' The rule excluding oral evidence where the "right record" is prescribed should be well comprehended.^® The division of state power is involved in those cases where the judge attempts to delegate the judicial function, which is for- bidden." In Mailer v. Whittier Machine Co., 170 111. 434, the Judge attempted to authorize the clerk to assist in the judicial function in perfecting the statutory record (bill of exceptions) ; herein the clerk's participation for the Judge vitiated the record; and herein the rule, "What ought to be of record," etc., was most instructively applied; it was also held in that case that the parties named upon the record could not create a bill of excep- tions by stipulation nor any substantial link of that record. The clerk cannot discharge judicial functions nor can the judge per- A TT ^'^"Tn! ^l"-^*^', ^ ?n rt, ^l^'^' ' ^^^'="" ^^ ^""""y- ^ ^S''- ^ S"-!' 5 U. S. V. Linn, 4 How. 104; Smalley, ]9 111. 207. ' 16— Marbury v. JIadison, L.C. 142, 3 Gr. & Eud 17— § 96, 1 Gr. & Bud. 18— See L.C. 46-60, 3 Gr. & Eud. Cases cited. 19— Van Slrke v. Trempealeau, 177, 3 Gr. & Eud. DUE PROCESS OF LAW 47 form the clerk's duties. The advocates of The Theory of the Case,-^' and cases there cited, are confronted with the funda- mental principle of a constitutionalism, as well as the trilogy of procedure and the section above quoted. Procedure written from little conceptions, narrow vision, from erroneous and misleading definitions is one thing, while procedure written from the philosophy of the law is quite another. The division of the state power is of the first and highest con- cern ; it is the mandate of the state for the welfare of the state that there may be a government of laws and not of men. Viola- tion of this principle the state will not permit. § 53. Presumptions of Regularity Are Limited and Defined AS TO What Coxcekns the Paeties Named Upon the Record. — "What concerns the third party, the Crown — the state — the gov- ernment must afftrmatively appear according to the require- ments, "What ought to be of record," etc. The public, the third person, is concerned in the enforcement of this rule. Omnia prasumuntur rite et solemniter esse acta: All things are presumed to have been rightly, regularly and validly done. This maxim is closely akin to Consensus tollit error em: Acqui- escence in error obviates its effect. Each of these maxims relates to formal matters, to matters that are waivable in char- acter. They do not relate to matters required by the state for reasons of public policy as already explained. Formal matters are not peremptorily required by the state for the public wel- fare, therefore they can be waived. Therefore, if error waivable in character is committed and there is no objection or exception taken and preserved in the right record, then such error is waived as has already been explained. At this juncture is the place to introduce Omnia prcesumuntur rite, etc., and in connec- tion with it the rule that relating to all those matters which concern the parties named upon the record, and not con- cerning third persons, the presumption of regularity obtains ; but of matters that concern the state or third persons there can be no waiver, no footing for the application of the presumption of regularity. This maxim has no application where this lead- ing rule of evidence should apply, namely : •"AVhat onglit to be of record must be proved by record and by the riglit record." 20 — See Variance, 4 Gr. & End. 48 EQUITY IX PEOCEDUEE To illustrate : A cause of action or a ground of defence must appear from tlie right record, or the right pleading. This was the old rule, also the requirement of the Code f^ the language of the Code is inter alia that the complaint or petition shall contain the facts necessary to constitute 'a cause of action; also that filing an answer will not waive the foregoing requirement ; also that all relief must be within the facts stated. Now, if a statement omitted an essential allegation, as in Rushtou V. Aspinall,-- this would be a fatal defect and incurable. Quod ah initio non valet in tractu temporis non- com alescit. If a material allegation is omitted, filing a subsequent plead- ing will not cure nor aid the defect.-" Therefore the state inter- dicts the application of Ohinia prcesumuntur rite, etc., at least as to those matters that must appear in the mandatory record. And here it seems well to observe that the Code respects sub- stance or essential matter as is required in other systems. In equity a cause of action must appear in the bill.-* What is formal, waivable, abatement or dilatory matter can- not be stated within hard, sharp lines."^ But generally it may be said that whatever is necessary to support the conserving principles of procedure is matter of substance and substance cannot be waived; in other words, whatever should or must appear from the mandatory record is matter of substance. ^^ In a general way it may be said that presumptions of regu- larity will not supply that matter which should appear from the mandatory record to support the conserving principles of pro- cedure. Substance must appear, it is not implied. Extended discussion of Omnia pra'Siimuntur rite, etc., can be traced from Crepps v. Burden."' These discussions are vast and unending. They involve the Theory of the Case. § 54. Limitations of the Application of the Maxim of Regu- LAKiTY.— The application of Omnia prcesumuntur rite, etc., may 21— §10, story's PI., above quoted. . 'r-jr^-*^'- ^' ^ ^''- ^ ^"'^- (common law\ or Andrews v. Lynch CMo Codpl m- 27— L.C. 113, et seq., 3 Gr. & Eud.; Hahn >. Kelly, 2 Gr. & Hud. DUE PEOCESS OF LAW 49 "be said to be coextensive with the maxim Consensus toll-it crrorem. As to the statutory record, there is much presumed to be right and regular imtil tlie contrary affirmatively appears ;^s to this record, all can be waived. But as to the mandatory rec- ord, it is an irreducible minimum ; as to this record, there must be enough to resist objections upon collateral attack, for pur- poses of appellate procedure, res adjudicata, constructive notice, due process of law, to satisfy requirements of the division of state power, and other conserving principles of procedure. The statutes of jeofails and amendments have been directed at the destruction of the necessary record for the support of the foregoing matters. The effect of these statutes is indicated by the decisions in Missouri and Illinois.-^ § 55. Philosophy of the Law Emasculated by Statutes.— In Missouri a statute was enacted that the motion in arrest of judg- ment was indispensable in order to have a review of any error shown from the mandatory record. There are many decisions in that state upholding that statute, and as many rejecting it; according to the statute the motion in arrest of judgment governs the mandatory record exactly as the motion for a new trial, and its consequent, the assignment of errors, limits the uses of the statutory record. Under this statute all errors and defects were presumed right and regular except such as were saved by a motion in arrest of judgment. Consequently a record or a plead- ing fatally defective as to substance was presumed good and suiificient by waiver, by an application of the principle expressed in Consensus tollit errorem.^° Giving to the above maxims an operation beyond that given by the Eoman, Norman, English, Federal and best state deci- sions has caused great derangement.^" The results in the states mentioned show that any dis- turbance of ancient landmarks profoundly disturbs the opera- tions of the judicial department, and consequently of the administration of the laws. § 56. Limitations of Liberal Construction.— Where the man- datory record shows upon its face that a judgment is void, 28 — See Missouri ; also Tllinoi?. 29 gee Harrow v. Grogan (111.) ; also Illinois, vol. 2, Gr. & End. 30 See Theory of the Case, 4 Gr. & Eud.; Slacum v. Pomery, 4 Gr. & Rud. ; Windsor v. McVeigh, L.C. 1, 3 Gr. & End. et seq. ,-,0 EQUITY IN PEOCEDTJEE curative matter will not be imported nor like proceedings pre- sumed in order to validate the judgment. Crepps v. Burden, L.C. 113, Cases cited. If the mandatory record shows that there was no service of process this fact will be conclusive in the absence of matter showing there was. But in some courts a more liberal rule is found, e. g., in Harrow v. Grogan (111.) the record showed that the service of process was void. However, judgment was subsequently entered, and to sustain this judgment, it was pre- sumed that before it was entered an alias summons issued and was duly served, although the record was silent as to this fact, and although this fact should have affirmatively appeared upon the record in accordance with ' ' what ought to be of record must be proved by record and by the right record."'^ § 57. Substantive Rights of Government Must Affirmatively Appeak. — The mandatory record should have showed all that was done in reference to acquiring jurisdiction either of the person or of the subject matter. And to make and keep this record a clerk is chosen and obligated and fills his office. Naturally it should be presumed that lie did his duty; and therefore all that was done properly appeared in the right record. Presumptions rest on regularity, nature, reason, and probability; But these views did not prevail in Harrow. Had this record been offered to prove title to property or an estoppel of record it would not have been sufficient under the rul.es of res adjudicata, wherein the leading rule is "What ought to be of record must be proved by record and by the right record. ' ' But this leading rule of evidence was denied in Harroiu. The views in this case would make it futile to make objections upon collateral attack, for whatever link in the chain was absent could be supplied by- unbridled presumption, or, in other words, caprice or whim. To illustrate: If a judgment were entered the authority to enter it would be presumed; or, if letters of administration issued, then the jurisdictional facts would be presumed. Probatis extremis prcBSumunter media: From the extremes the inter- mediates are presumed. In other words, if the deed of an agent were shown, then his power of attorney would be presumed. But, 31— DodcMdge, 222 Mo. 146, 154-155. DUE PROCESS OF LAW 51 nevertheless, tlie universal rule wliere jurisdiction is involved is in all courts "an authority must be pleaded."^- § 58. Substantive Rights of the State Constnied Away; Con- sequences.— In BoLscwicz r. R. R. (1909), 240 111. 238, B., eight- een years old was killed by a railroad train. B. lived with his parent in Kewanee, in Bureau County. He did not live in Chicago, in Cook County ; nor did he have property in the latter county. Letters of administration could only be taken out in the decedent's residence, which was Bureau County. However, an unauthorized person applied for letters in Chicago, Cook County, but upon what means or showing did not appear. With nothing but the letters, this straw or puppet administrator set- tled with the railroad for $100.00 and gave it a release. This release was not pleaded in defence, but was admitted under the general issue. But this release was held unavailing in the trial court, also in the court of appeals. However, the Supreme Court was divided in opinion and reversed the judgment upon the ground that regularity was presumed ; that it was conclusively presumed from the mere issuance and production of the letters that a sufficient showing was made to justify the issuing of the letters. Thus an estoppel of record was proved by one docu- ment alone, namely, the letters of administration. Here the presumption of regularity overrode the rules of res adjudicata, which is one of the conserving principles of procedure. Hereof the first rule is that the proceedings must be coravi judice; of course, letters issued in a wrong county could not be coram judice. The application therefor involved both suppressio veri and suggest io falsi, and necessarily perjury. Crimen omnia ex se nata vitiat: Crime vitiates everything that springs from it. And, besides, before an estoppel can be applied to one, he must be shown to have been negligent, ignorant, or at fault in some way; but none of these elements were shown in this case. The letters were issued in a wrong county, and also to a person without right, authority or an interest to apply for or receive them. There could be no privity here, and this is always required before an estoppel can apply. The letters were applied for in fraud were received in fraud, and were fraudulently used. But go Clem : '2e, 3 Or. & EikI. ; see Prasiunatur pro justitice sententics, 4 Gr. & Eud. 52 EQUITY IX PEOCEDUIiE the fundamental maxim Ex dolo malo non oritur actio: Fi'au.l vitiates all into which it enters, was made to yield to covinous machinations of the sham administrator who was plainly a tool to cheat and defraud. It may be well to observe that in Missouri and Illinois, also in other Theorj-of-the-C'ase states, the statute of jeofails is often upheld to extirpate the prescriptive constitution, and for the immolation of the conserving principles of procedure. From the rules of res adjudicata the objections to the Balse- ivicz Case may be readily perceived. This case can find no shelter whatever under Fabula non judicium (No adjudication can arise where there is no real party in interest ; it cannot arise from a myth and a sham proceeding) f^ courts were not created to manufacture records for conspirators to use, to cheat bona fide litigants by denying one his day of grace before its dawn had broken. And one should never be stopped nor barred by the fraudulent proceedings of third persons. Res inter alios judi- catcB nidlum aliis pnxjudiciiim faciuut. No one should be con- demned unheard: Audi alteram partem.^* There is no greater equity in law than this principle. § 59. Omnia Praesumuntur Rite, etc., and Consensus tollit errorem are often given a range in evidence and in construction that is destructive of a protecting procedure. To illustrate this fact reference is made to the Harroiv and the Balsewicz cases. These maxims and cases cannot be substituted for the trilogy of procedure already e;xplained; the mandatory record cannot be reckoned from them; from them no base line can be extended that will support the conserving principles of procedure.^' In these principles are imbedded the greatest equities of the Eoman law ; and these principles cannot be separated from equity juris- prudence. The law is an entirety. 23— Scott V. McNeal, 4 Gr. & Eud. 34— § es, 1 Gr. & Eud. 33— ?§ 83-123, 1 Gr. & Eud. CHxVPTEE IV (§§60-100) i:\rMUTABLE ELEMENTS COMMON TO ALL BRANCHES OF THE LAW •From tlio roots of the plant arises tlie sap that flows through all its parts." — V VI rreface Bishop's Xew Criminal Law. ■'Of the laws of England I have commondpd thorn before for the matter, but surely they ask mueh amendment for the form, which to i-edu(e and perfect, I held to be one of the greatest dowries that can be conferred upon this Kingdom." — Sir Francis Bacon. § 60. The Law Is an Entirety; Equity Is Procedure. Gen- EEALizATioNS. — TliB tillogy of equity is : 1. Juris prcecepta sunt hcec: Honeste vivcre, altervm non Icedere, suum cuique tribuere: These are the precepts of the law: "We should live honestly; injure no oce, and render unto every man his due. 2. Thi jus ibi remedium : There is no wrong vi'ithout a remedy. 3. Eegula pro lege si deficit lex: Where the law is deficient the maxim rules. These have already been introduced and explained. §61. The Trilogy of Procedure is : 1. Ve non apparentibus et non existcntihus eadem est ratio: What is not juridically presented cannot be judicially decided, or in other words, a court is bound by its record, and can consider and decide nothing not presented by its record properly made and presented to judicatory power by the court. 2. Frustra probatur quod proiatum non relevat : It is vain to prove what is not alleged. 3. Verba fortius accipiuntur contra proferentem: Every presumption is against a pleader. Of Be non apparentibus, etc., the first of the trilogy of pro- cedure, supra, it may be observed that it is the leading idea in constituting and construing the Mandatory and Statutory rec- ords already defined and explained. Any proper exposition of this maxim must include an explanation of the two records, namely, the Mandatory and the Statutory records. And, as we have seen, the latter has consequents, or auxiliary records, namely, the assignment of errors, which is founded on the motion for a new trial, and also the argument of the errors assigned. §62. The Same (continued).— Now, the trilogy of equity includes Alteriim non Icedere (We must injure no one) ; also Suum cuique trihuere (We should render unto every one his due) ; also Uhi jus ihi remeditim (There is no wrong without a remedy). From these maxims, look at the first maxim of the trilo^w of procedure, De non apparentibus, etc., and determine 54 EQUITY IN PKOCEDURE if we can proceed without the tight record, made at the right- time, at the right place, in the right luay, by the right hand — the hand or participant required by the division of state poiver. Looking from these viewpoints may be perceived a fundamental maxim of human justice, and always at the base of equity and of procedure, which is : AKdi alteram partem: The laiY hears before it decides; or, in other words, no one should be condemned unheard. In the light of the foregoing, is not this maxim a fundamental principle both of equity and of procedure? Out of necessity came the restoration of the civil law, commencing with the Earl of Oxford's Case, A. D. 1616; this and the latest cases illustrate the jurisdiction of equity to control the oppressions and the arbitrariness of the common law courts, and show that funda- mental principles of procedure are equities, that are immutable elements. To illustrate: It is observed that the use of the covinous letters of administration issued in Balseivicz v. R. R. (1909, 111.) might have been enjoined in a state where sham and mythical cases are not upheld and enforced. From this case the viola- tions of many maxims from the civil law are perceived, and especially Ex dolo malo noii oritur actio; also Crimen omnia ex se nata vitiat (No right can arise from crime) ; also the maxims supporting the doctrines of res adjudicata. Consequently in the Balseioicz case there are alike violated the fundamentals of equity and of procedure. From such cases Audi alteram partem appears as an equity. Against the fraud practiced in Balseivicz stands the trilogy of equity, also basic principles of procedure. The release given by the puppet, sham administrator in Balseivicz should on first principles have been affirmatively pleaded in defence, agreeably to De non apparentihus, etc., also Frustra probatur quod pro- batum non relevat (It is vain to prove what is not alleged). Coke defined equity as a jurisdiction taking cognizance of Fraud, Accident and Mistake. From this definition it is mani- fest that in the Balsewicz case there was ample room for equi- table interference. Equity has always interposed to vindicate the principle expressed in Audi alteram partem. This maxim IMMtrPABLE ELEMENTS 55 was masterfully and most extendedly discussed in Windsor r McVeigh.^'-' §63. The Same (continued).— From the discussions of the jurisdiction of equity to restrain the enforcement of judgments at law and to control common law courts is found ample author- ity for the foregoing observations. And these are consistent with Coke's definition of equity. Blackstone saw more in equity than did Coke, as will appear from his definition quoted in S 59, Vol. I, Story's E quit if. If any of the maxims of the trilogy of procedure are violated in a judicial proceeding, there is ground for equitable inter- ference. Consequently it may be said that the remedies of equity depend upon the trilogy of procedure ; also that equity will vindi- cate the latter as necessary for its operation. As already ob- served, the trilogy of Procedure can be picked from a great juridical passage, namely, § 10, Story's Pleading. This section is but another expression of the trilogy of procedure, exactly as the codes of civil procedure reaffirm the maxims of this trilogy in a varied language. Here it may be well to submit whether the heart and vitals of equity can be separated by hard, sharp lines from the heart and vitals of a protecting juridical establishment. From many aspects these trilogies will appear as the roots and heartwood of our entire juridical establishment ; they cannot be separated, they are an indivisible, nonpartitionable whole. Every right depends upon its remedy. Ashby v. White; Ubi jus, etc. The remedy is a necessity for the right; the remedy is an implication, an inseparable incident to every right or equity. Expressio eorum quw tacite insunt nihil operatur: Things implied need not be mentioned. M'CuUoch u. Maryland (Marshall, C. J.)- § 64. The Trilogy of Equity and of Procedure Are Cognates. — These maxims are from the prescriptive constitution of Rome ; they never can be individualized nor be widely separated. They interlace. Every right and its remedy must be traced, viewed and tested by these principles. If it be the judgment — a species of contract — this contract must be sufficiently evinced by the rio'ht record, and this record must be sufficient to resist objec- tions upon collateral attack, and to withstand res adjudicata 36_93 V. S. 274, L.C. 1, 3 Gr. & End. 56 EQUITY IN PEOCEDUEE tests, also those of "Due Process of Law," constructive notice, the removal of causes, and other conserving principles of proce- dure. A right not sufficiently evinced is no right at all. The rule next quoted is from the Eoman and applies in all systems, namely, "What ought to be of record must be proved by record and by the right record." Upon this rule depends much that relates to estoppel of record or res adjudicata. This branch of the law has been developed since the Duchess of Kingston's Case. Its development has been upon the maxims of the civil law, of which equity as at present understood is a fragment. Through- out the estoppels equitable considerations prevail.^^ Conse- quently the estoppels may be viewed from either the Procedure or the Equity viewpoint. The estoppels, along with equity, now pervade every part of the law. Such is the development from the roots, the maxims of antiquity, which constitute the pre- scriptive constitution and which have become the organic law of the continental powers and of England and, of course, Ameri- can states. It is time that the actual fact be clearly expressed. § 65. The Codes Expressly Provide for Estoppel of Record. — One of the provisions is that material allegations made on one side and not denied upon the other are for the purpose of the action to be taken as conclusively true. This admission in the 2)leadings cannot be contradicted or overcome by other evidence.^** The plaintiff and the defendant are bound by their respective allegations, denials and admissions. These bind the court and limit the claims of recovery. From these views appears the operation of estoppel, also of the trilogy of procedure. If one's allegations are repugnant he can recover nothing .^o Or if denials are inconsistent, then they admit.*" Verba fortius accipiuntur contra proferentem is a maxim of the trilogy of procedure. Verba fortius is a maxim of universal application in the construction of all documents. It applies to all contracts, to all compacts ; to the judgment and to its founda- tion, to the deed, to the simple contract, whether written or oral. It applies with great force to commercial paper. Ut res magis mleat quam pereat (It is better to conserve than to destroy) is 37—1 Gr. & Eud., §§ 171-200. 38— Bradbury V. Cronise, L.C. 35, 3 Gr. & Eud.; Bliss Code PL, § 138. 39— Pam, ex Parte. L.C. 107, 3 Gr. & Eud 40-Dickson Y. Cole, L.C. 34, vol. 3, Gr. & Eud. : Cases. IMMUTABLE ELEMENTS 57 a liberal phase of Verba fortius in construing commercial paper. If one signs and delivers a document it is presumed that he intended it to operate effectively and for a rational purpose, ■vvhich is agreeable to the rule in the Squib Case, that "One is i^resumed to intend the natural, direct and probable consequences of his act." But Tvhere the state — the public — or third persons are involved as they are in the substantial matters — the sub- stantive law — relating to the due administration of the laws, the strict rules of construction apply. Consequently the maxims of the trilogy of procedure are strict rules. But of matters that are merely personal to the contracting parties, then liberal rules like Ut res )nagis valeat and its cognates apply. The latter matters might well be termed adjective law. What is necessary to resist objections upon collateral attack, or at an earlier stage, the motion in arrest of judgment, or, still earlier, the general demurrer, is matter of substance; all other matter is formal or icaivable matter.*'^ Strict rules of construc- tion apply to matters of substance, but liberal rules of con- struction apply to formal or waivable matter. Upon right definition and classification depends right con- struction. To illustrate : If the object of pleadings is to notify the adverse side, then, like any other notice, he may icaive the pleadings. It was thus a famous author reached this conclusion. He followed a narrow-^'isioned definition of pleading.*^ The above well illustrates the importance of true and broad definitions. "^^Tiether strict or liberal rules of construction will be applied to a subject-matter depends on the character of that matter. To illustrate: If it is matter of substance in a judicial record, such as must affirmatively appear therein to resist objections upon collateral attack and to support other conserving principles of procedure, then strict rules of construction attach.*'* § 66. Jurisdictional Facts and Elements Must Affirmatively Appear. — In an inferior court they must appear ujoon the face 41_:\rallinckro(lt, L.C. IZa: Cases; Smalley, 19 111. 207: Cases. The latter is an excellent code case. 42 2 Thomp. Tri., §§2310, 2311; onoted iin.ler Variance, 4 Gr. & Bud. 43 Story's PL, §10; Rushton, L.C. .5, 3 C.r. & Rud. ; Cases cited: Dovaston, Lr' 027 3 Gr & Rud.; IT. S. v. Cruikahank, L.C. 232, 3 Gr. &- Riid. ; Davis, 126 Mo. 69 Vb- Sidway, 163 Mo. 342, 373-374; Mallinckrodt, 169 :\ro. 388, 398; C. & A. B 'b v. Clausen, 173 111. 100, 103. 58 EQUITY IxV PEOCEDUEE of tlie judgment record, and not in files and loose papers. But in a court of record, i. e., a court for whicli a clerk and his record are provided by la^, then the jurisdictional facts may be gath- ered from the files and loose papers. This is a distinction between superior and inferior courts.** It is a distinction often misunderstood. § 67. Construction Is Intimately Involved with Equity and Pkogeduee. — This will appear from a consideration of the trilo- gies of equity and of procedure. Of the former, Regula pro lege si deficit lex (Where the law is deficient the maxim rules) may be classed also as a canon of construction. Of the latter, De non apparentibus et non existentibus eadem est ratio (What is not juridically presented cannot be judicially decided), also Verba fortius accipiuntur contra proferentem (Every presumption is against a composer; or the pleader), are manifestly canons of construction. This last maxim is one of Bacon's maxims, and also of Broom's, and is one of the useful and protecting rules of the prescriptive constitution. It is these last two maxims that the statutes of jeofails and amendments, or the so-called liberal Code and Practice Act pro- visions, attempt to immolate. In order to accomplish this end the operation of Consensus tolUt errorem (Acquiescence in error obviates its effect) and of Omnia prcesumuntur rite et solemniter esse acta (All acts are presumed to be rightly, regularly and validly done) and of Ut res magis valeat quam pereat (It is better to conserve than to destroy) is sought to be enlarged. The attempt to give these maxims of liberal construction a greater force than was given them by the Eoman, Norman, English and best federal and best state decisions has introduced antinomies in the law of the states of the Union. It has resulted in a Babel. If by liberal construction an omitted allegation can be supplied, then two omitted allegations can be supplied, and so on until all of the allegations can be supplied. T\aiere this can be done, there pleadings can be waived and dispensed with. But pleadings cannot be waived.*' 44-Crepps V. DurcTen, L.C. 113, 3 Gr. & Rud. ct seq.; Bersch "7 Mo 101 rius tiee'srecord); S V. Metzger, 26 Mo. 6G: Ce.s3s: Dociari Ige o"? jro 14fi ^^ 70 Cent. L.J. 293-294, 311-314, r02 407 455-460. ''^- '"' ^'"°- ''""• ^'"'-^'''' ^^1-182; s IMMUTABLE ELEMEXTS ^ 59 ; 68. The Trilogy of Strict Construction.— These should be introduced. They are elsewhere extendedly discussed. See each of the following titles in the Grounds and Eudiments of Law : 1. De non apparentihvs et non exisientxbus eadem est ratio: What is not juridienlly ^n-psented cannot be judieially decided, or, -ndicre the court cannot take judicial notice of a fact it is the same as if the fact had not existed. A court is bound by its record. Quod ah initio non valet intraciu temporis non convulescit (That Tvhieh -n-as originally void cannot by lapse of time become valid) ; Eushton, Moore r. C, Munday, Dovaston, U. S. v. Cruilshanl-, numbered respectively, L.C. 's 5, 21, 79, 217, 232, 3 Gr. & Bud. 2. Eipressio unius est exclusio dlterius: The express mention of one thing excludes all others ; or, you cannot allege one thing and prove another. A court is bound by its record. C. v. Sohy, et seq., Bristow, L.C.'s 74, 135, 3 Gr. & Eud.; Mar- hury V. Madison, L.C. 142, 3 Gr. & Eud. See Ita lex scripia eest ; lies inter alios acta. 3. Veria fortius accipiuntur contra proferentem : Every presumption is against the composer (or the pleader). Do-vaston v. Payne, L.C. 217: Cases, 3 Gr. & Eud. See this case discussed throughout vol. 1, Gr. & Eud. § 69. The Trilogy of Liberal Canons of Construction: 1. Consensus follif errorem : The acquiescence of a party in error obviates its effect. ::. Omnia prcesumant ur rite et solemniter esse acta: All acts are presumed to be rightly, regularly and validly done. See Frohatis extremis prcesumuntur media: From the extremes the intermediates are presumed; Consensus tollit errorem. S. Vt res magis valeat quam pereat : It is better to conserve than to destroy. Bene- dicta est expositio quando res redimitv.r a destructione : Blessed is the exposition ■when the thing is saved from destruction. Interest reipuTjlicce ut sit finis litium: It is the welfare of the public that there be an end of litigation. Utile per inutile non vitiatur. § 70. The Character of Procedure Depends Upon Whether THE Steict ok Libeeal Exjles Goveen^ in Constetjction. — "Where the crown — the state — the government — is recognized as the third party in procedure, then from necessity the procedure must be in consonance with the requirements of the strict rules, so far as regards substance shown from the right record. In other words, "What ought to be of record must be proved by record and by the right r-ecord." Under this rule the manda- tory record must exist, and it must evince those matters neces- sary to resist objections upon collateral attack, the motion in arrest, and the general demurrer already explained. This record tested by these rules and proceedings is absolutely essential in a •constitutionalism. They are indispensable in a government accusatory in form; any other is inquisitorial or barbarous. § 71. Where the Liberal Rules of Construction Prevail, the Paeties Named T'pox the Eecoed May Conteact foe Themselves A Peoceduee. — In some of the states, the parties may by acquies- cence or consent exclude the state as a silent and third party. This is the form of procedure in an absolutism. Such a proco- CO EQUITY IX PEOCEDUEE dure is liable to abuse, and it is an axiom in government, that a power which can be abused is certain to be abused. Therefore it appears that a sufBcient mandatory record is the peremptory requirement of a government of freedom and protection. It is this record which the state opens and looks into for itself with- out regard to the relations of the parties thereto, their waiver, their acquiescence, their consent or their stipulations.*" § 72. Codes Reaffirm the Strict Rules of Construction Again AN^D Again, But in a Vakied Language. — The code specifically provides for the mandatory record. To illustrate : It requires this by prescribing what the statement of the cause of action or of the defence shall contain and that filing an answer will waive all formal defects, but not jurisdictional essentials of allegation and of the authority of the court to consider and adjudge. By this provision Consensus tollit errorem from the Roman was reaffirmed, also De non apparentibiis et non existentihus eadem est ratio (What is not juridically presented cannot be judicially decided. But the different sphere of each maxim must be understood. The code reaffirms leading rules of res adju- dicata, which is also from the Eoman. The first rule of res adjudicata is, "The proceedings must he coram judice." These requirements are the law of Illinois, as able decisions from that state show.*^ § 73. The Conserving Principles of Procedure Dominate the CoNSTBucTioN OF THE CoDE. — Codes, rightly interpreted, are not opposed to fundamental law ; on the contrary, they reaffirm the maxims of antiquity; these underlie the construction of the code.*^ They are the prescriptive constitution. The trilogy of procedure and of strict construction are equity principles and are reaffirmed and respected by the code.*» And the same rule applies in a Practice Act state.^" fri l-a ^^V f^'^.t "• ^^^'^^"'S (Mi°"- Code, id.); Hamiibal E. E., 42 Mo. fin to^ ^/allmekrodt .,y,™, 12a, 3 Gr & Eud. (Ground of the general 'demurrer P:il'r?lelatf33 m SSsTc l^l f^'^^^ ^ ''''^'^'''' '''''"■ ^^^= <=-- 47— Smalley, 19 III. 207. 48— §§ 83-123, 1 Gr. & Eud. V DuL^qT^'A^^ Y °?-n'^°p ^ ! Mallinckrodt, L.C. 12a, 3 Gr. & Eud. (ilo. Code) ; Clark Tofi \ ° 'rq'-^ T-,? •',^!;'no ''• ^''°'''"' 1°1 ^'^°- 5S6; Hanson, 215 Mo. 257: Davis, (N. S ) 481- C'as^s ^ ' ' ' ^^^"-^^' ^^""'^'^ '■ ™^"^' ^14 Mo. 187, 21 L. E. A. IMMUTABLE ELEMEXTS 61 The statute of jeofails, however broad and comprehensive the language employed, is limited to formal defects ; it is gov- erned by the trilogy of procedure, also by the trilogy of strict construction.^^ Such statutes are likewise restrained in Illinois.^^ But contra views are expressed : 2 Thomp. Tri., §§ 2310, 2311, quoted under Variance, 4 Gr. & Eud.^'' § 74. The Restoration of the Civil Law.— In 1848, New York adopted a code, as did Missouri in 1849. Thus in America and in the valley of the Mississippi the law advocated by Lord Bacon and respected by Mansfield, Marshall, Kent and Story was prac- tically reenthroned. In 1845 appeared Broom's Maxims, which has ever since held a foremost place with those desiring a scien- tific knowledge of the law. The decisions of Mansfield had come to be more respected, and the necessity for unification, simpli- fication and expedition had become most apparent. Statesmen saw this fact and accordingly advocated the code. But when it came, the judiciary were not prepared to administer it agree- ably to the law whence it was taken. This is evidenced by the needless attack made upon it in the first code case decided,. Biddle v. Boyce (Mo., 1850) ; also in the next, Eno v. Wood- icorth (X. Y.), 53 Am. Dec. 370. With these cases commenced the silting of the channels of legal reasoning which has finally clogged them and obscured tlie ancient landmarks of the law. The accretions of case law are now a vast marsh of bewilder- ment. Necessity demands a return to first principles, and the avoidance of a wilderness of cases which now exceeds human capacity. The well-directed student will avoid it and seek first principles : Melius est petere f antes quam sectari riviilos : It is better to seek the foun-tains than to -n-ander down the rivulets. § 75, The Trilogy of Equity Is Its First Principles.— The first maxim of this trilogy is. Juris prcecepta sunt hcec: Honeste vivere; alterum non Icedere; suum cuique tribuere (These are the precepts of the law: We should live honestly; injure no one, 51— Kittinger v. Traction Co. (1899), 1G0 N. Y. 377; Sidway, 163 Mo. $42, 373- Jiallinekrodt, 169 Mo. 397, L.C. 12a, 3 Or. & Eud. ; Clark v. Dillon, 97 N. Y. 370- Andrews v. Lynch, 27 Mo. 167; Davis, 126 Mo. 69. 78; Lilly, id., 190',. 211-213. '.5o_(-', & A. R. E. V. Clansen, 173 111. 100, 103 (apply to formal defects only). 53 See Theory of the Case, 4 Gr. & Eud. 63 EQUITY IN PEOCEDUEE and render unto every one his due). This maxim is commended by Blackstone, but in a vague and general way ; it is on the title page of Broom's Maxims. Since Ulpian it has been viewed as the first principle of jurisprudence. Accordingly we have set it first in the trilogy of equity. Herefrom we offer the view that procedure and construction have trilogies that are germane to the trilogy of Equity. The view is invited that the equity of the Twentieth Century is the Civil Law of Eome. That the leading subjects of the law, namely, Procedure, Equity, Contract, Crime, Tort and Con- struction, are all parts of that law. That the relationship of these subjects will plainly appear if only we view them from their trilogies. For this purpose we have introduced and sought to impress the trilogies of Equity, Procedure and Construction. If from Juris prcecepta sunt hcec: Honeste vivere; alterum non Icedere; suum cuique tribuere (We should live honestly; injure no one, and render unto every one his due) a relationship «an be perceived between the leading subjects of the law, there is afforded a long-awaited and much-needed demonstration. See also Chap. X, 1 Gr. & End. Many famous authorities have asserted the importance of the Lawyers' Golden Eule, which is the maxim last cited. Cer- tainly it is equal to the Theologians' Golden Eule. Indeed, they are identical and originate from the same high fountain. These rules and their cognate principles are the supreme law, for they are immutable principles. They include all others, and all others must conform to them. 7ft 'prmseniia majoris cessat potentia minoris: In the presence of tlie major the power of the minor ceases. § 76. Construction of Statutes of Jeofails and Amendments. —The language of the statutes of Jeofails and Amendments in states like Missouri and Illinois, and the so-called liberal provi- sions of the codes,^* are aimed at freeing courts from any duty to regard technicalities. These statutes contain high, strong and clear commands to courts to disregard every error which does not affect the "substantial interests of the adverse side"; also that to this end construction shall be directed. These- statutes in Dlinois and Missouri are an extended enumeration M-See Dovaston, L.C. 217, 3 Gr. & Bud.; also Theory of the Case, 4 id. IMMUTABLE ELEMENTS G3 of -what eiToi-s are cured "by verdict" or "after judgment," also that construction shall be liberal. The decisions show that many of the judges in these states have attempted literally to obey these statutes ; one of the statutes in Missouri provides that the motion in arrest of judgment must be filed in order to save any question for review in the supreme court. To illustrate the situation, it may be stated that generally it has been estab- lished, and therefore conservative practice demands, that a motion for a new trial be filed in order to save any point upon the statutory record for review; in other words, that the latter record is waived or becomes surplusage without the motion for a new trial, and that this motion must be followed by an assign- ment of errors and also an argument of each error assigned. As to the statutory record, these requirements are strictly en- forced, and any disregard of them deprives the appellant of a review of the statutory record for error. But as to the manda- tory record — the record which the state commands for the state, the entire public, as well as the parties named upon the record — wholly different views obtain. As to the latter record, two ought not to be allowed to waive or consent away rights of a third. Res inter alios acta. As to error shown upon the mandatory record, courts for and on behalf of the public look and take notice sua sponte. Salus populi suprema lex.^^ As to error shown on the Mandatory record, the entire public (which, of course, includes parties and privies) can appear and raise the objection at any time and in any way. Herefrom arises the rule, "that the general demurrer searches the substantial pleadings and attaches to the first fault"; also the motion in arrest of judgment, which is nothing but a belated general demurrer, but which may include all error appearing upon the mandatory record; and still later and forever the operation of collateral attack, which is the right of the whole public to object to the sufficiency of the mandatory record whenever it is offered to prove an estoppel or title to property.^" The state is a silent party to all official proceedings, and when its interests are neg- lected, the state or public may justly say to a record so deficient, "Non hcec in fcedera veni" (I did not come into this compact). Anyone may suggest to a court that it is proceeding without 55_CampT5ell v. Porter, L.C. 2. 3 Or. & Bud. 5g See rules of Bes Adjiidicaia (§§ 170-200, 1 Gr. & Hud.; also, 4 id.) 64 EQUITY IN PEOCEDUEB authority; without a proper power of attorney, so to speak. And this is the duty of the amicus curia;. From this idea arises and flows the theory of the general demurrer, the motion in arrest and collateral attack. Can the principle last mentioned be changed by statute! Or, in other words, may assent to illegal proceedings be imposed upon a silent third person whose rights and interests are supposed to be protected by the court for the public welfare 1 In other words, may the assent of a party to a compact be imposed by arbitrary edict? The state — the public — is a silent party to all the dealings and relations of men. Therefore the interactions and the man- dates of the state must be respected, else the state in effect says, "Non hcec in fcedera veni" (I did not come into this compact). The state denounces such dealings and such relations. The assent of the state is not given in forbidden matters. The maxim last cited is extendedly discussed in the law of suretyship.^^ To illustrate : If parties contract in forbidden relations and this fact appears either from the Mandatory or the matter of the Statutory records, a court will refuse to entertain juris- diction of such matter ; such a contract cannot be enforced. It is called an illegal contract, and in the language of procedure is stated thus: In pari delicto potior est conditio defendentis (In equal fault the position of the defendant is preferred). Now, a judgment is a contract. It is a contract of record. The other classes of contract are by deed and simple contracts. But the court enters the judgment, that is, the contract of record. But the court must have authority to enter this judgment— to make this contract. In other words, the governmental agent, the official authority, must have a power of attorney exactly as the attorney in fact must have his power of attorney to make a deed. No agent can bind his principal without authority properly evinced. Making a judgment and thus a contract is the exercise of a high and dangerous power. If a judgment could be arbitrarilv entered, therefrom and thereby all of one's property could be sequestered or confiscated to satisfy a judgment or a contract that ought never to have been established, or entered, or made. 57— Eees t. Berrington, L.C. 334a, 3 Gr. & Bud. IMMUTABLE ELEMENTS 65 Judicial power is a subtle and dangerous power; and it can 'be insidiously applied or exercised. For such wrongs there is no remedy. Here Ubi jus ibi remedium fails; for remedies against judges for wrongs, even for malicious and corrupt acts, are not afforded. There is much discussion about this, but these discussions are unprofitable if we look at them from the view- point of the rule, which is the only serious one deducible from A'olumes of jargon, that "All men are presumed to Jcnotv the law except superior judges."^^ Looking from this rule, the necessity for some protection from unrestrained and insidious power will appear. And this protection is the Mandatory record, which the clerk must have and keep, conformably to the Division of State Power. Under this rule, clerks should be chosen and empowered to hold their offices and discharge their duties absolutely independent of the judge's wishes or desires. When judges appoint their clerks this violates the spirit of the division of state power.^^ § 77. Clerks of Courts Are Important Factors in the Scheme OF GovEENMENT. — They are required by the division of state power; their records bind the court; these records are made "by the clerks at the instance and request of the parties to "a ■cause of action"; this "cause of action" when juridically stated is the authority of a court to proceed and do something relating to the disposition of this cause in a judicial way; when there is no "cause of action" there is no wrong; where no one is in deliction a court cannot act; a court is created to redress the ■urongs of wronged men, but the "wronged" man must appear and describe his wrong and the icrongdoer; for this high and important function the clerk exists and must aid; the clerk cannot be ignored or construed out of the scheme.®" § 78. Judicial Power Cannot Establish a Contract— a Judg- 3IENT — Obligating One Without Authoeity. — From this idea arises the scheme in government of prescribing the Mandatory record. It is this record that binds a court. It is this record that constitutes the court's power of authority to make any order or decree affecting the rights of the citizen, whether 58 — Lange v. Benedict, L.C. 159, 3 Gr. & End. : Cases eitecL 59 — See Keech v. Sandford, 2 Gr. & Rud. : Cases cited. eO—See Theory of the Case, 4 Gr. & Eud. ; Jeofail, 2 id. 66 EQUITY IN PEOCEDUEE from indictment, or bill in equity, or libel, or declaration, or complaint or petition. As to this all causes are alike.®^ From these considerations arise the rules : "What ought to he of record must he proved hy record and by the right record." "Pleadings are the juridical means of investing a court with jurisdiction of a suhjectr matter to adjudicate it." Campbell v. Porter, L.C. 2, 3 Gr. & Eud. et seq.,' § § 83-123, 1 Gr. & Eud.; also 278, 274, id.; Fish v. Cleland, L.C. 12c, 3 Gr. & Bud. (equity case). § 79. Records Must Exist and Be Sufficient.— If a pleading does not exist, if it is defective in substance, if it omits a material fact, there ever applies to it the general demurrer, the motion in arrest and the right to object upon collateral attack to its sufiSciency to support a judgment as an estoppel or sustain a title found upon such judgment.®^ Dehile fundamentum fallit opus. Quod ah initio non valet intractu temporis non convalescit. § 80. An Authority Must Be Pleaded.— From the above premises will be seen the protecting nature of this rule of plead- jjjg_63 rp]jg authority to enter a judgment is judged by the strict rules of construction and by the trilogy of procedure, until the jurisdictional facts are established. After these appear, then the liberal rules of construction attach. Whoever claims a right under a judgment has all presumptions against him until he establishes the judgment and its foundation. But if one com- plains of formal error only, then it is incumbent upon him to present the statutory record with all its incidents showing such error, and also that such error has not been waived or condoned.®* § 81. The Study of Procedure Is the Study of Government. — This rule arises from the foregoing premises. In connection with this proposition the Mandatory record and the conserving principles founded thereon and mortised therein, also the above definition of pleadings, should be considered. In the last analysis the trilogy of procedure is the bulwark of all our rights and liberties, for, as we have said, a power that can be abused is certain to be abused. The barriers against . .61— ■?• ^•7-,^^"'''f''^"'^' ^•^- ^^2, 3 Gr. & Eud.; §10, Sto. PI.; Eushton v. Aspmall, L. C. 5, 3 Gr. & Eud.: Cases cited; Smalley, 19 111. 207- Cases 62— Smalley, 19 111. 207: Cases. • ' 63-Cainpben V. Porter, L.C. 2, 3 Gr. & Bud.; aem. L.C. 2c, 3 Gr. & Eud. et "'• 6tl|c"L.S9t29l! 3 Gf&'Euf." ^ ''"'•' ^'^° ^-"-'^ ''■''' ' ''■' ^'^° ' ''' IMMUTABLE ELEMENTS 67 dangerous and insidious power and their dependent rules are not mere technicalities or absurd formalities ; they are rules of substance, and they cannot be waived. Nor can they be legis- lated away or excluded from the scheme of government in a constitutionalism, for reasons deducible from the foregoing premises."^ S 82. The Old Systems Must Be Understood. — " It is assumed that the student of the code is familiar with the common law and equity systems of pleading. If not, he is groping in the dark, and much that is offered will escape his apprehension. * * * But, be that as it may, the two systems run into each other, and both must be understood. This is especially true in regard to the equity system, from which so many features of the code are taken.""*' § 82a. Codes and Practice Acts Reaffirm the Trilogy of Pro- CEDUEE. — These principles ought to be construed as they were whence they came. Equity was a part of the Civil Law, and so are the basic principles of procedure. Underlying all these are Ubi jus ibi remedium (There is no wrong without a remedy) and Regiila pro lege si deficit lex (Where the law is deficient the maxim rules). These maxims are of the trilogy of equity, also of construction. Consequently appears the fact that they diffuse themselves throughout the law, the codes and statutes as well. These principles call for broad construction, ever lighted by the great canons of construction."^ Unless properly interpreted. Codes and Practice Acts may- be likened to quicksands in the moving river. And like this appears the condition in the code states wherein the code has, been construed literally and without regard to the trilogy of procedure and its corollary, "What ought to be of record must be proved by record and by the right record," or the theor;5>- and uses of the Mandatory and of the Statutory records in a constitutionalism. To illustrate : Look at Mi.'tsotiri, the first code state except New York. Herein Judge Napton spoke for the higher law in Andretvs v. Lynch, and later Judge Barclay, in Rtish v. Brown, construed statutes conformably to that law; and still later Judge Sherwood C^^Sef S§ 83-261, 1 Or. & Eufl. fifi_piiss Code PL, § ]41. (57—1 Gr. &Eucl., §§134-170. €8 EQUITY IlSr PEOCEDUEE denounced the statutes of Jeofails and Amendments with vehe- mence in Mallinckrodt.'^^ On the other hand, there were judges like Seymour D. Thompson, who argued and decided that plead- ings could be waived; that the "cause of action" might first arise from the evidence. In effect they denied the trilogy of procedure, also the strict rules of construction. And it seems that the Thompson theory has prevailed for a time.''® As the result of empirical writing and decisions, we find a plea of res adjudicata declared and established from conclu- sions of law and oral admissions.'^" Also material facts were adopted and acted upon by the supreme court because parties to the record were present in that court and did not then and there arise and contradict counsel who made charges which were not in the record.'^^ In the face of these decisions it seems well to ask whether or not the law can be best learned from the "late" cases. From the thousands of volumes in the code states, it is easy for young and nimble hands to gather matter for the long rows of "chaff pads" and "space fillers" which pass nowadays as legal literature.'^^ § 83. Construction of Statutes ; Organic Principles of the Pre- scKiPTivE Constitution Conteol. — The American student has long been taught that "however blasphemous, unchristian and immoral a statute may be," still if only it is constitutional it is valid and must be upheld.''^ It has been thoroughly taught that there is but one law higher than a statute, and that is the written constitution ; also, that a statute is constitutional unless the exact word or words of the constitution are pointed out and the extent of the infra §- lion shown. Under these general rules the Codes, Practice Acts and statutes of Amendments and Jeofails must be constitutional, in the absence of interdicting words in the constitution. Accord: ingly many courts have respected the literal expressions of the codes and statutes in question. 68— L.C. 12a, 3 Gr. & Bud. See Theory of the Case, 4 id. 69— See Jlissouri; Theory of the Case; Variance, vol. 4, Gr & Eud 70— Matousek (1905), 192 Mo. 588, 506. ' R /^^qp M^9ni' ^]^^°V' ^^l-f"- ^,^-' ^^^' H°f' -13 Mo. 445, 469; Devoy v. 26'^lo;'66fD'avis?i4Mo%'9'''°"'' '' ''°- '"' '"'^'^' '' ^'°- '''' ^- ^ ^«*^S"' 72— § 174, 1 Gr. & Eud. 73— Eison, L.C. 253; Blair, L.C. 254, 3 Gr. & Eud. IMMUTABLE ELEMENTS G9 But other judges clearly perceived reasons why the broad and all-embracing language of the statutes in question should jiot be upheld. These judges looked beyond the parties named upon the record, and they saw the state — the government — they saw the conserving principles of procedure; among these they saw the requirements of appellate procedure, the necessity for a sufficient record to resist objections upon collateral attack ; also to protect the policies involved in res adjiidicata (Interest reipiib- licce ut sit finis litium) ; also the necessity for the Mandatory record for evincing the requirements of "Due Process of Law"; also the divisions of state power; also constructive notice; also the justification of officers for executing process ; also the neces- sity of observing that leading rule of evidence, "What ought to he of record must be proved by record and by the right record." For all of these uses the Mandatory record appears as a constitutional implication to the judicial mind, and accordingly "the statutes in question are practically nullified. Every decision that limits the statutes in question to formal errors nullifies them and makes of them a reductio ad ahsurdum. In Roman, Norman, English, Federal and the best state decisions the rule is and always has been that formal error was waived unless properly excepted to, preserved in the Statutory record, included in a motion for a new trial and upon this error assigned and argued. Consensus tollit errorem was strictly applied to formal error; in other words, waiver of formal error was strictly favored. Xor were the courts lax about this, as will appear from the decisions. These views are well sustained in Lane, 11 Mo. 408. Xo statute has or could make the courts more favorable to waiving formal error than they always have been. The discussions of Consensus tollit errorem will disclose this fact. Now when courts decide that the statutes in question ^pply only to formal error, the question naturally arises, what have these statutes added to the law? Plainly these statutes are a reductio ad absurdum. From the foregoing exposition it must be obvious that there are deeper principles involved in procedure than many American courts have recognized.'^* 74 Itiflianapnlis R. R. v. Horst, L.C. 223, 3 Gr. & Rnd.: Cagps citerl ; End. Stat. 182' § § 83-123, 1 Gr. & Eiul. (the conserving principles of procedure). "'0 EQUITY IN PEOCEDURE The trilogy of procedure is from the Civil Law ; it is a cognate with that of equity. From Procedure and Equity come prin- ciples that control written constitutions and statutes. Principles . that control kings and parliaments in England and written con- stitutions and statutes in America are the higher law. In prcs- sentia majoris cessat potentia minoris. § 84. The Mandatory Record Is a Constitutional Implication. — It is a necessity for the operation of official action in a consti- tutionalism. To indicate its importance we observe that an assessment for taxation, the levy of the tax, and its collection could not be oral in a government of protection. A statute so declaring would be held void. If possible the record is far more important in judicial procedure. This record cannot be abol- ished nor impaired without destroying the necessity for the conserving principles of procedure.^' Every case that defines the principle Consensus tollit errorent as did the Romans stands for the vindication of the Mandatory record. This record is tlie necessary outgrowth of the trilogy of procedure. Accordingly this trilogy is defended by every deci- sion that sets a limit upon the legislature to prescribe for the judiciary the means of its usefulness in a constitutionalism. Herefrom are seen the rights and duties of the judiciary under the division of state power.''" The broad language of statutes will be restrained for the existence and the operation of the judicial department. The mandatory record is indispensable for the operation of courts^ and it will be protected as a constitutional implication.'^'^ § 85. Collateral Attack Is Provided for by the Code.— The re- quirement that a "cause of action must appear" and that this essential shall not be waived by filing an answer is the way of the trilogy of procedure, which is from the prescriptive con- stitution.'^* Federal cases sustain this view.'^® 75— §§ 83-123, 1 Gr. & Eud. See also, Estoppel; Collateral Attack, id 76— Marbury v. Madison, L.C. 142, 3 Gr. & Eud. et seq.; Lane v. Dorman, 4 111. 238, 36 Am. Dec. 543; Mailers, 170 111. 434; Dennett, L.C. 146, 3 Gr & Eud /ir^S^i'"^P°^i' ,?; ^VtT; ^°J^},' ^■^- 2-^' 3 ^'•- ^ I^"<:1- (statute of jeofails quoted); Bates v. Bulkley (111.), L.C. 225, 3 Gr. & Eud.; C. & A. E E v Clausen Welch 28^Mo^'3o"°'^^°''* ^^^°''^' ^'^' ^^"' ^ ^''' ^ ^"'^•' ^'^^^^' ^^S Mo. 342, 372;' J^vi~t^^ll^^^'''^\^l'^-n-"' \r^'.- ^ '^"'^■5 ^'"^th V. Burrus, 106 Mo. 94, 4 Gr. & Eud. See Theory of the Case ; Variance, 4 Gr. & Bud 9^9 IVr^'f r..''- Po^'ery 6 t'^'ii'^li 221, 4 Gr. & Eud.; TJ. S. v. Cruikshank, L.C. Zifi, 6 Or. & Kud. : Cases cited. IMMUTABLE ELEMENTS 71 To arouse intellectual interest it might be well to ask the sect that insist upon the rule, that the finger must be placed on the word or words in the constitution violated, and "the infraction thereof be pointed out," to name one principle in written constitutions that is worth more to constitutional govern- ment than the trilogy of procedure and the record which it calls for. This record must ever satisfy the rule, "What ought to be of record must be proved by record and by the right record.'^ In the philosophy of law this is the leading rule of evidence, and it should be made prominent and thoroughly impressed. § 86. Law Is the Perfection of Reason.— But only to intellects that understand the two records, and their respective philoso- ])liies; to all others it is a lot of statutes, session acts and con- flicting cases. The philosophy of law is one thing, while its absurdities and incongruities are another. The philosophy of the law is embedded in the prescriptive constitution; this is the organic and paramount law of all ages. The intellect that perceives the state in all the relations of men has the best view of the operation of the maxim In pari delicto potior est conditio defendentis in the law of contract; also, of what constitutes the coram non judice proceeding in the law of procedure. Interest reipublicce ut sit finis litium is a maxim of public policy. For the operation of this maxim the state prescribes the mandatory record. This record is indispensable for the operation of government. This record is a judicial affair; the necessities of this record for the operations of government are not subject to legislative control ; this record is a constitutional implication. Statutes cannot impair nor derogate from it. This record is the record of substance; it is tested by the general demurrer and all its correlatives; it is the record that protects the proceeding founded upon it from the operation of collateral attack. This is the record that evinces the merits of a cause; and the law favors a hearing on the merits, but not on formal matter. § 86a. The Statutory Record Is Not Favored.— It is the record of formal, of dilatory, of abatement matter. This matted is held waived if possible according to the dictates of Interest TZ EQUITY IX PEOCEDUIJE reipuhlicce ut sit finis litium.^" This record involves the matter of the objection, the exception, the motion for a new trial, the exception to the entry of the judgment, the assignment of errors^ the abstract of the record, and the argument of each error assigned. If the motion for the new trial is waived, this waiver carries with it all of the statutory record; likewise the failure to except to overruling of the motion; likewise the failure to except to the entry of judgment on the verdict;®^ likewise if there is no assignment of errors; likewise if each error is not aptly and promptly and precisely assigned f^ and likewise each error not argued is waived. All of the matter of the statutory record is governed by a continuity of reason, emanating from the policy of Interest reipublicce in its operation to speed a cause to its disposition upon its merits; and to this end waiver of formal matter is the policy of the law. Consequently, what is waived is gone forever ; waived matter cannot be recalled, nor restored for a court's consideration ; a court will not entertain formal matter that has been waived. Consequently the assignment of errors is juris- dictional. Interest reipublicce ut sit finis litium. To the matter of the statutory record, that is, to formal or waivable matter, the maxim Consensus tollit errorem is one of leading consequence. As to the matter of the statutory record, the state as a silent third party takes no interest whatever except to favor its disposition by waiver, as already indicated. The presumption is that the judgment of the trial court is correct. Any disturbance of the foregoing matters tends to a disrup- tion of the continuity involved, and also to making the practi- tioner wholly dependent on statutes, decisions and rules of <;ourt. This disturbance, if serious, induces that condition found in the "theory of the case" states. In these states law cannot be said to be the perfection of reason. This is because the courts have not construed statutes to accord with the spirit of the law. Concordare leges legibus est optimus interpretandi ■modus. § 87. Departures From the PhUosophy of the Law; Conse- QUEA-cEs.— Courts that offend the reason of the law destroy the 80— § 103, 1 Gr. & Eud. 81— In some states the last two exceptions are required 82— L.C. 290a-299, 3 Gr. & Eud. lirMTJTABLl-: ELEME^'TS 73 law. They make of it a morass of bewilderment ; and tins tliey do when they ignore fundamental law, and to its exclusion attempt to follow the letter of the statute and their own benighted decisions. They do this when they hold that the return of a sheritf is conclusive; that a record is a verity; that a judgment cannot be attacked for fraud; that the attorney cannot waive original process and enter a general appearance (original process must be served, and rest on the oath of the sheriff ; the oath of the attorney, it would seem, is not equal to that of the sheriff's) ; that the old and long established order of presenting abatement, dilatory or formal matters may be disregarded; that a party maj^ object to service of process after he has waived process of its service f^ that waived matter may be first raised by a motion in arrest; that matter of substance is waived unless presented in a motion of arrest, or non obstante veredicto; that matters subject to objections upon collateral attack may be waived;** that the motion for a new trial is more important in a civil case than it is in a criminal case;*^ that the assignment of errors upon formal matter can be broader than the motion for a new trial as to formal matter; or, in other words, what is not set forth in a motion for a new trial is not waived and gone forever ; that the motion for a new trial is not jurisdictional as to all formal matter; that the assignment of errors is not jurisdic- tional as to all formal matter ; that the policy of the law is more favorable to a review of error in the criminal than in the civil case ; that a court of errors is not bound by the motion for a new trial and the assignment of errors as to formal or waivable matter; that the statutory record controls the mandatory record, in case of contradiction between these two records; and that error shown by the mandatory record will not be noticed unless assigned for error, unless presented in a motion for arrest of judgment, as is provided by statute in Missouri. § 88. Contract Has Its Trilogy Which Is Also of Equitable Origin. — This trio is: 1. Non JuBC in fmdera veni: T difl not pome into this compact. 2. Ex rnido pacta non oritur actio : From a bare agreement arises no ' ' cause of action." 3. In pari delicto potior est conditio defendentis: In equal fault the position of the defendant is preferred. 83 — See Abatement, 2 Gr. & Burl. R4_Sf.e Paris, 126 Mo. 69, 7.'5; Rto. Eq. PL, § If). •i^—See S. V. McCray, 74 Mo. 303. 'ii EQUITY IN PEOCEDUEE § 89. This Trilogy Is the Heart and Vitals of Contract.— Eelating to its maxims are the large and leading discussions of contract.*'' § 90. 1. Non Haec in Foedera Veni.— The law of the assent or mutuality involves the meeting of the minds. One must agree to a contract expressly or impliedly before an obligation exists; contracts cannot be arbitrarily declared and enforced, hence the rule, "Courts cannot make contracts for parties"; parties must make their own contracts.*' There is no greater bulwark of protection written in great charters than is to be found in the maxim, Non hcec in foedera veni. If enforceable obligations could be arbitrarily imposed and judgments entered thereon, the executions and warrants therefrom would lead to the sequestration of property and the deprivation of life and liberty. Consequently appears the fact that the power to enter a judgment is a great and dangerous one, which if exercised without due authority destroys fundamental right and, of course, equity. Accordingly, the principle of the prescriptive consti- tution expressed in Non Jicec is safeguarded with scrupulous strictness. This is well illustrated in suretyship cases, where the rule is, "The principal debtor and the creditor cannot make any change of the contract without releasing the surety." Res inter alios acta. The leading case discussing this point is Rees v. Berrington.^^ There are refined distinctions in contract which should be well impressed. To illustrate: One of these, relating to the element of assent in contract, is, "that a volunteer paying the debt of a debtor to his creditor cannot recover such payment from the debtor," i. e., if A. owes B., and C. without the request of A. pays B., C. is not subrogated to B.'s rights against A.** If C. sued A., C. must aver the payment was made at A.''s "instance and request," and this he could not do. Reasons for this requirement are perceivable in the discussions of Lamp- leigh v. Brathivait, L.C. 301, 3 Gr. & Eud., and in Bartholomew v. Jackson, L.C. 302. In these cases are fine illustrations of the 86— Lead. Cas. 301-417, 3 Gr. & Eud. 87— White V. Corlies, L.C. 303, 3 Gr. & Eud. et sea. 88— L.C. 334a, 3 Gr. & Eud. 89— Durnford v. Jlessiter, 5 M. & S.; cited, Ans. Conts. 209. IMxMUTABLE ELEMENTS 75 law of assent in contract. See, also, Boston Ice Co. v. Potter, L.C. 320: Cases. The original contract contemplated that payment of the de- mand should extinguish it, and such is the etfect of payment by a volunteer. There is not the required assent on A.'s part to make a new contract to pay C. But, if the creditor had assigned the demand to C, then therefrom the required assent would arise. There is a difference between the creditor receiving payment of a claim and assigning a claim. The assignment of a demand is attended with implied warranties which the assignor must have intended; but otherwise by accepting payment. Different con- tracts are involved; the assents are different. So it is that the volunteer paying a debt acquires no rights thereto."" Such are among the refined discussions of Non hcec in faedera veni; also of subrogation, which is an equitable doctrine. § 91. 2. Ex Nudo Pacto Non Oritur Actio.— The considera- tion is as important as is the assent. Its payment is a deter- mining element in many cases, as in the specific performance of contracts and in the equitable exceptions to the statute of frauds ; also in considering the rights of bona fide purchaser.®^ The question of consideration is a great and leading equity. Herefrom are an infinitude of ramifications. Accordingly equity diffuses itself throughout the law; herefrom a great equity is shown to pervade all contracts. § 92. 3. In Pari Delicto Potior Est Conditio Defendentis. — This is one of the maxims of equity, as conceded by Story, Bispham and Pomeroy. Parts of this maxim are, "He who hath done iniquity shall not have equity" ; also, "He who seeks equity must do equity. ' ' In pari delicto is a maxim applied in procedure in defence of the policies of the state indirectly to repress crime and illegality.®^ From this viewpoint we must judge crime to know the contract, and of course the validity of equities thereunder. Authority for classifying this maxim as equitable is readily found in the treatises on equity last referred to. 90— Bering, 2 Gr. & Bud., 23 L. E. A., 120-134, ext. n. 91 Swift V. Tyson, 4 Gr. & Eiul. ; Le Neve v. Le Neve, L.C. 396, 3 Gr. & Eud. 92 Trist t. Child, L.C. 212, 3 Gr. & Eud.; Holman v. Johnson, L.C. 363, et seq., 3 Gr. & Bud. 76 EQUITY IN PEOCEDUKE Equity, in a general sense, includes contract as will appear from the above premises, and contract involves phases of crime. Thus is afforded a view that the law is an entirety. § 93. Agency and Partnership Are Contract Law.— Principles of agency and of partnership are rooted in the principles of contract ; upon a knowledge of the latter depends a comprehen- sion of its parts. For agency a trilogy can be picked, as follows : 1. Qui per aUum facit, facit per se: He who does anything through another is con- sidered as doing it himself. 2. Respondeat superior: Let the principal respond. 3. Qui sentit commodum sentire debet et onus: He who derives the benefit ought to stand the burthen. Each of these maxims is from the Roman law and should be studied in connection with its cognate principles. Each is found in 4 Grounds and Rudiments of Law. § 94. Crime Has Its Leading Principles, and these may be mentioned as a trilogy, thus: 1. Ignorantia legis neminem excusat : Ignorantia facti excusat : Ignorance of law is no excuse; ignorance of fact excuses. 2. Actus non facit reum nisi mens sit rea: Act and intent must concur to constitute crijne. 3. Qui primum peocat ille facit rixam: He who is guilty of the first offense is guilty of the whole strife. § 95. tJbi Jus Ibi Remedium (There is no wrong without a remedy) from the trilogy of equity would fail but for the maxim, Ignorantia legis neminem excusat. Consequently the rule is, Ignorance of law is no excuse. That every one is presumed to know the law lies at the base of enforcing every right. To state this shows that equity is involved. § 96. Mistake Is One of the Leading Heads of Equity Juris- PEUDENCE AND uowhere is the learning of a mistake more interest- ing and instructive than in the discussions of equity. That one voluntarily paying money cannot recover it is founded on the maxim Ignorantia legis. But it is otherwise if the money was paid under a mistake of fact. To illustrate : If an insurance company paid a loss not knowing of further insurance in viola- tion of the policy under which the loss was paid, the under- writers can recover such payment ; and if the loss was paid to an undisclosed agent the underwriters may sue and collect from such agent.a:* And equally instructive are the cases illustrating — v?^~*^°'"™^"^' ^^ ^^°- --^'' I^isbon Bank, 15 N. D. 299, 10 L B A (N S •) Ton it?*' "■' ^'^ ^™' ^*' ^^^' "■ (P^y™™* ^y a drawee bank of a forged check IMMUTABLE ELEMENTS 77 tlie application of the maxim in criminal law. But it is -widely- applied also in equity - Actus nan facit reum is the leading maxim of the criminal law. Qui prhnum peccat ille facit rixam has many interesting dis- cussions in relation to the maxim of remoteness, or proximate cause, -which is expressed thus: In jure non remota causa sed proaima spectaiur (In law the immediate and not the remote cause of any event is considered). This principle is extendedly discussed in the "Squib Case."®^ In pari delicto potior est conditio defendentis, a maxim of contract and of equity, involves discussions of criminal law. From this viewpoint all of these subjects are related. There are cases that bring equity, contract and crime into view. § 97. Tort Has Its Fundamental Principles.— Its trilogy may be stated thus : 1. Alterum non Icedere : We should injure no one. 2. Volenti non fit injuria: That to which a person assents is not in law esteemed an injury. 3. In jure non remota causa sed proxima spectatur: In law the immediate and not the remote cause of any event is regarded. , Altenun non Iccdere is a part of the lawyers' Golden Eule already introduced as the first maxim of equity. § 98. Volenti Non Fit Injuria Is a Maxim of Natural Equity. —One man cannot be made his brother's keeper, except under certain regulations and conditions. In the nature of things one must take care of himself; each must look out for himself; Caveat emptor is the rule in contract law, also in other relations. One may assume risks in the absence of deception and conceal- ment. But if the latter are present, then the rule is, Alterum non Icedere (We should injure no one) from the trilogy of equity. These are matters of endless discussions in the law of negligence, which is a part of tort.''-^ The misfortune one brings upon him- self ought not to be imposed on others. Nothing would be more inequitable and unjust. § 99. Construction Has Its Trilogy.— For brevity it may be said to be : 1. "Lex non exacte definit, ffd arhitrio honi viri permitiit: The law does not define exactly, but trusts in the judgment of a good man. 94 Rfott V. Shepherd, and cognate eases, 4 Gr. & Eud.. Cases cited. c)5 — See Negligence,. 4 Gr. & Eud. 78 EQUITY IN PEOCEDUEE 2. Concordare leges legibus est optimus interpretandi modus: Laws should be made to agree with laws. 3. Eegula pro lege si deficit lex: Where the law is deficient the maxim rules. § 100. Construction Has Strict and Also Liberal Rules, De- PENDENT ON THE Subject-Matteb. — Elsewhere the trilogies of strict and of liberal rules have been introduced.^'' Here the above trilogy is set forth in relation to other leading subjects to indicate the relation of construction to equity. The canons of construction are from the Civil Law of Eome. They are universal principles. Such is Verba fortius accipiuntur contra proferentem (Every presumption is against the com- poser; or, the pleader). A part of this canon is, that he who claims a title or an estoppel of record must allege and prove it ; in other words, estoppels are odious and are strictly taken ; this is a rule of res adjudicata, which was so strictly guarded in Taylor v. Sprinkle, 1 111. 1 (Breeze) ; also in Bates v. BulMey;^'' also in Vallandingham, 17 111. 25; also in Smalley, 19 111. 207. A cognate of Verba fortius is a cardinal rule of evidence, which is, namely, "the burden of proof devolves upon the party who holds the afiSrmative of the issue." This is well expressed in the maxim. Semper prcesumitur pro negante (The presump- tion is in favor of him who denies). From the above it is perceivable that as res adjudicata is a bulwark of defence, so are its rules and their cognates. Thus may be seen a deeper signification of rules of evidence, plead- ing and practice than is usually assigned them. They involve the prescriptive constitution ; and this is organic law from which all branches arise and upon which they depend. From this organic base the law appears as an entirety. This important fact is submitted for consideration upon the foregoing premises. S6—Ante, S§ 47. 68. 97—2 Gilman 359, L.C. 225, 3 Gr. & Eud. PART II CONSTITUTIONAL PROCEDURE (§§ 101-308) At a meeting of the American Bar Association, Franklin M. Danaher arrayed the iacts proving that New York City is filled with graduates of the law schools. He iises these words: "And the deficiencies in pleading and practice ot those who served no clerkship are appalling." — 34 Am. Bar Assn. Rep., 787 (1909). To this Sir Frederick Pollock responded as follows: "This condition does not exist in England. Our lawyers serve clerkships." — Id. 832, James Barr Ames, dean of Harvard Law School, responded, and some of his "words are next quoted: "In England, on the other hand, the bulk ot the mpn who fit themselves for the profession do not talie university courses in law, and, as I am told, those who do attend them are not the best men of the university. One wonders why that should be so. It seems to me that the reason why the English are satisfied not to change their present institutions in the matter of legal education is that somehow or other, of all Jurisdictions administering the English law, the mother country does turn out the best Bench, the best Bar and the best law books. Of course, I think they succeed in spite of the want of legal education at the uni- versities." — 34 Am. Bar Assn. 836, 837. "James Barr Ames was one of the greatest figures in the legal profession. In legal education the United States has for a generation led the English speaking world, as it will for at least a generation to come." — Professor John H. Wigmore, Dean North Western Law School, 4 III. Law Rev. 509. MAXIMS THAT ARE NECESSITIES IN A CONSTITUTIONAL GOVERNMENT The general demurrer, and its correlatives— the motion in arrest» of non obstante veredicto, the order of repleader, objections upon collateral attack and requirements of appellate procedure and for res adjudicata. THE TRILOGY OF STRICT CONSTRUCTION This trilogy governs the mandatory record 1. De Non Appaeentibus et Non Existentibus Eadem Est Eatio: What is not juridically presented can not be judi- cially considered. Chapter V, §§ 102-138. 2. Feustba Pkobatue Quod Phobatum Non Relevat : It is vain to prove what is not alleged. Chapter VI, §§ 140-162. S. Verba Foktixjs Accipiuntuk Contra Proferentem: Every presumption is against a pleader. Chapter VII, §§ 163-189. 79 80 EQUITY m PEOCEDUEE IMPORTANT COGNATES OF THIS TRILOGY 1 Quod ab Initio Non Valet in Thactu Tempokis Non Con- valescit: That which was void at the beginning can not be retrospectively made valid and good. Chapter VIII, §§ 190- 205a. , ^ ^ X- 2. Debile Fundamentum Fallit Opus: Where the foundation fails all goes to the ground. Chapter IX, §§ 206-217. 3. What Ought to Be of Eecord Must Be Proved by Eecoed AND BY THE EiGHT Eecoed. Chapter X, §§ 218-231. 4. Interest EEipuBLiCiE Ut Sit Finis Litium : It is the welfare of the public that there be an end of litigation. Chapter XI,. §§ 232-244. THE TRILOGY OF LIBERAL CONSTRUCTION This trilogy governs the statutory record 1. Consensus Tollit Eeeorem : Acquiescence in error obviates its effect. Chapter XII, §§ 245-269. 2. Omnia Prjesumuntur Eite et Sol,emniter Esse Acta: All acts are presumed to be rightly, regularly and validly done. Chapter XIII, §§ 270-282. 3. Ut Ees Magis Valeat Quam Peeeat : It is better to conserve than to destroy. Chapter XIV, §§ 283-293. § 101. The Trilogy of Procedure, Introductory Observations. ^Lawyership has a place of beginning. The cornerstone of sound lawyership depends upon these three primal things : 1. The distinctions between the mandatory ami the statutory records. 2. The philosophy embecWed in three fundamental maxims from antiquity, relating; to the mandatory record and its matter. (We call this the trilogy of procedure, and seek to impress it.) 3. The philosophy embedded in three fundamental maxims from the Eoman law,, relating to the matter of the statutory record. (We call this the trilogy of liberal construction, and likewise seek to impress it.) The facts will appear showing that all of these essentials have been silted over by empiricism and judicial opinion not founded ' on true principle until the guiding philosophy has been lost; the thread through the labyrinth is unknown, and therefore there has come an inundation of statutes and decisions and their conse- quent brood of digest-cyclopedias and abridgments which are an overtoppling bulk of jargon and contradiction, too unwieldy" for any use, except to show that history repeats itself and that there have returned the conditions that were viewed by CONSTITUTIONAL PEOCEDUEE 81 Justinian, Bacon and Napoleon. Upon sweeping this babel away depends the progress of the lawyer.®^ A leading purpose of this work is to impress and dem- onstrate the above facts, and also afford the means for reform. To this end the student should have the means of finding the few elementary principles from which flows the philosophy to be mastered. Great writers and teachers have long made vague references to this ' ' dogma, ' ' but where have they set it out and made it tangible and comprehensive? The reform of the lawyer demands that he know the familiar maxims, the general principles and the leading cases illustrating them ; and that when the matters of the mandatory record and of the statutory record have to be considered, he consider fhem according to the philosophy involved instead of according to provincial statutes, decisions and rules. If these oppose the philosophy involved, they should be disregarded ; and able courts do disregard them. Multitudo imperitorum perdit curiam. The philosophy of law is inseparable from its utility. For its application it must be reckoned and viewed from fixed moorings or datum posts. The viewpoints we shall offer are from the two records mentioned, and their respective trilogies in the light of the conserving principles of procedure.*® 85 — See 34 Am. Bar Assn. Bep. 787, 832-838; Corpus Juris, Green Bag (Feb., 1910); 70 Central L. J., 294-296, 311-314, 403-407, 455-460; 42 Chicago Legal News, 399-402, 419-420. 86— §§ 83-123, 1 Gr. & Kud.; also. Preface, pp. vii, viii, xvii-xix. CHAPTER V (§§ 102-139) DE NON APPAEENTIBUS ET NON EXISTENTIBUS EADEM EST RATIO : What is not juridically pre- sented can not be judicially decided. Where the court cannot take judicial notice of a fact it is the same as if the fact had not existed. "What ought to he of record must be proved by record and by the right record." There must be a record; a court is bound by its record. § 10, Story's Eq. PI. "Though on the whole record, the right may appear to be with the plaintiff, th» court will not adjudge in favor of such right, unless the plaintiff have himself put his action upon that ground." Steph. PI. 144-145, quoted "post; § 115. Story also states this rule, § 10, Sto. Eq. PI., § 47, ante. A pleader pleads at his peril ;*'^ and a court is bound by its record. Id. A court will not carve out and gather and set up a case for a party.*^* One is presumed to set forth his case in its best light."" § 103. Cognate Maxims and Illustrative Cases: Frustra prohatur quod probatum non relevat (It is vain to prove what is not alleged). Debile fundamentum, fallit opus. Bro. Max. 181, 602, 8th ed. Max. No. VI, post. Verba fortius accipiuntur contra proferentem (Every presumption is against a pleader. Dovaston v. Fayne, L.C. 217, 3 Gr. & Eud.). Maxim No. VII, post. Eushton V. Aspinall, Smith's Leading Cases, 8th eil., L.C. 5, 3 Gr. & Eud. (Omis- sion of material allegation is fatal, and subjects the proceedings to collateral attack.) Jackson v. FesTced, 1 il. & S. 234, quoted Steph. PI. 148. V. S. V. Cruikshanlc, 92 IT. S. 542, L.C. 232, 3 Gr. & Eud. (S.P., Eushton. Conclu- sions of law insufficient.) Bosen v. U. S., 161 V. S. 29, L.C. 92, 3 Gr. & Eud. (S.P., Eushton.) Campbell v. Forter, 162 XJ. S. 478, L.C. £, 3 Gr. & Eud. (Sufficient pleadings are jurisdictional; court will sua sponte notice; either party may object to.) Atten V. Pullman Car Co., 139 U. S. 658 (S.P., Campbell). Slacum V. Fomery, 6 Cranch, 221, 4 Gr. & Eud. (The ground of the general demurrer cannot be waived.) Devine v. Los Angeles (1906), 202 TJ. S. 313-339 ("What ought to be of record must be proved by reconl and by the right record."). Houston B. B. v. Texas, 177 TJ. S. 78 (A reply cannot aid a complaint; the right document in the right record essential). No express aider. 9,7— Clark v. Dillon, 97 N. Y. 370. 87a— James v. Bowman, 190 TJ. S. 127, L.C. 233, 3 Gr. & Eud. g7l3_190 U. S. 540-546; Atlantic Co. v. Benedict Co. (Fla.), 2 Gr. & Eud. S3 84 EQUITY IN PEOCEDUEE Andrews v. Lynch, 27 Mo. 167 (An answer cannot aid tlie statement ot the cause of action. Haskell, 31 ilo. 437). Maskel, 54 CaUf. ^62, L.C. 101, 3 Or. & Eud. MalliJiekrodt, etc. Works v. Aemiiich, 169 ilo. 338, L.C. 12a, 3 Gr. & Eud. (S.P., Slacum, also Campbell; Eushton; conclusions of law insufficient; they are void and cannot be aided. Davis, 126 Mo. 69; Wilson v. Darroui (1909), - — Mo. — ; Eope V. Blair, 105 Mo. 85, 93, 24 Am. St. 366, §§ 448-452. Crockett v. Lee (1822), 7- Wheat. 522-528: Frvstra proiatur quod probatum nan relevat. Allegata et probata must correspond. Allegata indispensable; they cannot be waived. 10 Wall. 303. (P. 526) "The counsel for the appellant says it would be monstrous if, after the parties have gone to trial on the validity of the entry, and nave directed all their (p. 527) testimony in the circuit court to that point, their rights should be made to depend in the appellate court on a mere defect in the pleadings, which had entirely escaped their observation in the court where it might have been amended, and the non-existence of which would not have ' varied the case. ' ' ' Allegations essential to confer jurisdiction. "The hardships of a particular case would not justify this tribunal in prostrating the fundamental rules of a court of chancery; rules which have been estab- lished for ages, on the soundest and clearest principles of general utility. If the pleadings in the cause were to give no notice to the parties or to the court of the material facts on which the right asserted was to depend, no notice of the points to which the testimony was to be directed and to which it was to be limited; if a new case might be mLde out in proof differing from that stated in the pleadings, all will perceive the confusion and uncertainty which would attend legal proceedings, and the injustice which must frequently take place. The rule that the decree must conform to the allegations as well as to the proofs of the parties, is not only one which justice requires, but one which necessity imposes on courts. We cannot dispense with this in this case." — Marshall, C.J. See also Story's Eq. PI., 10, 28. Jurisdiction is limited by the pleadings ; what is not alleged a court cannot consider and pass upon. De non apparentibus et non existentibus eadem est ratio. It is vain to prove what is not alleged."'^ Allegations, admissions, denials and issues must appear from the right record.*''* Clark V. Dillon, 97 N. Y. 370 (S.P. Institute, 87 N. Y. 250; U. S. v. CruiTcshanTc ; Bush V. Brown, 101 Mo. 486; Mallinekrodt ) . Bowen v. Emerson (1869), 3 Oreg. 452, Hinton's Code Cases, 8. Contra: Allen v. Patterson, 7 N. Y. 476, 57 Am. Dec. 542 (Common counts, how far permissible). Smalley v. Mdey, 19 111. 207 (reaflErms Be non), likewise, Adams v. Gill 158 111 190-196; Fish v. Cleland, 33 111. 238, L.C. 12c, 3 Gr. & Eud., et seq. Allegations are jurisdictional; allegata et probata must correspond; variances, departures are fatal. Kenealy, 241 111. 15. , • Crepps V. Burden, Smith's Leading Cases, L.C. 113, 3 Gr. & Eud., et seq. (Superior and inferior courts; presumptions). Doddridge v. Paterson 999 Mo 146- Cases. Cf. Mice v. Travis, 216 111. 249. ' "~ " ' § 104. There Are Two Trilogies to Impress Upon the Prac- titionee; (1) the trilogy of procedure or of strict construction, which is : 200 fn^TSn'pl* Olarshall C.J.); Washington E. E. v. Bradleys (1869), 10 WalL 299, 303, Sto. PI., § 10; see Consensus; S. t. Muench, 217 Mo. 138, 129 Am. St. 536. 87d— Munday v. Vail, L.C. 79, 3 Gr. & Eud. DE NON APPAEENTIBUS 85 1. De non apparentibus ei non existentibus eadem est ratio: What is not jurulically presented cannot be jiulieially decided. There must be a record, and a court is bound by its record. Sto. Eq. PI. S 10, 4 Gr. & Eud., title Story; Campbell v. Por- ter, 162 U. S. 478, L.C. 2, 3 Gr. & Eud. ; U. S. v. Cruikshank, 92 U. S. 542, L.C. 232, 3 Gr. & Eud.; Vallandingham, 17 111. 25; Smalley, 19 III. 207; Fish, 33 III. 238, L.C. 12c, 3 Gr. & Eud.; Adams, 158 III. 190, 2 Gr. & Eud.; Bushton v. As- pinall, Smith's Lead. Cas., 8th ed., L.C. 5, 3 Gr. & Eud.; Slacum, 6 Craneh (U. S.), 221 (Marshall, C.J.) ; Crockett v. Lee, 7 Wheat., 522, 526-527; Charles V. White, 214 JIo. 187, 21 L. E. A. (N. S.) 481: Cases. 2. Frustra probatur quod probatum non releiat : It is vain to prove what is not alleged. See authorities, supra. The evidence must correspond with the allegations and be confined to the point in issue. 1 Gr. Ev. 51, 63, 65; Bristow V. Wright, Smith's Lead. Cas., 8th ed., L.C. 135, 3 Gr. & Eud., et seq. Crockett supra. 3. Verba fortius accipiuntur contra proferentem : Every presumption is against a pleader. Dovaston v. Payne, Smith's Lead. Cas., 8th ed., L.C. 217, 3 Gr. & Eud.; Story's Eq. PI. 665; U. S. v. Linn, 1 How. (U. S.) 104; Stephen v. Beall, 22 Wall. 239; V. S. v. Cruikshank, supra; 196 TJ. S. 395; Davenport, 2 111. 315. L.C. 2f, 3 Gr. & Eud.; Halligan, 15 111. 558; Mailers, 170 111. 434. (Bill of ex- ceptions. ) Codes reaffirm all these principles. See Codes, 2 Gr. & Eud.; Mallinckrodt, 169 Mo. 388, L.C. 12c, 3 Gr. & Eud.; Green v. Palmer, L.C. 90, 3 Gr. & Eud.; S. v. Muench. 217 Mo. 124, 129 Am. St. 536-547; Swing, 78 Ark. 246, 115 Am. St. 38; Jones V. Monson, 137 Wis. 478, 129 Am. St. 1082-1129. From the above arises the rule : "What onght to be of record must be proved by record and by the right record." Chap. X, post; Hope v. Blair, 105 Mo. 85, 93, 24 Am. St; 366. Also this definition of Pleading : ''Pleadings are the juridical means of investing a court with jurisdiction of a sub- ject-matter to adjudicate it." §§ 163, 273, 1 Gr. & Eud.; Hope v. Blair, supra. § 105. Cognates of This Trilogy Are: 1. Expressio unius est exclusio alterius: The express mention of one thing is to the exclusion of all others. Marbury v. Madison, L.C. 142, 3 Gr. & Eud., et seq. 2. Allegata et probata must correspond. Bristow v. Wright, L.C. 135, et seq. A recovery must be secundum allegata et probata; Fish, 12c, 3 Gr. & Eud. 3. Quod ab initio non valet in tractu temporis non convalescit : That which was originally void does not by lapse of time or by waiver become valid. Windsor ■c. McVeigh, L.C. 1, 3 Gr. & Eud.; 69 Cent. L.J. 443-447. 4. Interest reipublicce ut sit finis litium : It is the welfare of the public that there be an end of litigation. Mariott v. Hampton, Smith's Lead. Cas., 4 Gr. & Eud. See Bes Adjudicata and its requirements, §§ 171-200, 1 Gr. & Eud.; also the rules of this subject gathered, 4 Gr. & Eud. See also. Chap. 1, §§ 83-123, 1 Gr. & Eud.: The conserving principles of procedure. 5. Nemo debet bis vexari pro una et eadem causa: No man shall be twice vexed for one and the same cause. The maxim is a part of the former one. Vallanding- ham, 17 111. 25; Kenealy, 241 111. 23; Hope v. Blair, 105 Mo. 85, 93, 24 Am. St. 366. (Able statement of rule). See §§ 448-452 post. <6. Courts are organized to redress wrongs. Therefore a wronged person, a wrong described, also a wrongdoer must be juridically presented. See Fabula non judi- cium, 2 Gr. & Eud. Bulkley, 77 Mo. 105 (Allegations relating to the wronged person are formal objections under "our Code," and may be waived). See §§ 454-457 post. § 106, The Trilogy of Procedure or of Strict Construction Applies to the Mandatoey Recokd. — This record is a necessity dn the due administration of the laws (CrocJcett v. Lee); upon 86 EQUITY IN PEOCEDUEE this record depend the conserving principles of procedure ; this is the jurisdictional record that is required from public policy^ and which cannot be dispensed with. Upon it are stated the jurisdictional facts, the "cause of action," or the "facts consti- tuting the defence." The substance, which is the authority to procee.d and adjudicate, must appear from the mandatory rec- ord. The state — the third party to the judgment contract- demands this. It cannot be dispensed with. By and upon this record depends the validity of the proceedings ; these must stand certain tests to pass as coram judice. Jurisdictional facts are a public policy concern. § 107. The Trilogy of Liberal Construction, the second, trilogy above mentioned, is : 1. Consensus tollit errorem: The acquiescence in error obviates its effect. Jj.C.'s 290a-299, 3 Gr. & Eud. The matter this maxim governs is not substance, but is formal matter, or matter which concerns two only. 2. Omnia prwsumuntur rite et solemniter esse acta: All acts are presumed rightfully,. regularly and validly done. Crepps v. Burden, L.C. 113, 3 Gr. & Bud., et seq. 3. JJt res magis valeat quam pereat: It is better to conserve than to destroy. Mc- Culloch V. Maryland, L.C. 147, 3 Gr. & Eud. § 108. The Trilogy of Liberal Construction Also Has Its Cog- NATES ; Among These Abe : 1. Expressio eorum quce tacite insunt nihil operatnr: Things implied need not be mentioned. M'CuHoch v. Maryland, L.C. 147, 3 Gr. & Bud. 2. Concordare leges legibus est optimus interpretandi modus: To make laws agree ■with laws is the best mode of interpreting them. L.C. 's 215-232, 3 Gr. & Eud. ; S. ex rel. Eenson v. Sheppard, 4 Gr. & Bud. 3. Lex non exacte definit sed ariitrio boni viri permittit : There is always something- left to the judgment of a wise and good man. 4 Gr. & Eud. 4. Frobatis extremis prwsumuntur media: The extremes being proved, the inter- mediates are presumed. Quinian, 205 TJ. S. 504. 5. Verba intentione debent inservire : Words are construed according to the in- tention. Barron v. Baltimore, L.C. 241, 3 Gr. & Bud.; Howard v. Harris (once- a mortgage always a mortgage). § 109. Coke 's Three Degrees of Certainty Incompatible With. THE Teilogy of PEOCEDrKE.— These degrees are discussed in J 'Anson v. Stuart. ^'^^ The operation of variant and fluctuating rules of construction simply amounts to this : that at one stage- the trilogy of procedure (or of strict construction) is applied,, while at a later the trilogy of liberal construction is applied. Herein are the fountain-heads of the "theory of the case"** and of the elimination of the government as a third and silent 217 E:if83-V^4,'lt'"/Gr.l"Eud ' ''■' ^■'- ''' ' "^^ ^ ^^'■■' ^°^-'-' ^•^' 88— 4 Gr. & Eud. DE XOX APPAEENTIBUS 8r party in procedure, together with the conserving principles of procedure (§§ 83-123, 1 Gr. & Eud.). The absurdity of applying to the identical words strict rules of construction here, and liberal rules there, and anything the litigating parties want and will consent to yonder, is manifest. Such a proceeding is antago- nistic to the necessities of a constitutionalism.*" To support this conclusion the trilogy of procedure is offered with its attending citation and corollaries. Therewith are cited the Rushton, Bris- tow and Dovaston cases.^" § 110. Coke's Rules; Consequences; Tribal Laws; Universal Bewildeement. — The trilogy of procedure can be picked from •Story's Equity Pleading.®^ These are a paraphrase of Lord Eedesdale, and also of Bacon's maximized rules for the govern- ment of the High Court of Chancery. Thus can be traced the Eoman principles in our law ; also the fact that these principles- have been sheltered and fostered in equity. But in law it is far otherwise. The common-law authors and courts have not under- stood res adjudicata, its maxims, its necessitous record and de- pendent rules. They made war on Bacon, Mansfield and Mar- shall for their recognition of the civil law. They have never understood Rushton, Bristow or Dovaston ; in other words, the trilogy of procedure. Neither Blackstone, Chitty, Stephen nor Gould rightly understood these matters. Both the states of Mis- souri and Illinois have constantly cited and closely followed these supposed great authorities, and they are as far apart as hostile tribes ; indeed in their own states there are warring divisions of the same court and implacable chiefs of mutual distrust.®^ In one case they patch out with implied aider ; in another by express aider; and when this can not be done they fall back on theory of the case.^* Codes are equity; wherein there is no express waiver.®-* Nevertheless the common-law absurdity guides in construction.*"*^ 89— Crockett r. Lee, 7 Wheat. 522. 90— L.C. 5, 135, 217, 3 Gr. & Eud. 91 §§ 10 "8, 665; see Story, 4 Gr. & Eud.; § 47 ante. 92 See Balsewiez, 240 111. 238; S. v. Fasse, 189 Mo. 532; Pennowfesky, 205 Mo. 135; also Tllinois, 2 Gr. & End.; Missouri, 4 id.; Preface, 3 id. ' 93_!.g]ack, 9 Pick. 62 (express waiver; quoted and followed); Garth, 72 Mo., 622 630; Hughes, 90 Mo. 399, 402 (express aider); Bliss Code, § 437; Steph. PI. 149 (aider). 94 — 8 10, Sto. Eq. PI. 95_Berger-KDOx (1910), — Mo. Ap. — . Cf. pp. 144, 14.5, 147, 150, Steph. PI.; Chapter X, 1 Chit. Pleading. S8 EQUITY IN" PEOCEDUEE Examine the wabbly and erratic decisions of these states, and contemplate their near-by overtoppling output of law. The Year Books ceased in 1536 ; will the illimitable bulk of state decisions survive 1936? Already the digests and cyclopedias presenting the jargon from these reports exceed human capacity, and are referred to in popular journals as a "legal jungle. ' ' Throughout these long and unending lines, and throughout the "legal jungle," Blackstone, Chitty, Stephen and Gould are constantly cited, but rarely are Broom's Maxims, Smith's Leading Cases or Mansfield's decisions referred to ; not even those that brought order out of chaos in England. Fundamental principles are constantly referred to, but the maxims are either excluded or denounced. To illustrate these facts follow the citations of RusMon, Bristow and Dovaston through Chitty, Stephen and Gould; in other words, examine these works for an explication of each principle of the trilogy of procedure, and see what may be found therefrom. In the last edition of Gould (1910) the rule in Dovas- ton is emphasized as the ' ' MODEEN EXILE. ' ' But is it not also the ancient, uniform rule in the English and the federal courts?^® All of these works abound with equivocal, incompatible and mis- leading statements. The citation matter of these works should not be commended. The old abridgments, cyclopedias and digests are practically inaccessible, and, moreover, such works have always proven ephemeral. In the light of the maxim, of Bacon, Mansfield, Marshall, Kent, Story and the language of the Code, it is wrong to impress old, necessary and uniform rules in all respectable juridical establishments, as "modern rules. "^'^ The discussions of the principles above referred to are not unlike the wrangles of warring expert witnesses, or the endless discussions of Shelley's Case. In these discussions all things are written for all men. In all these tremendous discussions the true definition of pleadings and of the mandatory and the statu- 96— Linn v. TJ. S., 1 How. 104; Stephen v. Beall, 22 Wall. 2"^, 239- 190 TJ S. 540, 546; V. S. v. Crnikshank, L.C. 232, 3 Gr. & Eua., et seq. 97— See also And. Steph. PI., § 230, cases (equivocal quotations of Chitty, etc.) ; Andrews v Lynch, 27 Mo. 167; Bush v. Brown, 101 Mo. 486; Mallinekrodt, L.C. ^II'.^^Ia *.?"<^1-; ^^"^^ ^- Mlon, 97 N. Y. 370; Jones, 137 Wis. 478, 129 Am. St. 1082-1129 citing Emerson v. Nash, 2 Gr. & Bud. (It is assumed that the code has introduced new rules.) DE XOX APPAEENTIBUS S9 tory records, and of "due process of law," of jurisdiction and of the conserving principles of procedure cannot be found clearly defined nor comprehensively taught. To justify these conclu- sions reference is made to the common-law works above referred to. From the facts found herein, it is time that the lawyer's attention be plainly called to the condition of his literature and its effect upon the noblest profession.^* The sole test is, "Will the language used permit of a reason- able construction which will sustain the pleading!" Emerson v. Nash. Failure to observe the force of this rule and the extent of the change wrought by the code results in a waste of energy of counsel, useless expense to clients and to the public. "^'^ It is misleading to discuss old and long established maxims as the "modern rule," and the old and well known plans of digests and cyclopedias as recent discoveries and as newly de- vised and individualistic systems of private monopoly and owner- ship. Such indefensible claims and the clamorous advertising founded thereon mislead thousands who have come to hold hope- less and f orboding views as to juridical progress. Popular jour- nals at last discuss the impediments to a knowledge of the law. Authorities that wabble around and slough over the prin- ciples of the prescriptive constitution have irreparably injured the jurisprudent. Such are the lights of Coke.^ From the above causes, befogging and pernicious litera- ture is widely published and sold. It is due the young bar to make plain statements as to those matters and therefore we quote in the note an excerpt of importance.^'' § 111. The Integrity of the Philosophy of the Two Records, THE MAlifDATOEY AND THE StaTTTTOEY EeCOEDS, EeSPECTIVELY, Is Untouched by Statutes. — The philosophy of the mandatory 98 — gee Preface, 1 Gr. & Bud.; also the Green Bag (Feb., 1910); Literary Digest (Feb. 26, 1910). " 99— Jones v. :\roiison, 137 Wis. 478, 129 Am. St. 1082-1129. (It is assumed the code has established a new rule.) 1 — See Variance, 4 Gr. & Bud. la — "Books are widely advertised as the student's guide and counsellor and proclaimed as the ne plus ultra effort of a multitude of professors in leading colleges, and yet they never cite nor discuss one fundamental. Frequently, the greater portion of sneh books consists of matter garbled from an ordinary catalogue and the remainder is composed of a pad of inferioi' rules, together with a series of attacks on works that are not developed on the same plan. The ^publishers of such books seem to pervade their whole output with an air of something new or modern or American and the buyer is often deceived thereby." I. W. Foltz: Chicago Legal Kews, also: Chicago Law .Journal. DO EQUITY IN PEOCEDUEE record is articulated by the general demurrer and its correla- tives, the motion in arrest, non obstante veredicto, the order of repleader, objections upon collateral attack and the require- ments of the coram judice proceeding to sustain the claim of res ■adjudicata. These various matters may be said to be the founda- tion of the philosophy of the mandatory record.^ The statute that encroaches upon and disturbs one of these matters as they were set by the Eoman, encroaches upon and disturbs each of them. The philosophy of the statutory record is also articu- lated by its vertebras, which may be called the objection, excep- tion, motion for a new trial, the assignment of errors, the abstract of record, and the argument of each error assigned. If one of these matters is abandoned, then this abandonment oper- ates as a waiver of what relates to such error at all its antecedent stages.^ One abandons all matters in the statutory record if he fails to assign error; likewise if he fails to file a motion for a new trial. A court will open and look into the statutory record only as it may be required to do by the assignment of errors. In other words, the statutory record is waived and abandoned, if no errors are properly assigned ; likewise unless properly presented for review to an appellate court of errors, and likewise argued. 'The law favors a waiver of all the matters contained in the statutory record. Interest reipublicce ut sit finis litium. § 112. Fundamental Principles Neglected and the Resulting Appalling Condition.* — Procedure founded on statutes, cases, digests, cyclopedias and abridgments is one thing, while if it is -written from the prescriptive constitution, it is another. EuleS discussed in the light of great principles are matter very unlike a gathering of excerpts from forensic hustings, and arguments of counsel presenting the "fine points" of their particular cases. Whether or not most of our legal classics are constituted of the matter last referred to, may well be called in question at this time, for it now concerns the noblest profession and its annual gains of 5000 members each year. There are various ways of gathering and citing matter. Coke's way caused Bacon to call hun the "huddler." But those who have most approved Coke are legion. Far too many authors are very equivocal and even 2 — Quod ab initio non valet intractu temporis non convaleacit, Cliap. VIII. 3 — Consensus toltit errorem. 4—34 Am. Bar Ass'n. Kep. 787, 836. DE XOX APPAREXTIBUS 91 doubting wlien they should speak plainly, boldly and pointedly from principle ; and what the principle is should be cited for note matter.'' These authors fail to cite and to refer to the principles they are in fact discussing. Their writings fail to show that they understood the grounds and rudiments of law. Where this is not done, there the idea gets a footing that procedure is a local and provincial subject. No doubt the reader will conclude that we have in view Chitty, Stephen and Gould. From what we shall observe of pages 140-153 (5th American ed.), Stephen's Pleadings, it may be judged whether we are justified in the above conclusions. By the pages referred to, in the light of the note matter we have added, we shall submit questions of much interest to the jurisprudent. To this end we will quote the text upon the pages referred to, omitting Stephen's note matter and therefor adding our own, except where otherwise indicated. Thus will appear how great principles and cases can be cited. The paragraph headings are also ours. With these exceptions Ihe pages referred to are as follows: ExcEKPTs From Stephek's Pleadings § 113. Demurrers Are General and Special.— The former applies to substance and the latter to formal matters. And herein are involved the matters of the two records, the mandatory and statutory; herefrom arise two philosophies, pervaded respectively by the trilogy of strict and of liberal con- struction. From these it appears that substance is essential for the coram judice proceeding and cannot be waived. Interest reipublicce. The rule that the general demurrer searches the record means what it says. This rule is incompatible with Chitty 's views of aider. Whether Stephen had clear views of the two records, of substance and of formal matter, of the two trilogies of organic procedure, may be judged from the following quotations : "(p. 140) * * * A ilemnrrer, as in its nature, so also in its form, is of two kinds: it is either general or specials A general demurrer excepts to the suffi- ciency in general terms, without showing specifically the nature of the objec- 5 ggg obserrations on Coke and Blackstone, Chapter I, Gr. & Eud. ; also on Judge Seymour D. Thompson and other authors in relation to the titles Variance, and Theory of the Case and the "puzzles" therein referred to. 4 Gr. & Eud. fi J 'Anson v. Stuart, Smith Lead. Cas. 92 EQUITY IN PEOCEDUEE tion;f a special demurrer adds to this a specification of the particular ground of exception." "Of both these forms, the reader has already had examples in the first chapter. A general demurrer is sufScient, where the objection is on matter of substance.' A special demurrer is necessary where it turns on matter of form only; that is, where, notwithstanding such objection, enough appears to entitle the opposite party to (p. 141) judgment as far as relates to the merits of the cause. For,, by two statutes, 27 Eliz. c. 5, and 4 Ann. c. 16, passed in a view to the discour- agement of merely formal objections, it is provided, in nearly the same terms, that the judges 'shall give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission, defect, or want of form, except those only which the party demurring shall specially and particularly set down and express, together with this demurrer, as causes of the same ; ' the latter statute adding this proviso, ' so as sufficient matter appear in the said pleadings, upon which the Court may give judgment according to the very right of the cause." Since th^ise statutes, therefore, nO' mere matter of form can be objected on a general demurrer; but the demurrer- must be in the special form, and the objection specifically stated. But, on the other hand, it is to be observed, that, under a special demurrer, the party may on the argument not only take advantage of the particular faults which his demurrer specifies, but also of all such objections in (p. 142) substance, or regarding 'the very right of the cause,' (as the statutes express it,) as do not require, under those statutes to be particularly set down. It follows, therefore,, that unless the objection be clearly of this substantial kind, it is the safer course, in all cases, to demur specially. With respect to the degree of particularity, with which, under these statutes, the special demurrer must assign the ground of objection, it may be observed, that it is not sufficient to object, in general terms,, that the pleading is 'uncertain, defective, informal,' or the like; but it is neces- sary to show m wliat respect, uncertain, defective, or informal." The concluding words, therefore, in the example formerly given, 'And also that the said declara- tion is, in other respects, uncertain, informal, and insufficient,' though (p. 143) these, or some others of similar import, are usually added, are inoperative and useless. ' ' § 114. Admission of Facts by Demurrer.— By demurring, the facts alleged are admitted, until the demurrer is disposed of. "With respect to the effect of a demurrer,— it is first, a rule, that a demurrer admits- all such viatters of fact as are sufficiently pleaded. The meaning of this ru]& is, that the party having had his option whether to plead or dei)iur, shaU be taken in adopting the latter alternative, to admit that he has no ground for denial or traverse ;ii which (as formerly shown) is one of the kinds of pleading. A demurrer is consequently an admission that the facts alleged are true ■ and there- fore the only question for the court is, whether, assuming such facts' to be true they sustain the case of the party by whom they are alleged 12 It will be observed, however, that the rule is laid down with this qualification that the matter of fact be sufficiently pleaded. For, if it be not pleaded in a formal and sufficient manner, it is said that a demurrer in this case is no admission of the- fact. But this IS to be understood as subject to the alterations that have been introduced into the law of demurrer by the statutes already mentioned; and. therefore if_ the demurrer be general, instead of special, it amounts, as it is said to a confession, though the matter be informally pleaded " 7— A court sua sponte examines its record, and takes notice of its jurisdiction exactly as the attorney m fact looks at his power of attorney Sto Ea PI S 1 n'' See Dictum. ■' " " H- -^ • « ■^"- 8-Substanee may be inquired after at any time and in any way. Slacum v Pomery, 4 Gr. & Bud. It cannot be waive.l. Sto. Eq. PI S in- TJ s v T inn 1 How. 104. ^ J-, s J-u, u. to. V. i^mn, 1 S—See Consensus tollit errorem ; Bro. llax. 136, 137, Quoting Stenh PI ■ nl«rv ia;nd'Eep%2w"' ''"°°* ""' """"'' "^'^^ J^^^^o^ v Peskel)" "i' 'wms! lO-Same rule under Code, Kroner, L.C. 299, 3 Gr. & Bud. This was the old law ; statutes have merely reaffirmed it. Consensus. 11 — AUegans contraria non est audiendus. 12 — Whether they constitute a ' ' cause of action. ' ' DE NOiSr APPAEENTIBUS 93 § 115. The General Demurrer Searches the Whole Record and [A.TTACHES TO THE FiRST FaTJLT OF SuBSTANCE. (p. 144) "Again, it is a rule, that on demurrer, the court will consider the whole record, and give judgment for the party who, on the whole, appears to he entitled to itM Thus, on demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant but the plaintiff, provided the declaration be good; but if the declaration also be bad in substance, then, upon the same prin- ciple judgment would be given for the defendant.i* This rule belongs to the general principle stated in the first chapter, that when judgment is to be given, whether the issue be in law or fact, and whether the cause have proceeded to issue or not, the court is always bound to examine the whole record, and adjudge for the plaintiff or defendant according to the legal rights, as it may on the whole appear. It is, however, subject to the following exceptions: First, if the plaintiff demur to a plea in abatement, and the court decide against the plea, they will give judgment of respondeat ouster, without regard to any defect in the dec- Iaration.i5 Secondly, though on the whole record, the right may appear to be with the (p. 145) plaintiff, the court will not adjudge in favor of such right, unless the plaintiff have himself put his action upon that ground.i8 Thus, where, on a covenant to perform an award, and not to prevent the arbitrators from making an award, the plaintiff declared in covenant, and assigned as a breach, that the defendant would not pay the sum awarded. — and the defendant pleaded that, before the award made, he revoked, by deed, the authority of the arbitrators, to which the plaintiff demurred — the court held the plea good, as being a sufficient answer to the breach alleged, and therefore gave judgment for the defendant: although they also were of the opinion that the matter stated in the plea would have entitled the plaintiff to maintain his action, if he had alleged, by way of breach, that the defendant prevented the arbitrators from making their award.isa Lastly, the court, in examining the whole record, to adjudge according to the apparent right, will consider only the right in matters of substance; and not in respect of mere form, such as should have been the subject of special demurrer. Thus, where the declaration was open to an objection of form, such as should have been brought forward by special demurrer, — the plea bad in substance, — and the defendant demurred to the replication, the court gave judgment for the plaintiff in respect of insuflSciency of the (p. 146) plea, without regard to the formal defect in the declaration. "1? § 116. The Ground of the General Demurrer Is Never IWaived; It Will Kjeep. — There must be a sufBcient statement of a cause of action or of defence. Dehile fundamentum fallit opus. 13 — This is destructive of the "theory of the case." See this subject, 4 Gr. & End. 14 — tr. S. V. Linn, 1 How. 104. 15 — ^Abatement or dilatory matter has nothing to do with a judgment on the merits. 16 — Courts are bound by the record; they will not make cases for parties. Kraner, L.C. 299, 3 Gr. & End.; Sto. Eq. PI. § 10; Quod db initio. The statement (complaint or petition), shall state a "cause of action." Andrews v. Lynch, 27 Mo. 167. The theory of the case advocates have not understood the author's expressions. Cf. His. p. 147, 150. 16a — Be non apparentihus et de non existentibus eadem est ratio: What the plaintiff did not plead he could not recover on. There is no "theory of the case" liere. J7 Jnterent reipubJicm vt sit finis litiuw : See p. 143 ante: also Consensus tollit crrorem. Any other course would be absurd, and would offend both common sense and fundamental principles as well. But these were omitted by Blackstone, Chitty, Gould Stephen and their followers. Their horizons wero not beyond Coke 's, who viewed the law as provincial. 94 EQUITY m PEOCEDUEE "Next is to be consideied, the effect of pleading over without demurrer. It has been shown that it is the effect of a demurrer to admit the truth of all matters of fact sufficiently pleaded on the other side; but it cannot be saiil e converso, that it is the effect of a pleading to admit the sufficiency in law of the facts adversely alleged. On the contrary, it has been seen that, upon a demurrer arising at a subsequent stage of the pleading, the coiirt will take into consideration, retrospectively,, the sufficiency in law of matters to which an answer, in fact, had been given. And in the first chapter it was shown that even after an issue in fact, and verdict thereon, the court are bound to give judgment on the whole record, and therefore to examine the sufficiency in law of all allegations through the whole series of the pleadings; and accordingly, that advantage may often be taken by eitlier party of a legal insufficiency in the pleading on the other side, either by motion in arrest of judgment, or motion for judgment non obstante veredicto, or writ of error, 'according to the circum- stance of the case. ' ' 'is § 117. A Response Pleading May Aid an Antecedent Plead- ING.— (p. 147.) "It thus appears, then, that in many cases, a party, though he has pleaded over without demurring, may, nevertheless, afterwards avail himself of an insuffi- ciency in the pleading of his adversary. But this is not universally true. For, first, it is to be observed, that faults in the pleading are, in some cases, aided iy pleading over. Thus, in an action of trespass, for taking a hook, where the plaintiff omitted to allege in the declaration that it was his hook, or even that it was in his possession, and the defendant pleaded a matter in confession and avoidance, justifying his taking the hook out of the plaintiff's hand, — ^the court, on motion in arrest of judgment, held, that as the plea itself showed that the hook was in the possession of the plaintiff, the objection, which would otherwise have been fatal, was cured.is And, with respect to all objections of form, it is laid down as a general proposition, 'that if a man pleads over, he shall never take advantage of any slip committed in the pleading of the other side, which ie could not take advantage of upon a general demurrer.20 Again, it is to be observed, that faults in the pleading are, in some cases, aided by a (p. 148) ■verdict.^''- Thus if the grant of a reversion, a rent charge, and advowson, or any other hereditament which lies in grant, and can only by conveyed by deed, he pleaded, such grant ought to have been alleged to have been made by deed; and if not so alleged, it will be ground of demurrer: but if the opposite party, instead of demurring, pleads over, and issue be taken upon the grant, and the jury finds that the grant was made, the verdict aids or cures the imperfection in the pleading; and it cannot be objected in arrest of judgment or by writ of error. The extent and principle of this rule of aider by verdict, is thus explained in a modern decision of the Court of King's Bench: " 'Where a matter is so essentially necessary to be proved, that had it not been given in evidence, the jury could not have given such a verdict, there the want of stating that matter in express terms in a declaration, provided it contains terms sufficiently general to comprehend it in fair and reasonable intendment, will be cured by a verdict; and where a general allegation (p. 149) must, in fair construction, so far require to be restricted, that no judge and no jury could have properly treated it in an unrestrained sense, it may reasonably be presumed, after verdict, that it was so restrained at the trial.' "In entire accordance with this, are the observations of ilr. Sergeant Williams: 18 — A writ of error can be waived. But objections that can be raised upon collateral attack cannot be waived. See Aider, Text-Index. 19 — Cf. § 10 Sto. Eq. PI. Quod db initio non valet intractu temporis non eon- valescet. 20 — This is true as to the special but not the general demurrer. 21— "Glasscock v. Morgan, Sid. 184, cited Bac. Ab. Trespass, p! 603. Per Holt, C. J. Anon, 2 Salk. 519; Bac. Ab. Pleas, etc., 322." Cf. pp. 144-145, 150, ante. DE NOX APPAEENTIBUS 95 " 'Vriiere there is any defect, imperfection, or omission in any pleading, wlietlier in svibstance22 or form, which would have been a fatal objection upon cfemurrer,23 yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission, is cured by the verdict. ' 1 Wms. Saund. 228, n. 1.2* "It is, however, only where such 'fair and reasonable iutendement' can be applied, that a verdict will cure the objection; and therefore, if a necessary allegation be altogether omitted in the pleading, or if the pleading contain matter adverse to the right of the party by whom it is alleged, and so clearly expressed that no reasonable construction can alter its meaning, a verdict will not aid.25 Therefore, where the plaintiff brought an action (p. 150) of trespass on the case, as being entitled to the reversion of a certain yard and wall, to which the declaration stated a certain injury to have been committed, — but omitted to allege that the reversion was, in fact, prejudiced, or to show any grievance, which in its nature would necessarily prejudice the reversion, — the court arrested the judgment, after a verdict had been given in favor of the plaintiff and held the fault to be one which the verdict could not cure.26 Lastly, it is to be" observed, that at certain stages of the cause, all oljections of form are cured iy the different statutes of jeofails and amendments;^'' the cumulative effect . '^]^^p^ ^s t° provide that neither after verdict, nor judgment by confession, nil dicit, or non sum informafus, can the judgment be arrested or reversed by any objection of that kind. Thus in an action of trespass, where the plaintiff omits to allege in his declaration on what certain day the trespass was committed (which is a ground of demurrer), and the defendant instead of demurring, pleads over to issue, and there is a verdict against him, the fault is cured by the statutes of jeofails ;28 if not also by the mere fact of pleading over. "29 § 118. Election to Demur or to Plead; Considerations of. "It will now be useful to examine the considerations (p. 151) by which, in a view to the state of the law, as above explained, the pleader ought to be governed, in making his election to demur or to plead. "He is first to consider whether the declaration, or other pleading opposed to him, is suf5cient in substance and in form to put him to his answer.so If suffi- cient in both, he has no course but to plead. On the other hand, if insufficient in either, he has ground for demurrer ; but whether he should demur or not, is a question of expediency, to be determined upon the following views. If the pleading be insufficient in form, he is to consider whether it is worth while to take the objection, recollecting the indulgence which the law allows in the way of amendment, 31 but also bearing in mind that the objection, if not taken, will 22 — This is where Sergeant "Williams led Qiitty, Stephen, and through them, the whole profession into error. Defects of substance can never be waived. They may be raised on appeal for the first time, or on collateral attack. Stephen himself says this at p. 145 supra, n. 2, and thus contradicts himself. See Deiile fundamentum fallit opus, herein. Illinois cases dote on this quotation in Stephen. 23 — This states the law too broadly, for defects of substance can not be waived. It is not in accord with Jackson v. Pesked. 24— Dobson, L.C. 232a, 3 Gr. & Eud. 25 — Jackson v. Pesked, 1 M. & S. 234. Vt res magis valeat quam pereat. Eush- ton, L.C. 5, 3 Gr. & Eud. 26 — Jackson v. Pesked ; Verha fortius. (In Jackson, the judgment was arrested as in Eushton.) 27 — See Consensus tollit errorem; the text is very misleading. 28 — 3 Bl. Com. 394; 1 Saund. 228, n. (1) where Mr. Sergeant Williams cor- rects a mistake in the passage in Blackstone's Commentaries. 29 — This expression is unconfined, is defective; it is in disaccord with the law of waiver. See Consensus tollit errorem. Cf. 144-145, 147, ante. 30 — See Eushton t. Aspinall, L.C. 5, 3 Gr. & Eud. ; also Jackson v. Pesked ; also Coggs V. Bernard. 31 Vide supra, p. 75. Sergeant Williams is quoted, p. 149, supra. He stated the law too broadly, in this particular; he included substance with matter of form. 96 EQUITY IN PEO'CEDUEB be aided by pleading over, or, after pleading over, by the verdict, or by the statutes of amendments and jeofails. And if he chooses to demur, he must take care to demur specially, lest, upon general demurrer, he should be held excluded from the objection. On the other hand, supposing an insufficiency in substance, he is to consider whether that insufficiency be in. the case itself, oi- in the manner of statement; for, on the latter supposition, it might be removed by an amendment; and it may, therefore, not be worth while to demur. And whether it be such as (p. 152) an amendment would remove or not, a further question will arise, whether it be not expedient to pass by the objection for the present and plead over. Tor a party, by this means, often obtains the advantage of contesting with his adversary, in the first instance, by an issue in fact, and of afterwards urging the objection in law by motion in arrest of judgment or writ of error.32 This double aim, however, is not always advisable ; for though none but formal objections are cured by the statutes of jeofails and amendments, there are some defects of substance as well as form, which are- aided by pleading over, or by a verdict; 33 and therefore, unless the fault be clearly of a kind not to be so aided, a demurrer is the only mode of objection that can be relied upon. The additional delay and expense of a trial is also sometimes a material reason for proceeding in the regular way by demurrer, and not waiting to move in arrest of judgment, or to bring a writ of error. And a concurrent motive for adopting that course is, that costs are not allowed (p. 153) when the judgment is arrested nor where it is reversed upon writ of error ;3* (each party, in these cases, paying his own;) but on demurrer, the party suc- ceeding obtains his costs. "35 § 119. Observations on the Foregoing Excerpts.— Attention is called to the character of the note matter selected by Stephen. Judging from that matter it can not be claimed that he wrote from principle ; nor that he fnlly and correctly stated the law of the general demurrer and its correlatives ; thus, he failed to show that he understood the philosophy of the mandatory record ; he also jumbles the matter of this record with the matter of the statutory record. The consequences of this are reflected from the advocacy by later authors of the "theory of the case."^^ At page 152, the learned author did not take into account that a respondent may have wanted a good pleading for purposes of res adjudicata. Nowhere does he reason from the requirements of the latter. Nor does he recognize the operation of Con- sensus tollit errorem, which he never cites or explains, but 32 — "When the matter in fact will clearly serve for your client, although your opinion is that the plaintiff hath no cause of action, yet take heed that you do not liazard the matter upon a demurrer, in which, upon the pleading and otherwise, more will perhaps arise than you thought of, — but first take advantage of the matters of fact, and leave matters in law, which always arise upon the matters in fact, ad uliimum; and never at first demur in law, when, after trial of the matters in fact, the matters in law will be saved to you. ' ' — Lord Cromwell 's Case, 4 Eep. 14a. 33 — As in the example, supra, p. 147. 34—2 Tidd, 1243, 8th ed. 35— Hitchcock v. Haight, L.C. 12, 3 Gr. & Eud. This page 152 is contradictory within itself, also with what Sergeant Williams said, which was also misleading. This page is an excuse for the condition in Illinois and Missouri, and other theory of the case states. 36— See Theory of the Case; also Variance, 4 Gr. & Kud.; § 119, 1 Gr. & Bud. DE NOK APPAEEKTIBUS 97 instead he ascribes the waiver to the operation of the statute of Amendments and Jeofails, which able judges have always limited to formal matters and not to substance. These facts show that Stephen did not understand the trilogies of strict and of liberal construction. In connection with these observations, Stephen's preface throws light over his views, and his admira- tion of Chitty whom he professedly followed. To each of these authors and their followers, the law was a mass of statutes and <2ases. In this they must be classed as provincial lawyers. They did not tmderstand the philosophy of the old maxims, the orient peaks of the law. It was from such loose and undefined expres- sions and contradictions as those of Stephen that the author of Ihe Code had to pick its leading ideas, which are : 1. The statement of the cause of action or of defence must contain essential facts, p. 146, above quoted. 2. It is vain to prove what is not alleged, p. 146, supra. 3. A recovery must be within the facts stated, p. 146, supra. Now can we interpret these cardinal provisions of the Code. "by Stephen's pleading? Jackson v. Pesked (A. D. 1813) is a case where the judgment vas arrested because of the omission of a material allegation; this case is like Rushton v. Aspinall, L.C. 5, 3 Gr. & Rud. These -cases stand for this proposition: § 120. There Is No Aider by Verdict of Matter of Substance. ; — These cases oppose the observations of Sergeant Williams, ■quoted and approved by Stephen. There is a wide distinction between what Ellenborough said in Jackson and what Williams said, and this distinction so important was overlooked by Chitty and Stephen. The editors of Stephen's pleadings evidently have no respect for those maxims that were paraphrased in the Code, for they expressed their views of Codes in their prefaces.^'' These authors do not make it clear that they understood the -trilogies of the mandatory and of the statutory records, re- spectively, nor the conserving principles of procedure.^^ 37 — See Prefaces in editions of Heard, also by Tyler, also of Andrews, § 230 : Cases 2nd ed.; 1 Chit. PI. chap. .X (Aider by pleading over, by verdict, also by statute). 38_§§ 83-123, 1 Gr. & End. 98 EQUITY m PEOCEDUEE §121. Chitty's Pleadings First Appeared in A. D. 1808, Stephen's in 1824, and Gould's in 1832. Both Stephen and Gould •were molded in thought and plan by Chitty. All of them cited digests and abridgments and much that was really trivial and in-consequential matter for citation. They did not fully under- stand Mansfield's great cases, nor make them sufficiently promi- nent. To illustrate, let us turn from their works and consider the advantages of citing a case like Munday v. Vail?^ § 121a. Accordingly Appears the Value of Munday v. Vail (L.C. 79, 3 Gr. & Eud; also in Text-Index, post), and bibli- ographically it is of more consequence and leads to more sound instruction than do a score of pages from either Chitty, Stephen or Gould. By this illustration we show why most of the citation matter of those authors is not to be commended. To the student of today it is almost valueless. This will clearly appear to the- student who will follow Munday v. Vail, as above indicated, and then compare this instruction with that found in the works referred to. § 122. Construction for Two Parties Is Different Than foi» Three. — The trilogy of liberal construction applies to those^ matters wherein neither the state nor third parties have any interest. Such matters may be waived. This is adjective law, if this term "adjective" is to have a truly useful meaning. The trilogy of strict construction applies to the mandatory record and its essentials; the trilogy of liberal construction applies to the matter of the statutory record; this matter con- cerns only the parties named upon the record, and of course they can waive or insist upon this matter as they see fit. They may waive it by failing to argue it, or assign error thereon, or tO' make a motion for a new trial, or to object promptly and except with precision and certainty, and not too generally or broadly.*^ §123. The Jurisdictional Record Is Strictly Construed.— As stated in the last section, the statutory record can be waived ; but other considerations entirely attend the matters of the man- 39—34 N. J. Law 418; quoted and followed in Eeynolds v. Stockton, 140 N. S. 254; also in Sache v. Wallace, 101 Minn. 169, 121 Am. St. 612, n., 11 L. E. A. ,^^" o',^ T^"^ ^} ^/^r t v^"^- ■*-°°- ^^^^^' 3*8; ^'so '° Charles v. White, 214 Mo. «f ;J.,r„ • • i'^-,,^-^ *^^' ^'™ '° ^°Pe "■ Slair, 105 Mo. 86, 24 Am. St; 366, §§ 448-452, post; Smalley, 19 111. 207, § 47, ante. 41— L.C.'s 291-299, 3 Gr. & End.; Consensus tolUt errorem. DE NON APPAEENTIBUS 99 datory record. These cannot be waived. The state requires this record ; the state is a silent third party. Its rights — it equities — cannot be waived. Res inter alios acta. Alterum non Icedere. The state may ever appear and say Non hcec in feeder a veni to any and all claims of waiver, of its interests or mandates for protection; among these are the means and requirements to keep the judiciary in certain and legitimate bounds. Hence the rule is," A court is hound by its record" ; consequently there must be a record and a certain record, for an uncertain record would be useless. For these ends the trilogy of strict construc- tion applies. These views will find support in § 10, Story's Equity Pleadings.*^ This section is reaffirmed by codes, but in a variant language. The law looks at substance and not form; substance, and not form, rules in equity. Every practitioner knows that in the establishment of the statutory record the judge officiates and decides for himself; also that as to this duty, unwilling and even arbitrary judges are met. Now, if this record could be substituted for the manda- tory record and the authority of the court was to be sought and determined from the statutory instead of the mandatory record, there would be found the way for usurpation, tyranny and oppression. Therefore the rule is, "There must be a record made by the parties and the clerk, and it is this record that binds the court." A court is bound by the clerk's record. "What ought to be of record must be proved by record and by the right record."*^ This last rule may well be called the record rule; it is the first rule of evidence, and is inseparable from the rules of oral evi- dence. It is a corollary of the trilogy of procedure. This trilogy and this rule of evidence are indispensable for the operations of a government of protection, or, in other words, of a constitu- tionalism. This record rule involves the oral evidence rule. The trilogy of procedure and its corollary rules are on the separating line between a constitutionalism and an absolutism. In these safeguards lie the immutable elements of jurisprudence that form very important parts of the prescriptive constitution ; they may well be designated as substantive law. 42 See Story, 4 Gr. & Kud. ; also in Fletcher v. Eoot, 241 111. 429. 43— Planing Mill Co. v. Chicago, L.C. 2d, 3 Gr. & Eud. 100 EQUITY IN PEOCEDUEE From these premises the rules of the general demurrer may- well be introduced. Herefrom can be seen the importance of the rule that the general demurrer searches the substantial pleadings and attaches to the first fault.-** Herefrom can also be seen the importance of the rule that the ground of the general demurrer is never waived. This rule is respected in all protecting systems ; the code expressly provides for it. "Filing an answer will not waive the ground of the general demurrer." This objection may be raised at any time and in any way ; it may be first raised or renewed in the motion of arrest ; or first made or renewed upon collateral attack whenever the record is offered to prove title to property, or for an estoppel. The necessities of res adjudicata depend upon the foregoing rules ; in fact, they are the rules of res adjudicata in a varied language. The requirements of res adjudicata involve the maxim, Interest reipuhliccR ut sit finis litium (It is the welfare of the public that there be an end of litigation.)*^ Herefrom is again brought into view the fact that the state is a silent party in procedure. Here is the third party whose rights cannot be consented or contracted away by the parties named upon the record. Here is a party with sub- stantive rights. Accordingly, this third party may ever appear and in effect say, Non hcec in fcedera veni (I did not come into this compact). There are aspects of these rules which allow one to demur to his own pleadings, and thus first raise the objection in the appellate court. Substance cannot be waived. The statute of Amendments and Jeofails in several states, and the so-called "liberal provisions of the code," have igno- rantly been aimed at minimizing the operation of the trilogy of procedure, or its strict rules of construction, and of augment- ing the operation of the liberal rules of construction above mentioned. In many cases the attempt has been to make all presumptions in favor of the judgment or decree. In other words, if a court enters a judgment or decree, or issues letters of administration, then from the judgment entry or the letters it is presumed that the authority upon which the entry was made or the letters issued was regularly, rightly and validly pre- sented. Probatis extremis prcesumuntur media. This limits 44— U. S. v. Linn, 1 How. 104; Eushton t. Aspinall, L.C. 5, 3 6r. & Bud. et seq. ' 45— Vallandingham v. Eyan, 17 IlL 25; Smalley, 19 lU. 207. DE NOX APPAEENTIBUS ; * fL^Ol \ '^^ jurisdiction to two elements ; first, the Jurisdiction of tiie^ijexson, and second, of the subject-matter.*" According to such dfeeist^Bg, the statement of a cause of action is imnecessary; consequently pleadings are unnecessary. From the issuance of letters of administration the authority therefor is presumed.* '^ From these cases appears the immola- tion of the trilogy of strict construction and the substitution therefor of the trilogy of liberal construction. Herefrom is seen the importance of construction, and how construction makes or mars. The substitution referred to would necessitate a recon- struction of the rules of res adjudicata; it rejects the rule, that an authority must be pleaded.** Where the trilogy of liberal construction is substituted for the trilogy of strict construction, the state is practically excluded as a silent third party. This is the result of the statute of Jeofails and Amendments, or the so-called "liberal provisions of our Code." Cases that emphasize this quotation are to be guarded against, for they inculcate erroneous notions. § 123a. The True Limitation of Liberal Construction Was Fixed by the Judiciaky. — Declarative statutes have since been enacted. Sergeant Williams*^ is responsible for the quotation, in Stephen's Pleadings on page 149.^" § 124. Matter of Substance Is Not Supplied by Liberal In- TENDMENT. — A pleading defective for substance cannot be cured by aider or waiver.®^ Quod ah initio non valet intractu temporis nan convalescit; De non apparentihus et non existentibus eadem est ratio. The state, the silent third party, requires substance. From the cases last cited it is submitted whether the ground of the general demurrer is or can be waived, for reasons already 46— Franklin Lodge v. P., 220 111. 355, 110 Am. St. 248, 4 L. E. A. (N. S.) 47— Balsewicz, 240 111. 238. See Illinois. Eice v. Travis, 216 111. 249, reversing S.C. 117 111. Ap. 644. 48— Hopper, 118 IT. S. 148, L.C. 4, 3 Gr. & Bud. 49_Wnis. Saund., 228 n. 1, 85 Eng. Eeprint 242-248. 50 This quotation is also found in E. v. Goldsmith (1875), L.E., 2 C.C. E. 72, 12 Cox CC 479, 8 Eul. Cas. 115, L.C. 20, 3 Gr. & Eud.; Eoper v. Clay, 18 Mo. 387: Cases cited! 59 Am. Dec. 314; Chicago E. E. v. Hines, 132 111. 161, 166, quoting Chitty 712 713; Doyle, 193 111. 501 (ground of the general demurrer waived); T!rn Max '602- 1 Chit. PI., 705, 714. 51_CaniT,bell t. Porter, supra; C. & A. E. E., 173 111. 100, 103; U. S. v. Cruik- shank gwora-C E. I. B. E. v. P., 217 III. 1; Eushton, L.C. 5, 3 Gr. & Bud. et seq.; Andrews V Lynch, 27 Mo. 67; Mallinckrodt, supra; Davis, 126 Mo. 69, 78 q. v.; Smalley, 19 IH. 207; Foster, 191 111. 94, 97, quoting Bowman v. P. 102 EQUITY IN PEOCEDUEE stated.®^ The trilogy of liberal construction is as broad as the reason upon which it rests, and not broader. Substance as above used is that matter which is necessary to pass the general demurrer, the motion in arrest, of wore obstante veredicto, the avoidance of a repleader, of objections on collateral attack, also to support a plea of res adjudicata. Statutes of Amendments and Jeofails employ broad and sweeping language, which is aimed at the extirpation of the trilogy of strict construction. Such is the character of statutes in Missouri and in Illinois.^* Courts in these states have con- strued these statutes variantly. Some have believed that the common law was changed; others have denied it. In Missouri the statutes were held as affirmative.^* And likewise the code was viewed as affirmative.®' Likewise in Illinois.®'^ In these states it ie held that they apply to formal defects only. This view disposes of volumes of discussion in these states, which shows that there has been great waste of words and effort. For the law always was that formal error was waived unless aptly excepted to and preserved and presented to an appellate court for review.-'''^ Chitty was most unfortunate in discussing the construction of pleadings as he did in his Chapter X. § 125. The Fundamental Principles of Procedure Arise From Okganic Law. — These are principles of necessity, conven- ience, reason and public policy. They are not created by constitutions, statutes, decisions and rules of courts.®* These principles do not originate from legislative fiat. By ignoring the prescriptive constitution in American courts, the belief has been spread that the essential rules of procedure are local and provincial and that there may be a distinctive "due process'' of law" for each state and province. Federal and state decisions countenance this view, also acts of Congress, and state legisla- tion. Erroneous construction of Codes and Practice Acts jus- tifies these observations. The construction of these in Illinois and in Missouri has dismembered procedure. In these states, 52— §§83-123, 1 Gr. & Bud. Cases that hold the contrary and Chitty and Gould are opposed to sound principle, as cited, 132 111. 166. 53— See Bushton, L.C. 5, 3 Gr. & Eud. ; Dovaston, L.C. 217 id 54— Choteau, 10 Mo. 131, 134. See Amendments. 55 — Andrews, 27 Mo. 167. 56-Chicago E E y. Clausen, 173 III. 100; C. B. I. & P. E. E. v. P., 217 III. 164. 57— Consensus toUit errorem ; L.C.'s 290a-299, 3 Gr & Eud 58— §§ 53-60, 1 Gr. & Eud.; Crockett v. Lee, 7 Wheat. 522," 526-527. DE NON APPAKENTIBUS 103 construction has proceded upon the theory that the trilogy of procedure could be restricted in its operation by the trilogy of liberal construction or by legislative command. This has had the effect of enlarging the sphere of Consensus and its cognates. By this construction, a footing for the "theory of the case" was afforded, the consequences of which can be judged from the jungle of distortions and perplexities that have followed.^* The prescriptive constitution is the safeguard of the general demurrer and its allies at succeeding stages. They test the coram judice proceeding. Any disturbance of one of these safe- guards disturbs the entire system. This fact has been little appreciated by American courts and most authors.®" Concordare leges legihus est optimus interpretandi modus. § 126. Matter of Substance Is Purely a Matter of Judicial Means. — It is not a matter of legislative concern. Thus it is that the broad and sweeping language of the statute of Amend- ments and Jeofails is limited and held to apply to formal mat- ters only. This was declared by the first case in Illinois {Tay- lor V. SprinJcle) ; this case was a judicial declaration that the legislature could not prescribe conclusions of law for the opera- tion of courts. The conclusion of law is not suflScient in sub- stance. It is obnoxious to the general demurrer. Thus it appears that what relates to substance, and the general demur- rer, and its correlatives, to and including collateral attack, is of constitutional significance ; also that these matters are a judicial and not a legislative concern. If they were legislative questions, then the means of operating judicial power would be at the mercy of legislative power. On the contrary, the necessities for the due administration of the laws are constitutional impli- cations, and are, therefore, inherent powers of the judiciary, which cannot be delegated to legislatures. When the judicial department is created, and commissioned with power, this vesting with jurisdiction carries with it many implications, and among these the means of its existence, and of carrying forward its functions in government. Courts cannot interfere with legis- lative means, and legislatures can only interfere with judicial 59 See Theory of the Case; Variance; Waiver, 4 Gr. & Bud.; 70 Cent. L.J., 294-296 311-314, 402-407, 455-460; see views of James C. Carter quoted p. xvii, preface to this volume. 60_See Illinois; Missouri. 104 EQUITY IN PEOCEDUEB means when courts acquiesce in legislative usurpation and arro- gance. Courts often set aside statutes, and they have resented legislative commands as impertinence. The limiting of the statutes of Amendments and Jeofails to formal matters only, as has been decided in almost all states, is practically nullifica- tion of legislative edict. Such construction of the liberal provisions of "our code" in effect declares such enactments to be simply afftrmative statutes; for by such construction these statutes add nothing to the law. In all ages formal matter was waived as a matter of policy emanating from Interest reipuhlicce ut sit finis litium. And this policy is plainly reaffirmed by codes by the provision that filing an answer waives all formal defects. By pleading over, if not before, all formal defects are waived. To call this aider by verdict is a loose and confusing expression, for the policy of waiver {Consensus tollit error em) is that it operates instantly. Formal matter can be waived at any tiine, and in many ways, and if waived for an instant it is waived forever, for reasons of public policy. It may also be waived at the stage of filing motion for a new trial; also at the stage of assigning error in an appellate court. Indeed, the policy of waiving formal matter is a philosophy. As a means of speeding a cause to final disposition upon its merits, its substance, the maxim last quoted and its cognate principles, constitute juridical reason and means that are necessities for the conduct of judicial aftairs in a constitutionalism. And those principles are parts of the prescriptive constitution. If a statute, a decision, or a rule of court declares formal matter of equal dignity with matter of substance, it cannot long command respect; such nonsense tends to hobble and encumber the due administration of the laws, and so able courts have always decided, and so they will always decide wherever reason is the soul of the law. Accordingly, ^'the liberal provisions of our code" are perceived as declara- tory of the prescriptive constitution, adding nothing whatever to the law, except as the means of making the old law more conspicuous and accessible and convenient for those who doubt or hesitate. But matter of substance cannot be waived. This matter concerns the state, a silent third party, and by the claim of waiver between two parties, the third is in nowise affected ; and so it is, what concerns the state — public policy — cannot be DE NOJSr APPAEENTIBUS 105 waived. To such attempts at waiver, in effect the state says, Non hcec in foedera veni; or. Res inter alios; or, Alterum non Itedere. "Where the state's interests or commands are neglected or disregarded, there results, in contract, the In pari objection ; while if a judgment and its foundation are under consideration, the proceeding is called coram non judice. And so it is that the state has interests in the dealings and relations of its citizens. From the above it may be perceived that procedure (evidence, pleading and practice) arises from the prescriptive constitution, and that the fundaniental requirements of all these matters cannot be changed by statute. It is almost superfluous to add that statutes are not so important as many judges have supposed. § 127. Elements of the Coram Judice Proceeding; the Phi- LOSOPHY Involved. — In the requirements of a plea of res adju- dicata are to be found the uses and functions of the mandatory record, which are so many and varied ; for these uses there are assigned exclusive functions to that record. For these uses there is strictly applied to that record, Expressio unius est exclusio alterius. For the requirements of a plea of res adju- dicata stand the general demurrer and its correlatives to and including objections upon collateral attack. For all these the mandatory record must be seen as a base or foundation into which all matters of substance are dovetailed and mortised and find support. As to all of these matters, they are correlatives here and reciprocals there, and all are but parts of the entire thing, the due administration of the laws.®' The intellect that does not understand that necessarily uniform rules of construc- tion apply to all stages of the general demurrer, by whatever name known, does not know the philosophy of the mandatory record; nor is it enlightened so it can see the interactions of the "cause of action" in the organization and constitutional powers of the court.®^ There are reasons, too numerous to men- tion here, why proceedings must be coram judice, and be suffi- ciently evinced by the right record. In the above lie nestled all the elements of "due process of law," of the "manner of the Eomans," of the trilogy of procedure. Coursing through 6l_«§ 83-123, 1 Gr. & Bud. 62 See CMtty's three kinds of aider, chapter X, Cliitty's Pleading, vol. 1. 106 EQUITY IN PEOCEDUEE all these matters is a large strand comprehended in the maxim Audi alteram partem.^^ The above is offered to demonstrate that "due process of law ' ' may be viewed as an entirety, and consistently, from many viewpoints and at many stages. The rule that the general demur- rer is never waived ; that at all stages it may be first raised and heard, under some name ; that even on collateral attack, and as a test for res adjudicata, it searches the entire record and attaches to the first fault, is attended by a philosophy that has become lost in statutes and decisions in most American courts. The matter of substance so often referred to in the works on pleading and evidence has a wide and deep significance when viewed from the necessity of stating a ' ' cause of action. ' ' Here- from it may be perceived that the state has substantive rights in procedure which cannot be waived, and that the study of procedure is the study of government. De non apparentibus is a rule of strict construction applying to all juridical documents. It yields to liberal canons of con- struction only as to those matters that concern exclusively the parties to the judgment, contract or proceeding. As to these matters the trilogy of liberal procedure applies, e. g., Consensus tollit errorem; Omnia prcBsumuntur rite, etc., and Tit res magis valeat quam pereat. These maxims of liberal construction find their limits in cases like Jackson v. PesTced^^ quoted, stated and approved in Dobson v. Campbell.^^ Statutes of Amendments and Jeofails simply reaffirm Jackson and Dobson, supra.^^^ Green v. Palmer, L.C. 90, 3 Gr. & Eud., well illustrates the strict rule of De non. Dobson v. Campbell, supra, and its cognates illustrate the liberal rule.^^ 63— Windsor v. McVeigh, L.C. 1, et seq., 3 Gr. & Eud.; §§ 83-260, 1 Gr. & Eud. 64—1 M. & S., 237, 85 Eng. Eeprint 248, 105 Eng. Eeprint 88. 65— L.C. 232a, 3 Gr. & Eud. Bro. Max. 944, 8th ed. ; Davis, 27 Mo. 60 (instruc- tive case); Davis, 126 Mo. 69, 78; Stephen's PI., 146-150 (Aider by pleading over); Welch, 28 Mo. 30; Eraser, 32 Mo. 461; Eoper, 18 Mo. 383, 59 Am. Dec. 314; Andrews v. Lynch, 27 Mo. 167 {Be non applied with strictness) ; Speer v. Skinner (1864), 35 lU. 282 (Z7t res magis liberally applied to nphold a iudement) ; Hamond v. Dod, Cro. Car. 6, 79 Eng. Eeprint 609. 65a— C. & A. E. E. v. Clausen, 173 111. 100, 103 (Quoting rule in E. v. Goldsmith, L.C. 20, 3 Gr. & Eud.); C. E. I. & P. v. P., 217 111. 164; Davis, 126 Mo. 69, 78 (assumes code has changed old rules); Sidway, 163 Mo. 342, 373-374; Mallinekrodt, 12a, 3 Gr. & Eud.; Dovastou v. Payne, L.C. 217, 3 Gr. & Eud.; U. S. v. Cruikshank, 232; Mallinekrodt, 12a: Cases. ' u sua , 66— Omnia prcBSumnntur rite, likewise Bro. Max. 946-954, 8th ed Potter 203 111. 592, 96 Am St. 322; Chicago, 233 111. 634, 66 Cent. L.J. 489. See Cromwell v. County of Sac, L.C. 26, 3 Gr. & Eud. D'E NON APPAEENTIBUS 107 § 128. The Line That Separates Strict From Liberal Con- STEUCTioN. — This is the thread of discussion coursing through the mandatory record, the general demurrer, motion in arrest, non obstante veredicto, the order for a repleader, objection upon collateral attack, requirements for res ad judicata, and other conserving prineiples.^^ But courts see this line dimly; they at times speak for it; still they wander, wabble around, and speak at random. They are not as they should be — definite, pre- cise and certain. They are led by the belief that Coke's three degrees of certainty must be respected and applied somewhere ; they believe that procedure, as adjective law, is local and provin- cial, and does not rest on universal and unchangeable principles ; they believe that these principles have been changed by written constitutions, statutes, decisions and rules of court ; they do not see the state a silent third party in all the dealings and establish- ments of its citizens, and that the state's demands must first be looked after and vindicated before the rights of the parties upon the record can be considered; that the state's mandates are substantive law. In prcesentia majoris cessat potentia minoris. § 129. Fundamental Principles in a Case Should Be Named. — They should be made prominent. If "Mike" Ohlman is not the same as Michael Ohlman in a published tax notice,®* then it would not be in the publication of a summons. Ubi eadem ratio ibi idem jus. This would be true in all relations where the reason is the same. Likewise the reason is the same when- ever the statement is necessary to confer jurisdiction upon a court; whether school lands or a sale was involved, should make no difference. To confer jurisdiction, jurisdictional facts are necessary, agreeably to these rules : 1. "Pleadings are the juriflical means of investing a court with jurisdiction of a subject matter to adjudicate it. " 2. "What ought to be of record must be proved by record and by the right record." These rules are corollaries of the trilogy of procedure ; they are deducible from the conserving principles of procedure.®® The philosophy of the law should be respected. To illustrate : If the unauthorized appearance of a lawyer is not conclusive,®^* 67— §§ 83-260, 1 6r. & Bud. 68— Ohlman, 222 Mo. 62. 69_§§ 83-123, 1 Gr. & Bud. 69a— Ferguson, L.C. 264, 3 Gr. & Bud. 108 EQUITY IN PEOCEDTJEB then neither is a sheriff's return. For in the last analysis, both the appearance and the return rest alike on the oath of ofiBce of each court officer respectively. But in some states this anomaly exists, as it does in Missouri.''" When the philosophy of the law is disregarded, then the words of the statute and of the decision, and, naturally, the "late" case, become the only authorities. This condition is brought about by short-sighted and mischievous construction.'^^ This has made the lawyer a drudge in the treadmill, hunting late cases ; it has made law an unmanageable lot of cases and statutes. § 130. Jurisdictional Facts Must AfHrmatively Appear; Old EuLES IN Late Cases. — This rule necessarily results if pleadings are to serve any useful purpose. We have defined them as the juridical means of investing a court with jurisdiction of a subject- matter to adjudicate it ; and this rule is deducible from the trilogy of procedure. When pleadings are viewed in the light of that trilogy and of the conserving principles of procedure, then the philosophy of the law appears. And wherever pleadings are provided for, they are the exclusive means of investing the court with power to act, to hear and to decide, regardless of the grade of the court, whether it is superior or inferior, or a court of general jurisdiction or a court of limited and statutory juris- diction. The expressions in many cases will allow one to think there is a difference, but in principle and reality there is not. § 131. Doddridge v. Paterson Reviewed.— To illustrate the foregoing views, attention is called to Doddridge v. Paterson, 222 Mo. 146. This case involved the title to school lands at public sale under these conditions : A statute authorized a sale of public lands lying in a township whenever a majority of the householders in such township might petition the county court to order such sale. A petition with fifteen names on it was filed, but this petition did not show two jurisdictional facts : 1, That each signer was a householder; and, 2, The number of house- holders in the township, so that the court could see from the record that it was authorized to act, or, in other words, that jurisdiction was conferred upon it in accordance with the rule, "What ought to be of record must be proved by record and by the right record," which is the first rule of evidence, and which is also a corollary of the trilogy of procedure. "0 — § 53, 1 Gr. & Eud. ; Vbi eadem. 71 — End. Stat., § 182. DE NON APPARENTIBUS 109 From the following quotation, and still more clearly from the case at length, one may infer that the court but dimly perceived the rule above quoted, for it spoke thus : "And where the County Court's records are silent on the subject of the petition, although they show that it ordered the section to be sold, the jurisdiction of the court to order the sale is not shown by the testimony of a witness who testifies that the petition had fifteen names on it, but does not say they were householders of the township or how many householders resided in the township ; and the court having to make the order, the sheriff's sale was void, although the purchaser paid the sheriff for the land and received from him a certificate." § 132. A Cause of Action Must Be Stated in the Right Plead- ruG. — This is indisputably true in equityJ^ The indictment must present the elements of a crimeJ^ The Code requirements are equally strict J* And the same rule can be picked from the rules in Stephen 's Pleadings J® 'Debile fundamentum fallit opus. The ground of the general demurrer is never waived ; it is also a ground for objection on collateral attack. The court further observed : "The County Court is a court of inferior jurisdiction, and in the sale of school lands it proceeds under special statutory directions, and it will not bo presumed that it had juriadietion to make the sale unless it be made to affirmatively appear that it observed those directions." "The second reason why the County Court did not acquire jurisdiction to make the pretended order of sale was, the evidence totally fails to show that the fifteen householders who signed the petition were residents of or lived in the township in which this land was located." What difference, let us ask, would it make, what the witnesses testified, if the allegation was omitted from the petition? De non apparentibus et non existentibus eadem est ratio. "While said section does not in express terms require the County Court to find that they were residents of the township, yet it requires that they must be, and in the very nature of things, no one else could make the findings for the court in the absence of an express statute to the contrary. ' ' The above quotation makes procedure a local and provincial question, still the court speaks of "the very nature of things" exactly as Marshall, C.J., did in Crockett v. Lee.''^ They evi- dently saw that this statute left something for the court. Lex non exacte definit sed arbitrio boni viri permittit (The law always leaves something to the judgment of a wise man). 72 — Story's Eq. PL, § 10; Steph. PI. 145, Crockett v. Lee; Washington E. E. v. Bradleys, post. 73— U. S. v. Cruikshank, L.C. 232, 3 Gr. & End. 74— Davis, 126 Mo. 69, 75. 75 Pp. 147-150 (Aider by verdict and pleading over). 76—7 Wheat. 522, 526-527. 110 EQUITY IN PEOCEDTJEE Expressio eorum quce tacite insunt nihil operatur (Things implied need not be mentioned).'''' "We are, therefore, of the opinion that under this statute the County Court had no jurisdiction to make the order of sale, and, consequently, no title passed, even though it be conceded the land was sold to Frisbee. McDonald, 61 Mo. Ap. 1. e. 293; Eaton, 76 Mo. 492, p. 155, 222 Mo. ""a "The omission of material allegations and of necessary record demonstration of jurisdictional facts made the proceedings coram non judice. This record would sustain no judgment or order."* And as was said by this court in the case of Sutton V. Cole, 155 Mo. 1. c. 213, 'It has long been settled law in Missouri, that jurisdiction of courts of inferior jurisdiction and of courts that do not proceed according to the course of the common law, must aflSrmatively appear on the face of the proceedings.' Citing S. v. Metzger, 26 Mo. 65; Hansberger, 43 Mo. 196; Edmonson, 43 Mo. 176; Scheie, 45 Mo. 289; Iba, 45 Mo. 469. "is Thus is conflicting law laid down in most of our American courts, by the same tribunal. There is really no need, nowadays, of all these jurisdictional discussions. The rule last laid down is a universal one. It was early adopted in English courts.''® The jurisdictional facts of a statutory power must appear upon the face of the judgment in all courts, of every grade. Galpin v. Page, 18 Wall. 350, L.C. 64, 3 Qr. & Eud. ; Sidway, 163 Mo. 373-374. In superior courts, proceeding according to the course of the common law, the jurisdictional facts must afftrmatively appear, in the right record and documents; and generally in the pleadings. All courts must be empowered by jurisdictional facts to exercise authority.*** Yet the Missouri court takes pains to say: ' ' The County Court is not only a court of inferior jurisdiction, nor was it pro- ceeding according to the course of the common law in the sale of those school lands, but it was acting under special statutory directions, which must have been observed before it could acquire jurisdiction of the subject matter." 77— McCulloeh t. Maryland (Marshall, C. J.), L.C. 147, 3 Gr. & Rud. 77a — Compare this strict rule with the protecting rule in Davis, 126 Mo. 69, 78; McQuitty, 218 Mo. 591, 131 Am. St. 586; Wilson v. Darrow (1909), — Mo. — . 77b— Mallinckrodt, 169 Mo. 388, L.C. 12a, 3 Gr. & Eud.; Sidway, 163 Mo. 342, 373, 374; Davis, supra. 78 — See Bice v. Travis, § 347, post. 79— Crogate's Case (1609), Smith's Lead. Case, 8th Ed., 77 Eng. Eeprint 574, 2 Gr. & Hud.; Eice v. Travis, 117 111. Ap. 644. Beversed 216 111. 249, 4 Gr. & Eud.; Walker v. Turner, 9 Wheat. 340. L.C. 118, 3 Gr. & Eud. Quoted and approved m S. v. Metzger, supra; P. v. Willis, 14 Johns. 370; Powers v. P., 4 Johns. 80— Eushton, L.C. 5, 3 Gr. & Eud.; U. S. v. Cruikshank, L.C 232 3 Gr & Eud.; Crockett v. Lee, 7 Wheat. 522, 525-527. DE XOX APPARENTIBUS 111 This is the condition all over the country.*' § 133, What Doddridge Involved, and What Might Have Been Said in Disposing of It. — ^Again and again we have decided the principle in C repps v. Burden and Gro gate's case, hoth in Smith's Leading Cases; Bro. Max. 950-953. This prin- ciple is also in Walker v. Turner, 9 Wheat. 541, L.C. 118, 3 Gr. & End., which is cited and followed in 8. v. Metzger, 26 Mo. 65. This case has since been cited and followed by that court. The question is, which canon will be followed? — on the one hand, that "vrhich provides that what is not juridically presented cannot be judicially decided, or, in other words, a fact not juridically appearing cannot be assumed to exist {De non apparenUhus et non exist entibus eadeni est ratio) ; or, on the other hand, is the maxim of regularity, that all acts are presumed to be rightly, regularly and validly done (Omnia prcesumuntur rite et solem- niter esse acta), to be followed by us? As to vesting a court with authority, or with jurisdiction, the state makes demands; thus the state is a silent third party to the proceeding, whose interests are never stilled by waiver ■or the conduct of the parties named upon the record. The state has substantive rights that override all other rules. Res inter alios acta judicata nullum aliis prcejudicium faciunt (Matters adjudged in a cause do not prejudice those who were not parties). Audi alteram partem,; 86 Mo. 366. § 133a. A Presupposed Opinion (continued).— The petition, or, in other words, the power of attorney to the court, was bad in substance, because jurisdictional facts were omitted, as in" Bloom V. Burdick, 1 Hill .130, 37 Am. Dec. 299; cited 79 Am. St. 82, L.C. 266, 3 Gr. & End. This case has long been cited and approved in all relations. The principle involved applies to courts of all grades. It would mislead to emphasize the fact "that our county court is a court of limited jurisdiction in this case. The principle involved is universal in a government of pro- tection where fraud and usurpation are denounced. Story's Eq. PI., § 10 ; U. S. V. Cruikshank, L.C. 232, 3 Gr. & Eud. ; Mallinckrodt, 169 Mo. 388, L. C. 12a, 3 Gr. & Eud. et seq.; Sidway, . 81 See the true rules in Galpin v. Page, supra ; Williams v. Hingham Turn- Uike 4 Pick 341 L.C. 7, 3 Gr. & Bud.; Bloom v. Burdick, 1 Hill, 130, 37 Am. Dec' 299; cited 79 Am. St. 82; 800; L.C, 266, 3 Gr. & Eud. 112 EQUITY IN PEOCEDUEE 163 Mo. 342, 873-374; Hope v. Blair, 105 Mo. 85, 93, 24 Am. St 366; Charles v. White, 214 Mo. 187, 21 L. R. A. (N.S.) 481. It matters not what court acts. Every court must acquire jurisdiction from its record. A court must have and keep a record, and this record binds the court; therefore this record must be certain. For these purposes the maxims of strict con- struction apply; those of liberal construction apply to formal matters only, and not to matters of substance. A pleading that will not pass the general demurrer will be held fatally bad on collateral attack. The coram nan judice proceeding, all must take notice of. Caveat emptor is the rule to purchasers at judicial and execution sales; they are charged with notice that the record is bad in substance. Windsor v. McVeigh, 93 U. S. 274, L.C. 1, 3 Gr. & Eud. In this case the fact that a majority of the householders signed the petition, should have appeared ; also, that the signers were householders. The evidence of these facts should have- affirmatively appeared. It might have appeared from facts stated, also by findings of the court, if these could have found a real and consistent support from the record. But in this case, such evidence could not have been supported by the facts that affirmatively appeared in the record, and therefore findings of the court would be of no avail. Becklenberg, 232 El. 120^ Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Eep. 580, L.C. 264, 3 Gr. & Eud. The power of a court to make and state jurisdictional facts depends on its record, and is necessarily alike in all courts. Crogate's Case, Smith's Lead. Case, 8th ed. Contra: Rice v, Travis, 216 111. 249 (reversing same case, 117 111. Ap. 644). Doddridge involves these principles : 1. What is not juritlically presented can not be juilieially rteeidecl 2. Every presumption is against a plea.ler. ' (Verba fortius 'accipiuntur contra proferentem.) Stephen, 122 Wall. 329, 339; 190 U. S 540 546- Mullen 12 Mo 307; Biddle 13 Mo 532 (First African Code C.se) DovastorTTpVl Smith's Lead. Cas., L.C. 217, ^ Gr. & Eud. 3. What ought to be of record must be proved by record and by the right record. S. V. Metsger, supra. ° ^- \nrMuna^"7^V^l'" "^""''^- ^"^^ "^ ^"'''' '''P'"' ^^""^^S and follow- Tested by these principles, the record is coram non judice. It will not support the order of the court, and upon this depend the sheriff's deeds. The purchaser gets nothing for Ms DE XOX APPAEEXTIBUS 113 money tinder a void judicial proceeding. Thomas v. P., 107 111. 517, 47 Am. Eep. 458; Bell, 123 Mo. 270; Windsor v. McVeigh. Contra: Balsewicz, 240 111. 238. If the decision in the Doddridge case had been placed on these grounds, we might not be now so involved in interminable discussions, proceeding on supposed distinctions between supe- rior and inferior courts, and about the effects of evidence which has no business in the case, under the pleadings. As to the true distinctions between superior and inferior courts, see Crepps v. Durden.^^^ § 134. Judicial Records Are Construed According to De Non Appakentibus. — Therefore if a record does not show service of process or appearance, it will not be presumed. Jurisdictional recitals will not conclude inquiry into service of process.®^ The recital in a record, that now come "the defendants" will not bind those not served with process and previously appearing.** Authority of attorney to waive original process and enter his appearance must affirmatively appear.** § 135. Verba Fortius Accipiuntur Contra Proferentem Is a ^Iaxim of the Teilogy or Steict Construction. — Statutes of Amendments and Jeofails and the "liberal provisions 'of our code" have been vainly directed at this maxim, for it is a neces- sary and a universal maxim of construction. To reverse it is to change the nature of the government from accusatory to inquisitorial and barbarous. For a cognate of this maxim is, "that the burden of proof depends upon the party who holds the affirmative"; this includes the rule, that one is presumed to be innocent until he is proven guilty. Adore non probante reus absolvitur. Semper prcesumitur pro negante. § 136. From the Trilogy of Procedure a Constitutionalism Can Be Evolved. — In a government of protection the crown or state is a silent third party. It is from the trilogy of procedure only that the requirements of the state are perceivable. The view that the parties named upon the record may contract a procedure for themselves has limitations which are discoverable from the conserving principles of procedure.*** These eonserv- 81a — Crepps t. Burden, L.C. 113, 3 Gr. & Bud. et seq. 82 — Cloud V. Inhabitants, 86 Mo. 357, 366-369. 83— MuUins, 169 Mo. 521, 529, 92 Am. St. 651; Bell, 123 Mo. 270: CaSesJ 84 — Bradley, 100 Mo. 258; Bell supra. 84a— §§ 83-123, 1 Gr. & Kud. 114i EQUITY IN PEOCEDUEE ing principles and the trilogy of procedure should be con- nectedly considered. Herefrom will appear the necessity for limiting the application of statutes of Amendments and Jeofails, or the "liberal provisions of our code." Eeference has been made to Illinois cases which eliminate the N, pleadings as a jurisdictional element {Franklin Lodge, supra) ^ From other aspects the statement of a cause of action is of much consequence. To illustrate: If one alleges he was injured by a "defective" scaffold, he cannot amend by changing this to an injury received in consequence of "overloading" a scaffold.*^ Alleging that a frog was negligently constructed and kept and caught and held the plaintiff's foot, is a different cause of action from alleging that cinders were negligently deposited near a frog and caused the injurious trapping of the plaintiff's foot in the frog.*® From these cases will appear the strictness with which the statement of a cause of action is judged.®*^ From these cases will appear the fact that slight distinctions of descrip- tion constitute different causes of action. Expressio unius est exclusio alterius. In the law of amendments, slight distinctions are substantial variance and departure. But in pleadings and proof, variance can be waived.®'^ This illustrates the indefensible antinomies. The trilogy of procedure applies to all cases and all systems alike, except in those cases where the interests of the state as a silent party are disregarded. Accordingly, the civil case is as strictly viewed as is the criminal case. The rationale is the same.®* The tests of res adjudicata and of other conserving principles are the same in all systems and in all cases. Upon respect for these depends a stable, congruous, useful adminis- tration of the laws. § 137. The Maxims of the Trilogy of Procedure Are Orient Peaks of the Law. — ^Wherever these are obscured by the silt of judicial opinion not founded on true Tirincinle, there results the condition shown from the Illinois and the Missouri cases. These show that courts ignorant of the beacon lights of jurisprudence 85— C. & A. E.E. V. Scanlan, 170 VI. 106 86— Cent. B. B. v. Campbell, 170 111. 363 ?26,L.c774a%''Gr.TBud' ^^ ^^ " ^-^--' "« HI. 543; Guedel v. P., 43 III. 87— Dorn y. Farr, 179 lU. 110, 2 Gr. & Sua 88—1 Gr. Et. 65; Bristow, L.C. 135, cases, 3 Gr. & Bud. DE NON APPAEENTIBUS 115 have given to their states a Babeh^** Their decisions say all things to all men. Herefrom arises the "jungle" referred to. These courts have not looked from the charters of their author- ity, the pleadings, and construed these as a power of attorney for the making of the deed. They have not construed these charters in the light of the greatest principles of the prescriptive constitution that relate to the conduct and operations of the judiciary, which is De non apparentibus et non existentibus eadem est ratio (What is not juridically presented cannot be judicially decided).^" § 138. A True Definition of Pleadings Is: "Pleadings are the juridical means of investing d court with jurisdiction of a subject-matter to adjudicate it." This definition is deduced from the trilogy of procedure and the conserving principles of procedure. A right comprehension of this trilogy and of this definition would have saved to great states what treasure cannot restore. From the next sections the mazy confusion that is gathering around the profession may be judged. It is from this confusion that the matter is picked by the operatives of book factories for their long rows of "chaff pads" and "space fillers" which are beyond human capacity, and which have become a menace to juridical progress. Lawyers are giving all their energies for a mastery of ' ' useless grists of profuse jargon." When these votaries of the impos- sible leave their states they leave "their profession" behind. And "their profession" at home is a tribal jungle of confusion that is nothing less than an incomprehensible tangle found throughout more than 500 local books from which the jurispru- dent wUl be puzzled to pick the one that really instructs. The "business" lawyers and the members of the profession who have become notable political "fixers" and leaders of the "sys- tem" are much better known and are more sought than the best law books. Few can comprehend what the Dean of the Harvard Law School meant when he said the English Bench, Bar and books are the best. § 139. Sources and Causes of Error; Elustrations.— In Mis- souri an early statute long respected and upheld was, that matter 89 — See Illinois; Missouri. 90 See Theory of the Case, also Variance, 4 Gr. & End; see pp. vi, vii. Preface to this volume. 116 EQUITY IN PEOCEDUEE of substance not specified in a motion in arrest of judgment "was waived.*^ In Illinois Chitty and Gould are quoted to sup- port decisions of that state that the ruling of the court on a general demurrer is conclusive; that matter of substance is cured by overruling a general demurrer.^ ^* Very incongruous cases result where the trilogy of procedure is not uniformly vindicated, as will appear from cases cited.^^ In the cases above cited and the citations found therein will be disclosed an irreconcilable maze of contradiction.^* The antinomies of these states are not "distinct bodies of law," but, on the contrary, they are a bewildering maze of breaches of the law. These establishments of confusion are alike, as will hereafter appear. MuUitudo imperitorum perdit curiam. SI— § 263 post et seq. 91a— Chicago E. E. v. Hines, 132 111. 161, 1G6; Doyle, 193 Til. 501 (ground of general demurrer may be waived) ; C, E. I. & P. E. E. v. P., 217 111. 164 (objec- tion to substance may be raised in appellate court). 92—217 111. 172. 93— See Illinois; Missouri. Chaps. 2VI, XVII. CHAPTEE VI (§§ 140-162) FEUSTEA PEOBATUE QUOD PEOBATUM NON EEL- EVAT : It is vain to prove what is not alleged. "Tlie manner of the Romans" enforced this maxim. V. 16, Chap. 25, Acts of the Apostles; §§ 10, 28, Story's Eq. PI. ; § 47, ante. A recovery must be secundum, allegata et probata. Variances are not allowed. See Variance, 4 Gr. & Rud. There shall be no departure. Technicalities are essential for a protecting government. A proceeding disregarding the state's mandates Is coram, nori judice and this can never pass for substantial justice. §§ 316, 473, et seq., post. This basic principle may be thus stated, a case cannot arise from the evidence. Story's Eq. PI., § 10. The "cause of action" must be presented by allegations, by sufficient allegations of material facts constituting the "cause of action"; and these allegations must be proved as laid. § 141. Cognate Maxims and Cases: A recovery must be Secundum allegata et probata. The evidence must correspond with the allegations and be confined to the point in issue. 1 Gr. Ev. 51. Earrison's Trial (1692), 12 How. St. Tri. 833, 864, 4 Wigm. Cas. Ev. 36. Murder; the crier called Mr. Bishop, who was sworn for the prosecution. Bishop: ' ' About three years ago the prisoner came to my master 's shop to cheapen some linen; and when — " Holt L.C.J. : "Hold, hold, what are you doing now? Are you going to arraign his whole life? How can he defend him- self from charges of which he has no notice? And how many issues are to be raised to perplex me and the jury? Away, away! That ought not to be; that is nothing to the matter." Courts will sua sponte take notice of depart- ures and variances. The charge as laid must be proved. V. 16, Chap. 25, Acts of the Apostles. Bristow V. Wright, Smith's Leading Cases, 8th ed., L.C. 135, 3 Gr. & Eud., et seq. (Allegata et proiaia must correspond.) C. V. Eoly, L.C. 74, 3 Gr. & Eud. (Only the crime charged can be proved.) Guedel v. P., 43 III. 226, L.C. 74a, 3 Gr. & Eud. (Only the charge laid can be proved.) S.P., Fish V. Cleland, 33 111. 238, L.C. 12c, 3 Gr. & Eud. ; Zang v. Metzger, 206 111. 475, 488; Adams v. Gill, 158 lU. 190, 2 Gr. & Eud.; Contra Eansom, 140 111. 626. Munday v. Vail, L.C. 79, 3 Gr. & Eud., et seq. (An issue indispensable for a trial) Cited and followed Hope, 105 Mo. 93, 24 Am. St. 366; Charles v. White, 214 Mo. 187, 21 L.E. A. (N.S.) 481: Cases. BorTcenhagen v. Paschen (Wis., Code). (No allegations, no proofs.) 8.P., Waldheier v. S. B., 71 Mo. 514, 517; Hempstead, 2 Mo. 64. (Variances, 'departures fatal if shown from the mandatory record.) Eddy, 32 Mo. 369; MaUinckro'dt, L.C. 12o, 3 Gr. & Eud.; Deiekman, 24 Mo. 596; Beck, 19 Mo. 30. Windsor v. McVeigh, L.C. 1, 3 Gr. & Euil. (Allegations essential for jurisdiction.) S.P. U. S. V. Cruilcshanlc, L.C. 232, 3 Gr. & Eud. 117 118 EQUITY IN PEOCEDURE Dickson v. Cole (Wis.), L.C. 34, 3 Gr. & Eud. (Pleadings are to limit issues and to narrow proofs.) Adams v. Gill, 158 111. 190; Bliss, Code PI. 138. Boon n. Chiles, 10 Pet. (U. S.) 177, 209; 43 Mo. 154. {Allegata et probata must correspond.) Harrison v. Nixon, 9 Pet. (U. S.) 483, sub Garland v. Davis, L.C. 60, 3 Gr. & Eud. (Allegata et probata must correspond; the mandatory record must be sufficient to support a judgment.) Suntsman v. S. (Tex.), L.C. 213, 3 Gr. & Eud. (Legislature cannot make an indictment for one thing stand for a different thing; Taylor v. Sprinkle, 1 111. — Breese— 1.) Pier, 52 Mo. 333. (Pleadings are constitutive.) S.P., Sidway, 163 Mo. 375; S. V. Muench (1909), 217 Mo. 124. 129 Am. St. 536-537; Lanitz, 93 Mo. 517; Hope, 105 Mo. 93. DicTcenslieets v. Kaufman, 28 Ind. 251, stated Bliss, Code PI. 215. S.P., Bristoiv V. Wright, L.C. 135, 3 Gr. & Bud. § 142. Constitutional Functions of Pleadings; Logical Defini- TioK OP. — A definition of pleadings is deducible from the trilogy of procedure : "Pleadings are the juridical means of investing a court with jurisdiction of a subject-matter to adjudicate it." § 143. Pleadings Invest a Court With Jurisdiction of a Stjbject-Mattee, and authorize the court to proceed and hear and adjudicate that matter. Hence the rule is that there must be a record, and also, ' ' A court is bound by its record. ' ' Eelated to these rules is this very important one, ''Allegata et probata must correspond." From Bristow v. Wright^* this last rule is extendedly and ably discussed.*^ § 144. Allegata et Probata Must Correspond Is a Logical De- DtrcTioN PEOM De non apparentibus et non existentibus eadem est ratio ("What is not juridically presented cannot be judicially decided). These maxims should be connectedly considered. Therefrom will appear reasons why there must be allegations and why these limit the jurisdiction of the court as to what subject-matter can be considered and adjudicated. A recovery must be secundum allegata et probata. § 145. That There Shall Be No Departure is but another statement of the maxim, Frustra probatur quod probatum non relevat. There shall be no departure is a rule of pleading; there shall be no variance is a rule of evidence. The distinctions between departure, variance, and failure of proof are often a jargon of words. They are like Coke's three degrees of cer- tainty. There is no well-defined distinction between variance 94r— Smith's Lead. Cases, 8th ed., L.C. 135, 3 Gr. & Eud., et sea.; Washington E. E. V. Bradleys, supra. 95— Bristow is cited 1 Gr. Ev., %% 63, 65. See L.C. 135-137, 3 Gr. & Eud. FEUSTEA PEOBATUE 119 and failure of proof, as has been contended by some courts. Eelating to these matters, useless decisions are found in several code states. No questions have more frequently arisen and given courts more trouble than those which relate to the trilogy of procedure, which is as follows : 1. De non apparentibus et non existcntibus cadem est ratio (What is not juridically presented cannot be judicially decided) ; 2. Frustra probatur quod prohalum non relevat (It was vain to prove what is not alleged) ; 2. Verba fortius accipiuntur contra proferentem (Every presumption is against a pleader). This trio supports the conserving principles of procedure, which are mortised in and depend upon that trio.®" Altogether these constitute a core from which arise three-fourths of the discussions of procedure (evidence, pleading, and practice). From that center radiate numberless rules related to those branches. From that core may be arranged and philosophically viewed, grasped and mastered, the obscure and subtle principles of a constitutionalism; these principles are a vast periphery around the center referred to.®'^ Herefrom may be perceived immutable elements of jurisprudence, and the supremacy of the prescriptive constitution. § 145a. Public Policy Is Respected.— The state is a third, but a silent, party in all relations to those it protects, educates and morally advances. To the unlawful contract it says, Non hcec in fcedera veni; also In pari, also Res inter alios acta. As a guardian and protector, it says: "I did not consent to that contract, and now I cannot affirm it by enforcing it; it is an illegal contract ; the transaction of two cannot bind or preju- dice a third." Id quod nostrum est, sine facto nostra, ad alium transferri non potest: What belongs to us cannot be transferred to another without our consent. To the supposed judicial proceeding established in violation of the above trio it says many things ; but the form of the expres- sion depends on the angle of viewpoint or the stage whence arises the objection. For it may be the general demurrer at one stage ; or at a later stage the motion in arrest of judgment ; 96—11 83-123, 1 Gr. v Eud. 97— See Chap. V, §§ 83-123, 1 Gr. & Eud. 120 EQUITY IN PEOCEDUEE or Non obstante veredicto, or of repleader; and still later, and tlironghoTit all time, objections upon collateral attack. Quod ah initio non valet intractu temporis non convalescit. The forbid- den proceeding is interdicted; it is analogous to the In pari delicto contract. Indeed, that is exactly what it is, since a judg- ment is a contract according to the classification of contracts. The state demands its record, the mandatory record; in other words, the state's, the public policy or the record of protection from usurpation.** This, the state's record, is commanded as a peremptory mandate of the state or government. If this record or any of its links is absent or defective in substance, then to this record is applied the maxim, Dehile fundamentum fallit opus. At the first stage the interests of the state are safe- guarded by the rule that the general demurrer searches the entire record and attaches to the first fault.®* The trilogy of procedure and its interactions with the con- serving principles of procedure constitute a fountain from which arises and flows the stream of life of the law. As irrigation is to the desert through which it flows, so is this stream of the law to all its fields. From the center and fountains referred to, all that emanates therefrom may be grasped, surveyed and mastered. Here begins the philosophy of procedure and its relations to government ; here may be unshrouded the mystery of codes and practice acts ; here also may be seen the two ways, the lower and sunken way, the "grope in the dark" through briery labyrinths, on the one hand, and the higher way, above cloud and fog, on the other hand. This trilogy is constituted of immutable elements of jurisprudence; these are from the prescriptive constitution. See Chap. X, also §§ 83-123, 1 Gr. & Eud. These have not been changed and they cannot be changed in a government of protection. The claim that the codes of procedure have changed these principles leads to pernicious consequences. § 146. Prustra Probatur Depends Upon the Rule That Plead- iNGS Are Essential to Confee Jtthisdictign- c? Subject-Mattek. — It is this rule that is flatly denied by the advocates of the 98— Sto. Eq. PI. lUO, 28; §5 47, 68, 119, ante. 39— Collier, 1 Mo. 1; Taylor, 1 HI. (Breese) 1; See Titln Story, 4 Gr. & Eud.; Slacum, 4 Id. §§83-123, 1 Gr. & Eud. i''EUSTRA PEOBATUR 121 ' ' theory of t-he case. ' '^ Generally it is conceded that jurisdiction depends on at least three things, namely : (1) Of subject-matter CWinclsor: L.C. 1, 3 Gr. & Bud.); (2) Of the person (Pennoyer: L.C. 58, 3 Gr. & Eud.) ; (3) Of the pleadings (Campbell: L.C. 2, 3 Gr. & Eud.j XI. S. v. CruikshanTc: 233 id.; Munday v. Vail; 79 id.; Mallinckrodt (Mo.): 12a id.; Eushton: 5 id.; SacJie V. Wallace (ilinn., Code), 4 Gr. & Eud.; Vallandingham, 17 111. 25: Smalley, 19 111. 207; Fish v. Cleland, 33 111. 238, L.C. 12c, 3 Gr. & Eud.; Slaeum, 6 Craneh, 221, 4 Gr. & Bud.). S. v. Mnench, 217 Mo. 124, 129 Am. St. 537-547; Charles v. IVhite, 214 Mo. 187, 21 L. E. A. (X. S.) 481. "Late-case" attacks upon the pleadings deny them as essen- tial for jurisdiction. These late cases limit jurisdiction to two elements, namely, of the subject-matter and of the person. From the judgment entry the authority to enter it is conclusively pre- sumed, unless perchance a statutory record has been filed by an appellant, for his uses in a court of errors, and irrelevant evi- dence is found therein, out of which a court, blind to the position and interests of the state as a silent third party in procedure, carves and sets up a defence not pleaded, in violation of the maxim, a recovery must be secundum allegata et probata, de- claring such defence to exist. In the "theory of the case" states this last maxim is respected and denied in alternation.^ The holy scriptures record Paul's trial. Therefrom we quote a most instructive passage, namely : "To -whom I answered, it is not the manner of the Fiomana to deliver any man to die, before that he which is accused have the accusers face to face, and have license to answer for himself concerning the orime laid against him." V. 16, eh. 25, Acts of the Apostles. § 146a, What Was the Manner of the Romans?— Manifestly their "manner" included the principle Audi alteram partem (No man shall be condemned unheard; or, The law hears before it decides). Herefrom it may be asked what Audi alteram partem includes. Certainly it includes the principles expressed in the trilogy of procedure, which are : (1) De non apparenttbus et non existentibus eadem est ratio (What is not juri- dically presented cannot be judicially decided) ; (2) Frvstra proiatur quod proiatum non relevat (It is vain to prove what is not alleged) ; . . • t (3) Verba fortius accipiuntur contra proferentem (Every presumption is against a pleader). 2—9 Thomp. Tri., §§2310, 2311; §§230, And. Steph. PI., cases. 3— See Preface, Vol. 3, Gr. & Kud.; Cape U. E. E., 222 Mo. 461, 486-487; I §444-447, post. 122 EQUITY IN PEOCEDUEE Audi alteram partem is discussed most extendedly and instructively in Windsor v. McVeigh.^ Every practitioner should be familiar with this case and the principles deducible therefrom. It should be observed that it is a case that may be cited to the point that a court must not only have jurisdic- tion of the person and of the subject-matter, but, further, that the court must acquire jurisdiction of a particular subject-matter by means of the pleadings and of its record ; and, further, that if a court abuses its powers, or fails or refuses to proceed judi- cially, then it divests itself of jurisdiction and can proceed no further, and if it does, its proceedings are coram non judice. Thus it will be seen that Windsor is at variance with those cases which hold that jurisdiction has only two elements, i. e., of the person and of the subject-matter. To sustain this latter view may be cited the cases in the note.^ Variances can be waived.® § 147. "The Manner of the Romans" is a general expression. It is like the phrase "due process of law," or the "due adminis- tration of the laws," or the "due course of law"; also like 'Audi alteram partem. But the expression, "the manner of the Eomans," was given a significant and pointed meaning by the words associated therewith. Noscitur a sociis. The word "laid" in the passage imports pleadings. It is a word that calls for the trilogy of procedure above mentioned. From the view thus unfolded there appears a passage not understood by many American courts. This passage, enlarged by Lord Eedes- <3ale and restated by Story, contains the germ of a great idea.'' § 148. Deductions From the Word "Laid" Above Quoted.— Prom the word "laid" as used in the holy scriptures can be deduced the trilogy of procedure, which is also the trilogy of strict construction, also this definition of pleadings : **PlearImgs are the juridical means of iivestinsr a court with juTipdietion of a siib.ieet-matter to ad.iudieate it." §§169, 273, 1 6r. & Bid.; Windsor, Li.C. 1, 3 Gr. & End; Slacum v. Tomery, 6 Crancli, 221, 4 Or. & Bud. From that word "laid" also may be defined the mandatory 4—93 TT. S. 274, L.C. 1, 3 Gr. & Und. 5— -T'Tanklin, 220 111. 355, 110 Am. St. 248-274; O'Brien, 216 Til. 354, 108 Am. St. 219; contra S. v. Muench (1909), 217 Mo. 154, 129 Am. St. 537. n.; Smal- lev, 19 ni. 207; Fish, 33 Til. 238, L.C. 12c, 3 Gr. & Bud; Adams v. Gill, 158 DL 190, 196, 2 Gr. & End.; Lang, 206 111. 475, 488; Story's PL, §10. 6— Dom V. Farr, 179 HI. 110; 2 Gr. & Bud. 7— Sto. PL, SIO; see Story, 4 Or. & Bud. FRUSTEA PEOBATUR 123 record, wliicli must exist from public policy, in the scheme of protection. There must be a record to bind a court, and the court is bound by its record.^ § 149. Courts Cannot Make or Choose Their Cases. Cohens, L.C. 244, 3 Gb. & EuD.— The statement of the "cause of action" or of the "grounds of defense," "as laid," binds the court exactly as the attorney in fact is bound by his power of attorney. From the above arises the greatest rule of evidence, upon which depend the operations of a defined and protecting government. This rule is a corollary of the trilogy of procedure, and is as follows : "What ought to be of record must be proved by record and by the right record " Windsor, L.C. 1, et seq., 3 Gr. & Eud. § 150. Expressio Unius Est Exclusio Alterius (The express mention of one thing implies the exclusion of all others) strictly applies to the rule last quoted. This was a part of that law which Festus called the "manner of the Eomans." From a fragment the entire edifice can be restored. From the word "laid" as above used a constitutionalism can be evolved. It calls for the division of state power, of which the American student hears so much, of which his courts know so little, and of which his endless rows of books are jejune.® The use of this overtoppling bulk is beyond human capacity. The Englishman resolved to make a Pope of his own ; accord- ingly he attempted to sanctify and hallow King Henry VIII. It cost a century of turmoil to accomplish that undertaking. Next he would make an almighty power, and so for this he declared that his ' ' Parliament was omnipotent ' ' and that it could behead his king, who was no longer above and out of the law. And this cost a revolution and a century of turbulence. The Englishman in America is passing through similar phases. He began by ordaining mighty laws. But he has not been at all times mindful of the reason expressed in In prcesentia majoris cessat potentia minoris (In the presence of the major thfe plower of the minor ceases) ; also in, Summa ratio est quae pro religione facit (When the laws of God and of man come in conflict the former are to be preferred). He attempted to sub- 8_S. V. Muench (1909), 217 Mo. 124, 129 Am. St. 537; Doddridge, 222 Mo. 146, 154-155; Hanford, L.C. 86, 3 Gr. & Eud., et seq.; Cohens, L.C. 244 id. 9_§§ 56-60, 1 Gr. & Eud. 124 EQUITY IN PEOCEDUEE stitute his conventions for inexorable and paramount laws, according to which all written constitutions and charters must be construed. These constitutions were declared the "supreme law of the land"; legislatures were declared "omnipotent"; therefore it mattered not how "blasphemous, immoral and un- christian" a statute might be, if only it was "constitutional" it would be enforced.^" But with the twentieth century, the pre- scriptive constitution is coming to be recognized.^^ Both the Englishman and the American have had to yield to the higher law; the latter has heard much of this relating to slavery and its consequence, the Civil War. § 151. Errorists and Empiricists Enthroned by the Legal Peofession. — These have written and decided the silt of that morass of bewilderment, the "theory of the case." Supposed great lawyers and judges advocated "American law," which is in reality the old African and Asian procedure.^^ The theory of the case is a euphemism which, rightly named, means judicial despotism. It was barbarity and fanatical inquisition as it appeared to Festus, who instructed the Scribes and Pharisees of the "manner of the Eomans," the well-defined due process of law of antiquity. Some of the mighty courts of America cannot define due process of law. They called the phrase sense- less jargon, quoted in constitutions for "rotundity of sound, which is quite pleasing to the ear, but leaves no .definite impres- sion upon the understanding."^^ "According to the course of the common law" or "due process of law" means nothing to one court, while to a great judge there arise therefrom the fundamental principles of a constitutional ism.^* To one intellect a pen is an instrument with which a black mark can be made, while to another it is the means of writing the decalogue. One judge says that from a judgment entry all else is pre- 10— Bison, L.C. 253, 3 Gr. & End.; Blair, L.C. 254 id «^ ^^~i^^.'^^/\ °V^^ ^°X '?"°'*y 7- ^- ^■' 2 ^'■- ^ I^"'^-; S. ex rel. Henson v. Stteppard (Mo.), 4 Gr. & Eud.; Oakley v. Aspinwall (N. Y.), L.C 222 3 Gr & Eud., et seq. ^ /7 , • 1.1 ^^Z^^- "• ^"®°* '-^^°^' ^°-^' 2 '^''"'"P- T"-' §§2310, 2311; And. Steph. PI., s 230 : eases. ' '■ 13— Hahn y. Kelly (Calif.), 2 Gr. & Eud. 1 td"*^^^^^'" ^' ^^^^ (Stephen J. Field, J.), L.C. 63, 3 Gr. & Bud.; Windsor, FEUSTKA PEOBATUR 125 sumed. Prohatis extremis prcesumuntur media (The extremes being proved, the intermediate proceedings are presumed. ) " He says jurisdiction depends on two elements, (1) jurisdiction of subject-matter and (2) of the person.^^'' Another says, pleadings also are essentiaL^^" Another says, additional elements also must appear ;^'^ also that it must appear that the court sat in the right territory ;^'^ also that the court was properly con- vened.^* Herefrom will appear the fact that the mandatory and statu- tory records have not been comprehensively defined; nor have pleadings; nor jurisdiction; nor "due process of law," nor "according to the course of the common law." They have not been so defined that courts of great states can agree thereon. The situation justifies the observation that the contributions of American courts to jurisprudence may be likened to vast extents of quicksand poured into a moving river. Looking from the marsh of "American law," it cannot be said that the Ameri- can knows his Bible, nor the trilogy of procedure, and deducible therefrom, the greatest rule of evidence, namely : "What ought to be of record must be proved by record and by the right record. ' ' In Mansfield's court the unwilling Englishman was taught the principles in Rushton v. Aspinall, L.C. 5, 3 Gr. & Eud. ; also Bristow V. Wright, L.C. 135 id.; also Dovaston v. Payne, 217 ii. These cases teach the trilogy of procedure ; in England this has been well taught and is now uniformly respected. But it is far otherwise in America. We must needs discover a "new law." Our resulting condition speaks plainly for itself. After the Eeformation, Coke and Bacon's dissensions, the two English revolutions, Mansfield's decisions,, the two wars with England, and amidst the disturbances of slavery, the Code came to New York in 1848, and next to Missouri in 1849. The 15— Balsewicz v. E. E., 240 111. 238. 15a— Franklin, 220 111. 355, 110 Am. St. 248, 4 L. E. A. (N. S.) 1001-1020; 2 Thomp. Tri. 2310, 2311. See Theory of the Case, also Variance, 4 Gr. & Eud. 151) — Windsor, Ii.C. 1, 3 Gr. & Eud., et seq.; Vallandingham, 17 111. 25; Smalley, 19 lU. 207; Fish, L.C. 12c, 3 Gr. & Eud. 16 ^Windsor, L.C. 1, 3 Gr. & Eud., et seq.; Jurisdiction, 2 Gr. & Eud. 17— Milliean 's Case, 4 Gr. & Eud. 1&— Planing MiU Co. v. Chicago, L.C. 2d, 3 Gr. & Eud.; Blair, L.C. 170 id.; see Jurisdiction, 2 Gr. & Eud. 126 EQUITY IN PEOCEDUEB first code case is Biddle v. Boyce;^^ the second code case is Eno V. Woodworth.^'^ § 152. The Higher Law in Procedure Has Not Been Under- STOOD IN Amekica. — Of course it has not been vindicated. The Code has not always been construed by intellects comprehending the trilogy of procedure and its conserving principles. The prescriptive constitution, embedded in the maxims of antiquity, have not been studied ; they are not comprehended.^^ The legis- latures of some states are declaring these maxims to be funda- mental law, as in North Dakota, while prominent professors and authors in a famous university are denouncing these same maxims in language more irreverent and forceful than elegant. In this orgy of confusion the American student is trying to find his way.2^ The addresses of renowned jurists in pan-American congresses fail to mention the true condition. • § 153. An Issue Shown by the Right Record Essential for a Trial. — It is well taught that in the criminal case, without a plea of not guilty — an issue — shown by the right record — the mandatory record — there is nothing to try; and that a trial •without an issue so shown is a nullity ; also that this issue cannot lae waived nor dispensed with; nor can matter found in the statutory record be substituted for it;-^ nor can the record be amended nunc pro tunc-io show this issue.^* § 154. Without an Issue the Court Has No Authority to Try. ^A trial without an issue is a nullity. It is usurpation — abuse of power — to order a trial without an issue, for a court is bound by its record. This reason applies alike to all cases.^' But in Illinois this view is denied.^® In the civil case issues, denials, pleas, allegations, entire pleadings are waiveid, in the "theory 19— (1850), 13 Mo. 532. 20—4 N. Y. 249, 53 Am. Dec. 370, n. These cases show that the code was entrusted to local and provincial jurists, who had no comprehension of a pre- scriptive constitution. The annotations of the latter case show that the vision of their author was narrow and befogged. 21— See Missouri, 4 Gr. & Eud.; Illinois, 2 id.; also Codes; §§56-60, 1 id., 83-113, id.; 70 Cent. L.J. 294-296; 311-314; 402-407; 455-460. 22— Cf. Sto. Eq. PI., §10, with 2 Thomp. Tri., §§2310, 2311; also with Earn on Judgments, §§45-49; see Theory of the Case, also Variance, 4 Gr. & Eud. 23— Crain v. U. S., 2 Gr. & Eud.; Munday v. Vail, L.C. 79, 3 Gr. & Bud., et seq. 24— S. V. Sanders, 53 Mo. 234. 25— Crain v. TJ. S.; Israel v. Eeynolds, 11 111., 218: cases, et sea.; Aylesworth T. P., 65 111. 372. ^^ ■^ 26— Devine v. E. E., 237 111. 278-284. FEUSTKA PEOBATUR 137 of the case" states. Now, why can an issue be waived in one case and not in another? The broad, philosophical answer to this is found in the conserving principles of procedure.^^ This philosophy is embedded in the trilogy of procedure. What this means is perceived by studying the conserving principles. Look- ing from these, pleadings are important in both civil and crimi- nal cases alike. Therefore jurisdiction depends upon essential pleadings.28 But some of the cases in Illinois and in Missouri and in other "theory of the case" states show that substantial pleadings and material matters of record are waived, save and except in criminal eases. But the rationale is the same in all cases alike, if the view be taken from the conserving principles of procedure. The best sections of the classics have not been understood by this generation.^^ From the above |the student can look and wend his way through the labyrinth; therefrom he can judge of the orthodox and of the heterodox ; of the evolu- tion of the "theory of the case"; of those led by the trilogy of procedure, on the one hand, and of those led by the errorists and empiricists, on the other. Herefrom will appear the wisdom of antiquity, which did nothing in vain, and that the stars it set are undimmed by age and undisturbed by storm. "Remove not the ancient landmarks which thy fathers have set." § 155. The Interests of the State Overlooked.— The trouble has resulted from enlarging the operation of the principle ex- pressed in Consensus tollit errorem (Acquiescence in error obviates its effect) beyond that province prescribed for it by the Eoman, Norman, English, federal and best state cases. This maxim contemplates but two parties, and they the ones named upon the record. Whatever concerns only the parties named upon the record, and they consent to or acquiesce in, becomes the law of the case imder this maxim. Whatever of one's own right one waives passes as good law under the operation of this maxim. But under this new American view of Consensus tollit errorem, the greater principle. Quod ah initio non valet intractu temporis non convalescit (Whatever is void in the beginning cannot be 27— See §§ 83-123, 1 Gr. & Eud. 28— Windsor, L.C. 1, 3 Gr. & Eud.; see Story, 4 Gr. & Eud.; §§47, 68, 119, ante. 29 — See §§ 63, 65, 1 Gr. Ev., 72 id.; 103 id.; Story Eq. PI., § 10, quoted sub Story, 4 Gr. & Eud. 128 EQUITY IN PEOCEDTJEE cured by waiver or lapse of time), has no operation whatever. The lesser is made to override the greater. Under Consensus tollit errorem, or the law of waiver, all that relates to the general demurrer, the motion in arrest and collateral attack becomes- subject to the law of waiver. This enlargment of Consensus allows its application to matters entirely foreign to it. Con- sensus is strictly a maxim of the parties themselves. Allegans contraria non est audiendus (One who alleges contradictory things shall not be heard) and Volenti non fit injuria (On© cannot cause his own injury and then complain of it) appear as cognates of Consensus. It is also allied to the maxim of regularity. Omnia prcesumuntur rite et solemniter esse acta (All acts are presumed to be rightly, regularly and validly done) ; also Ut res magis valeat quam pereat (It is better to conserve than to destroy). The last three maxims constitute the trilogy of liberal con- struction, namely : 1. Consensus lollit errorem: Acquiescence in an error obviates its effect; ". Omnia prcesumuntur rite et solemniter esse acta: All things are presumed. to have been rightly, regularly and validly done ; 3. Vt res magis valeat' quam pereat: It is better to conserve than to destroy. By a liberal application of this trilogy and its cognate maxims, the interests of the state — of public policy — can be eliminated from the operations of judicatory power. Many courts construe the statutes of amendments and jeofails and "the liberal provisions of our code" to that end. This is the result of giving to Consensus the widened application referred to. § 156. Rome Was a Silent Third Party in All Relations.— Of Home, by Eome, for Rome peremptory mandates were made as to all relations and dealings of Romans. This principle was the first line of the twelve tables, namely, Salus populi suprema lex (The public welfare is the highest law). In contract, relative to its legality, this maxim was applied: In pari delicto potior est conditio defendentis (In equal fault the position of the defendant is preferred). Closely allied to this idea is a maxim of procedure, Pavoraiiliores rei potius quam adores habentur (Defendants are rather to be favored than plaintiffs). A part of this last maxim is, Semper preesumitur pro negante (Pre- sumptions are always in favor of him who denies), or, in other words. Adore non prohante reus ahsolvitur (Unless the issue FEUSTEA PEOBATUE 139 is proved the defendant is absolved). In these maxims hes the philosophy of the burden of proof; and .they plainly con- -template a record, upon which are to be found an allegation, a denial and an issue; also this rule, that the evidence must correspond with the allegations and be confined to the point in issue. Herefrom will appear that there must be an issue; the jury is sworn to try the issue; so that there must be an issue when the jury is sworn; also that there can be nothing else to try. Expressio unius est exclusio alterius (The express mention of one thing implies the exclusion of another). Here- from will appear many reasons why there must be a record and v?hy this record must be certain.^" From these viewpoints will appear the trilogy of procedure, which includes Prustra probatur quod probatum non_ relevat (It is useless to produce evidence of what is not alleged) ; or as translated the mandate of Eome is made to read, "And he shall have license to answer for himself concerning the crime ■laid against him." Herefrom will appear the significance of the word laid. "And then he said, 'A word is not a little thing and ougnt not to be despised.' " § 157. Effect of Waiving the Pleadings.— In a government Tyhere pleadings are required for protection from judicial usur- pation and abuse of power, all is moored to the trilogy of proce- dure. And this trilogy is deducible, as we have before insisted, from the word "laid" as used in Paul's trial. Likewise from § 10, Sto. Eq. PL ; also §§ 63-65, 1 Gr. Ev., also § 7, 2 id., and 10, 3 id.; also from four cases in Smith's Leading Cases, 8th ed., namely, Rushton v. Aspinall, Bristow v. Wright, Dovaston v. Payne, and J'Anson v. Stuart. These cases are numbered respectively 5, 135, 217 and 91, 3 Gr. & Eud. of Law, wherein it is shown that the Eoman, the equity, the code, the federal, and the common law civil and the common law criminal case, each alike rests on that trilogy. Green v. Palmer, 15 Calif. 411, 726 Am. Dec. 492, n., by Stephen J. Field, should be compared "with the first code cases,' namely, Biddle v. Boyce^^ and Eno v. Woodworth;^^ also the last.^^* 30— See Certainty, 2 Gr. & Eud. 31—13 Mo. 532. 32 — 4 N. Y. 249, 53 Am. Dec. 370. 32a— Cape G. E. E., 222 Mo. 461, 486-487. See §§ 47, 68, 119, ante. 130 EQUITY IN PEOCEDUEE Looking from that trilogy and from Mansfield's cases it will be suggested to tlie reader that Green v. Palmer and logical deductions therefrom are worth more to the jurisprudent than the thousands of volumes from tangled and mired code states. These endless volumes are a "legal jungle." The higher law of procedure is not taught the American judiciary. They cannot construe agreeably to the maxim, In preesentia majoris cessat potentia minoris (In the presence of the major the power of the minor ceases). They do not perceive and vindicate the substantive rights of the state. They have not perceived that all depends upon construction in the light of fundamental law ; that the proverbs of antiquity teach more than the outpour of American courts. They do not understand : Cujus est instituere ejus est ahrogare: He who can institute can also abrogate. From the facts abroad appears Solon's wisdom in quitting his country after he had given it a code. § 158. Diverse Procedure for Various Courts Inimical to the Public Welfabe. — The statesmanship that opposes this view is widely abroad. But when it invoices the facts and views the consequences, it must conclude that procedure is more than a local or provincial subject. In several states and in the federal system there are many intermediate appellate courts. Many of these present incongruous views, and stumbling-blocks in the way of the jurisprudent, who has constantly to deal with a lot of statutes and decisions that are no better and no more permanent than statutes. The Municipal Court Act of Chicago will well illustrate how diverse and warring systems of proce- dure are countenanced in a state. This act rests on a statute that calls for the trilogy of liberal construction, and is aimed at the elimination of the trilogy of procedure. It is framed upon the maxims that are for tivo parties, and not upon the maxims that apply to three parties, as already explained. Such acts must in the end be construed according to the public interests and fundamental law.^** ray 33— End. Stat., § 182; Indianapolis B. B., L.C. 223, 3 Gr. & Bud. See Mnr- 213 U. S. 151. FEUSTEA PEOBATUE 131 § 159. Departure, Variance and Failure of Proof; Practically Synonymous.— In a well-regulated system of procedure, depar- tures are not allowed, variances cannot be permitted, and failure of proof is simply no evidence "to prove the charge as laid." Where the allegations describe one thing and the judgment shows a different thing, a court should sua sponte take notice of this kind of error, and set such a judgment aside.^* Departures and variances are opposed to due process of law, as they were to ' ' the manner of the Romans. ' ' Departures and variances cannot be reconciled with the rules of res adjudicata, nor with requirements to resist objections upon collateral attack, and other conserving principles of procedure.^^ § 160. The Study of Procedure Is the Study of Govermnent. — This is the estabUshment of Eome, the Norman, the English, the federal and best state decisions. We repeat that the state — the crown — the government — is the silent third party in pro- cedure ; the peremptory mandates of this silent third party are vindicated by the rules of the general demurrer, the motion in arrest of judgment, and by collateral attack. The interests of this silent third party are safeguarded by the mandatory record, which must be substantially sufficient. This is the ' ' substance ' ' so often referred to in tests of the general demurrer and its auxiliaries, the motion in arrest, etc. This record often has applied to it the maxim, Quod ah initio non valet intractu tem- poris non convalescit (What is void in the beginning can not be cured by waiver or lapse of time). This is a very instructive maxim, and should be considered in relation to the above matters. § 161. The Estoppels Pervade the Entire Law.— Estoppel of record — res adjudicata — former jeopardy — depend upon respect for the trilogy of procedure, and especially the corollary thereof, "What ought to be of record must be proved by record and by the right record. "^^ The rules of res adjudicata are but rules of procedure (evidence, pleading and- practice). One of the most widely cited cases upon the subject is the Duchess of King- 34_Windsor, L.C. 1, Campbell, L.C. 2, Bristow, L.C. 135, 3 Gr. & Eud. 35— § I 83-123, 1 Gr. & Eud. 36_See §§ 171-200, 1 Gr. & End., also 4 id. 132 EQUITY m PEOCEDUEE ston's Case, L.C. 76, 3 Gr. & Eud. Estoppel arises from maxims of the civil law.*^ Departures, variances and such errors are opposed to the rules of res adjudicata, which arise from principles of the pre- scriptive constitution, such as, Interest reipuhlicce ut sit finis litium (It is for the interest of the public that there be an end of litigation) ; Nemo debet bis vexari pro una et eadem causa (No one ought to be twice vexed for the same cause). § 162. A Recovery Must Follow Allegations and Proofs, or, as otherwise expressed from antiquity, "secundum allegata et probata." Herefrom arises the rule of evidence, of pleading and of practice, which is thus expressed, "The evidence must correspond with the allegations and be confined to the point in issue." It is the allegations that determine the relevancy of evidence. Incompetent, irrelevant and immaterial evidence, when viewed from the allegations, means inadmissible evidence ; such evidence is not admissible with Consensus tollit errorem, the maxim relating to two parties, as already explained. Ee- spect for the allegation and the authority — ^jurisdiction — ^it con- fers upon a court involves the trilogy of procedure, and this involves the state as a silent party. Thus we have three parties involved. Eelating to these, two cannot consent or stipulate away the rights of the third. The attempt to do so is void from the beginning. Quod ab initio non valet intractu temporis non convalescit. Consequently the rule is that evidence not author- ized by the allegations cannot be juridically considered; there- fore there need be neither objection nor exception to it.** But it is due to say that in some courts there are confused and hazy expressions as to the weight due irrelevant evidence.** Conceding that allegations are a necessity, then it logically follows that the recovery must be secundum allegata et probata. Consequently this maxim is a cognate of the trilogy of proce- dure, of which another maxim is, Frustra probatur quod pro- batum non relevat, upon which depends the administration of the laws in a constitutionalism. These principles are not sec- 37— Horn v. Cole, 2 Gr. & Eud. 38— Shutte V. Thompson, L.C. 291, 3 Gr. & Eud. 39— See Theory of the Case, also Variance, 4 Gr. & Eud.: Cape GEE 222 Mo. 461, 486-487; §§ 47, 68, 119, ante. , fc «. iJ. «., ^^ FEUSTEA PEOBATUE 133 ondary to any expressly mentioned in great charters and written constitutions. They are primal. Where the trilogy of procedure is not understood and vindicated there results a wreck of principles and a climax of absurdities. Vno absurdo onto infinita sequuntur (If one absurdity is allowed an infinity follows). CHAPTEE VII (§§ 163-189) VEEBA FOETIUS ACCIPIUNTUE CONTEA PEOFEE- ENTEM : Every presumptioii is against a pleader ; or, Every presumptioii is against the composer of a docu- ment or collocation of words. This inazim is often abbreviated thus: Verba fortius; Fortius proferentem, also Contra proferentem. For obvious reasons Verba fortius is preferred. Where its philosophy is lost the law is lost. The study of procedure is a study of government. Cognate Maxims: 'Ambiguum placitnm interpretari dehet contra proferentem: An ambiguous plea ought to be interpreted against the party pleading it. Story's Eq. PI. 665; 2 Smith's Lead. Cas. 1450, 8th ed.; notes to Eushton, L.C. 5, 3 Gr. & Eud. ; Bro Max. 601; TJ. S. v. Linn, 1 How. (U. S.) 104; 48 L. E. A. 177; 1 Danl. Chan. PI. 612; Lea, L.C. 303, Gr. & Eud.; Pain, L.C. 107, id.; Dickson v. Cole (Wis.) L.C. 34 id., cases (Denials must be conscientious, clear, positive and certain'- if ambiguous or repugnant they stand as admissions of record). Jmbigua r'esponsio contra proferentem est accipienda: An ambiguous answer is to be taken against the party who offers it. Contra: Halboner, 32 Colo. 51 (General denial favored over special. See BicTcson v. Cole, L.C. 34, 3 Gr. & Eud.) tlognate Cases: Pnglish Cases: Dovaston v. Fayne, Sm. L.C; L.C 217, 3 Gr. & Eud ; Colhurn v. Patmore 4 Tvrh. 677, 1 C. M. & E. 73, stated 1 Sm. L.C. 170, 8th ed. notes to Lampleigh; Bushton v. Aspinall, L.C. 5, id.; Fain, L.C. 107 id. (Eepugnant allerations are void); Williams v. Flight, 5 Beavan, 41, 49 Eng. Eeprint 442 (Ee°spondent may adopt either statement) ; Benson, id. 546, 49 Eng. Eeprint 690- Mitf PI 48- 1 Danl. Chan. Prac. 612 (Applies to answers; also in eaui'tv)- Ellis' V. Colman, 25 Beavan, 662, 53 Eng. Eeprint 790 (Equity); ZlZin V. Edwards, is'c. B. 399, 84 E. C. ^■J--,fea, Steph. PI 378; Bro Max 601, 602; K. v. Wheatley, 2 Burr, 1125, 97 Eng. Eeprint 746, T c' 19 3 Gr & Eud • B. v. Mills, 4 Gr. & Eud. (Innocence presumed); Avery v Eool'e, 2 Cowp. 825, 98 Eng. Eeprint 1383 (Verdict will cure am- realfc'c^e^'^' "r?.* r'f iS^'f Sw. 104; Stephen v. Beall, 22 Wall. 239 (Eaui?v)-' every pleader is presumed to state his case as favorably to him as he is abllto do); 190 U^ S. 540-546: 192 TJ. S. U9; Barr,sonv. mxon 9 Pet 483. 535, cited 195 U. S. 133 (What is not alleged cannot te proved a+„ -Pn PI 28- Frustra proiatur) ; Lawrence v. McCalmont, 2 How. (TJ. b.) I9fi. 7t' S V Biogs, 211 TJ. S. 507, 522, 523 (Indictment must be certain); ^ i ^' rrJishaT-LC. 232, 3 Gr. & Eud.: Thomas v. Board, L.C. 10a, 3 Gr. &-Eud • Warner I. Turner, i.C. US, id.; V. 8. v. Biggs, 211 U. 8. 507, 522- 135 136 EQUITY IN PEOCEDUKE 523; Crockett v. Lee, 7 Wheat. 522, 526-527; Doremus v. Boot, 94 Fed. 760, cases. Liberal construction; limits of. Dobson v. Campbell, 1 Sumner, 319; eases, L.C. 232o, 3 Gr. & Eud.; quoted And. Steph. PI. 230: cases; 1 Gr. Ev. 19; Bro. Max. 601, 602; Potter, 203 111. 592, 96 Am. St. 322 (a marriage presumed in favor of a widow claiming an estate in probate) ; Bamond v. Dod, Cro. Car. 6, 79 Eng. Reprint 609, cited Steph. PI.; Mallinckrodt, L.C. 12o, 3 Gr. & Eud.; also 4 id.; Theory of the Case id.; B. v. Goldsmith, L.C. 20, 3 id.; McKown, 77 Mo. 463; Sidway, 163 Mo. 342; Speer v. Skinner, 35 HI. 282 (A bond to the sheriff available to the coroner by intendment) ; Holme v. Lucas, Hobart, 5, 79 Eng. Eeprint, 610 (Verdict cures omission of allega- tion; contra, Foster, 2 Cro. Car. 31, 79 Eng. Eeprint 631; no aider by verdict). Liberal construction bounded by the trilogy of procedure and its policies. C. 4" A. B. B. V. Clausen, 173 111. 100, 103; C, B. I. # P. B. B. v. P., 217 111. 164; Sidway, 163 Mo. 342, 373-374; Boper v. Clay, 18 Mo. 383, 59 Am. Dec. 314; Andrews v. Lynch, 27 Mo. 167; Davis, 27 Mo. 600 (instructive case); Welch, 28 Mo. 30; Eraser, 32 Mo. 461; Becklenberg, 232 111. 120 (overruling Peeples, 19 III. 269; Parker, 61 111. 369); Bush, 101 Mo. 486; Bates v. BulMey (111.), L.C. 225, 3 Gr. & Eud. Illinois: Halligan, 15 111. 558; Becklenberg, 232 111. 120 (admission of jurisdic- tional facts; are strictly construed); McArthur v. Howett, 72 lU. 358, 359, L.C. 99, 3 Gr. & Eud.; Daeey v. P., 116 111. 555, 6 Am. Crim. Eep. 46; P. v. Turner, L.C. 252, 3 Gr. & Eud. (Commitment for crime is presumed to bo for misfortune unless the crime is described); Chicago v. P., 215 lU. 235; Davenport v. Farrar, L.C. 2c, 3 Gr. & Eud.; Hitchcock v. Haight, L.C. 12, id. (Motions in arrest, repleaders, distinctions.) Missouri: Alleging one was treasurer on December 6, 1841, and also on July 2, 1844, does not aver that the incumbent was in ofBce from 1841 to 1844, and that while so in office he did acts for which his sureties are liable. Mar- shall V. Platte Co. (1848), 12 j\Io. 93, citing 1 Chit. PI. 707; Biddle, 13 Mo. 532 (first code case). Continuous insolvency is presumed from an allegation that one was insolvent when a note matured. Mullen, 12 Mo. 307, 309; Dodd- ridge, 222 Mo. 142, 154-155; Davis v. By., 126 Mo. 69, cited and approved McQuitty, 218 Mo. 586, 591; see Continuity, 2 Gr. & Eud. Charging one for services rendered a third person will be aided by the presump- tion that the third person is defendant's child or servant. Wing, 15 Mo. 174 (code) ; Boper v. Clay, 18 Mo. 382, 59 Am. Dec. 314 (bad on demurrer but good after verdict). Claimant of money paid under color of process must negative every presump- tion in favor of the proceedings. Funkhouser, 17 Mo. 225 (code) ; Mallinck- rodt, L.C. 12c, 3 Gr. & Eud. Eepugnant pleadings are void. Pain, L.C. 107, 3 Gr. & Eud.; McKee, 6 Mo. Ap. 416; Needinberger, 11 Mo. 359. Code Cases: Biddle v. Boyce (1850), 13 Mo. 532 (first code case); Eno v. Wood- worth, 4 N. Y. 249, 53 Am. Dec. 370 (Language of common counts as con- clusions; query); Allen v. Patterson (1852), 7 N. Y. 472, 57 Am. Dec. 542- 550 (common counts sufficient); cites and quotes Chitty's PI. and its expo- sition of Verba fortius. Contra: Bowen v. Emerson (1869), 3 Oreg. 452; Hinton's Code Cases, 8; Van Cleaf, 118 N. Y. 549, L.C. 17, 3 Gr. & Eud.; Clark V. Dillon, 97 N. Y. 370 (Facts, not conclusions, must be pleaded); Mallinckrodt, 12a, 3 Gr. & Eud., cases; Andrews v. Lynch, 27 Mo. 167; Han- son, 215 Mo. 257, 277: cases; Jaccard, 32 Mo. 188, 190 (Legal conclusions bad after general demurrer) ; Cantwell, 199 Mo. 42 ; Sidway, 163 Mo. 342, 373-374 ("Our statute requirements"); Hall v. Benderson, 126 Ala. 449, 85 Am. St. 53, n.; De Euiter, 28 Ind. Ap. 9, 91 Am. St. 107; Emerson v. Nash (Wis.), 2 Gr. & Eud.; Miller v. Bayer, 94 Wis. 123; Ban v.B. B., 95 Wis. 69. Florida: Berrin v. Brown, 44 Fla. 782, 103 Am St. 182 (code) ; Clem, L.C. 2c, 3 Gr. & Eud., cases; Atlantic Co., 52 Fla., 165. § 164. What Is Not Alleged Is Presumed Not to Exist.— This rule is enforced for reasons of public policy ; it is one of the state's rules. To illustrate: An indictment for rape must VEEBA FOETIUS 137 charge that it was against the consent of the prosecutrix ; other- wise her consent is presumed.*'* If the appellant had all presumptions in his favor, then no judgment or decree would pass the appellate court; these appel- late courts would reverse all judgments. But they do not, and for the reason that no ground for reversal will be presumed to exist before it is made juridically to appear. De non apparenti- bus. Accordingly results the rule that the statutory record must affirmatively show that it contains "all the evidence that was produced at the trial." The omission of this statement has proved fatal to numberless appeals.*^ § 165. Outline Introduction of a Great Principle.— History has its great empires, characters and events; astronomy its great stars, suns and planets; geography its great continents, oceans, mountains and rivers. All agree that the great land- marks of a science should be introduced at the beginning and not at the end. As it is with other studies, so it is with the law. The law has its great, universal, immutable principles, and these can be found, expressed and taught in any and in all ages. Each leading subject of the law has its few leading principles ; and there are principles that lie at the base of these subjects and pervade every part of the law. Such principles should be sought, expressed, made tangible for every occasion, and be so explicated that they will disclose their prominence and utility. Such a statement and such treatment of principles should be from the roots, from the grounds and rudiments of law. What is meant by these observations will be fully disclosed by the exposition of the principal maxim of this discussion. It is one of the greatest canons of the law. It and its cognates in- fluence the entire administration of the laws ; therefore they are necessities, as will be demonstrated by the following elaboration and illustration. § 166. Verba Fortius Cannot Be Elucidated Irrelatively From Othbb Geeat Canons. — Great principles interweave and inter- lace. The law is an entirety; demonstration of this fact is a needed lesson, and here it will be given. Indeed, this lesson is 40_S. V. Marsh, 134 N.C. 184, 64 L. E. A. 179-195, ext. n. (Morality is •preBumed, iDut Verba fortius is a stronger presumption.) 41— Bates, L.C. 225, 3 Gr. & Eud.; Hughes, 5 Mo. 110; Foster, 4 Mo. 18-23; Crane 7 Mo. 285: Cases; Cannon, 13 Mo. 421. 138 EQUITY IN PKOCEDUEE afforded by a study of tlie trilogy of procedure, of wliicli the above principal maxim is one. In every way we are seekmg to impress this trilogy, and therefore it is oft repeated and made prominent, § 167. The Trilogy of Procedure Is: 1. Be non appareniibus et non existentibus eadem est ratio: A fact not made juridically to appear is presumed not to exist. (See cases cited in relation to Appellate Procedure, Bes Adjudicata and Kemoval of Causes, post.) 2. Frustra prohatur quod probatum non relevat: Evidence without allegations is unavailing. (See observations of the General Demurrer, the Motion in Arrest, Non obstante veredicto, Eepleader and Collateral Attack. 3. Veria fortius accipiuntur contra proferentem, which is the principal maxim of this discussion. § 168. The Trilogy of Liberal Construction Is Involved in the Discussion-. — This trilogy next follows : 1. Consensus tollit errorem : Consent to formal error obviates its effect. 2. Omnia prcesumuntur rite et solemniter esse acta: All acts are presumed rightly, regularly and validly done. 3. Ut res magis valeat quam pereat: It is better to conserve than to destroy. In this discussion the various canons of these trilogies will appear from varying standpoints as correlatives, reciprocals and interactions, not only with each other, but also with the conserving principles of procedure, which are enumerated and defined in Chapter V, 1 Gr. & Eud. All of these matters should be connectedly considered. There will then appear the necessity for new definitions of the manda- tory and the statutory records, of pleadings, and a suggestive expression of the greatest rule of evidence. By this discussion we seek to introduce and well impress a principle which should be familiar to every lawyer — a principle that has but one excep- tion in its operation — and that is the petition and the grant of the government, which is not construed against it for the reason that it is presumed that the grantee thereof prepared and pre- sented the document to which he obtained the signature of the government. Sovereignty — the state — is favored by construction. Conse- quently its grants and petitions are not construed against it. And the government is safeguarded by other rules of construc- tion to which reference will be made. The philosophy involved deserves special attention, for in many states the philosophy has been lost in haze and confusion. Eelating to this, impor- tant observations are made in the sections which next follow. YERBA FOETIFS 139 § 169. Disregard of the Principal Maxim Leads to the Coram NoN JuDiCE Pboceeding. — The judgment being a contract — the contract of record — to which the state is a party, the latter has its contract rights; for the consummation and establishment of a judgment contract the state prescribes mandates which must be evinced according to : *'What ought to be of record must be proved by record and by the right record." Matters not so evinced are conclusively presumed not to exist. Where the right record is required and it is absent or defective, then there applies to the claimant thereunder Verba fortius. This is well illustrated in pleading and proving the defence of res adjudicata. This is a plea of former adjudication arising from the principle, Interest reipublicce ut sit finis litium (It is for the public welfare that there be an end to litigation). Still, estoppels are odious and are strictly taken; therefore the rule is what is not good in substance and is furthermore not properly evinced by the right record is presumed not to exist. An authority must be pleaded, and with precision and certainty. "The pleadings must show authority," is the language of the rule; the officer must set out in hcec verba his process.*^ One claiming rights under the judgment must additionally set the judgment out.** When a judgment is relied upon to support a title founded thereon, or an estoppel, then the judgment and the record supporting it must be pleaded, for an authority must be pleaded, or, in other words, "the pleadings must show authority."** § 169a. Every Presumption Is Against the Exercise of Official AuTHOEiTT Until the Eight fob Its Exekcise Afpiemativbly Appeabs. — In case of an inferior court, the jurisdictional facts constitute the authority, and these must aifirmatively appear upon the face of the judgment record.*^ In case of a judgment from a superior court, if the judgment is sufficient upon its face, the record conferring jurisdiction of the person and of the par- ticular matter will be sought and examined; for which pur- 42— Britton v. Cole, Carth. 443, 5 Mod. 109, Skin, 617, 90 Eng. Eeprint, 856; 1 Salk. 408, 90 Eng. Eeprint, 596, cited Steph. PI. 331; J 'Anson v. Stuart, L.C. 91, 3 Gr. & Eud; Savacool v. Boughten, L.C. 164, id. 43 — Steph. PI. 331 ; 90 Eng. Beprint, 596, 856, supra. 44— Eule VI, Steph. PI., pp. 329-333. 45 — Crepps v. Durden, L.C. 113, 3 Gr. & Eud. et seq. 140 EQUITY IN PEOCEDUEE pose the files, the pleadings and other documents are resorted to. Throughout this examination the trilogy of procedure attends, also its corollaries: 1. "Wha't ought to te of record must be proved by record and by the right record"; 2. "Plead,ings are the juridical means of investing a court with jurisdiction of a subject-matter to adjudicate it." Herein are requirements of the state, the silent third party, and for it the trilogy of procedure stands and safeguards the interests of the state. The document which will not stand the test of this trilogy is declared bad in substance, and this ren- ders the proceedings coram non judice; upon such defects there attach the operations of the general demurrer, the motion in arrest, the motion non obstante veredicto, or the order of a re- pleader, and collateral attack. Debile fundamentum fallit opus.^^ § 170. The Trilogy of Procedure Is Incompatible With Fluc- TUATiNG ExjLEs OF CoNSTKucTioK. — This trio of rules is for the state or government, and depends on a certain and invariable standard for certainty, in all cases and in all matters alike. The three degrees of certainty, extendedly discussed in works on evidence, pleading and practice, are incompatible with the operation of Verba fortius and its cognates. There are and can be no such three degrees. A document is either certain or un- certain. The mind cannot form an intelligent conception of such confusing terms as these "degrees": First, "certainty to a common intent ' ' ; second, ' ' certainty to a certain intent in gen- eral"; and third, "certainty to a certain intent in every particular. ' ' We must stop trying to build the law upon quick- sands. These facts will indicate the importance of a right com- prehension of the principal maxim. It depends upon reasonable certainty, which is in all cases alike. All records must be certain. § 171. The Trilogy of Procedure Is Composed of Public Policy Eules. — They are the safeguards of the government's interests in judicial operations. The auxiliary means of en- forcing the operation of this trilogy are the general demurrer, the motion in arrest, the motion non obstante veredicto, the ne- cessity for a repleader, and finally but forever, objections upon 46— Steph. PI. 96-99. See Collateral Attack, 2 Gr. & Bud. VEEBA FOETIBS 141 collateral attack.*^ In the note are federal cases with which every practitioner, should be familiar. These cases and cases cited therewith in the Grounds and Rudiments of Law demon- strate that the criminal case is not more strict in its requirements than is the civil case.*^ Chitty, Stephen, Gould and their fol- lowers quoted much from Coke, and set themselves down as advocates of his three degrees of certainty. They had to find some way of applying these fluctuating rules of pleading, of construction and practice. And they did in two ways. One way was to view the capital case most strictly, the lesser crime with less strictness, and the civil case least strictly of all. By their loose views and expressions they made the way for errorists and empiricists to apply the trilogy of liberal construction where that of strict construction should be adopted. Another way of expressing the error was that there are three degrees of fluctuating construction, and these are "before trial," "at trial" and "after trial." Thus the cases show a classification depen- dent on (1) the nature of the case, and (2) the stage of the proceedings.*^ This is wrong. The stage of the proceeding cannot cure fatal defects, and as to formal ones, the verdict does not have to be reached to cure them. They are waived forever when not taken advantage of at the proper time. § 172. Matter of Substance in the Right Record Essential. — The coram judice proceeding is required by the government; if substance is lacking, the record and all founded thereon will fall. A judgment without the required substance in the right record may be likened to the house built upon the sands, when the rains descended and the floods came and the winds blew. Debile fundamentum fallit opus. The mandatory record is tested at one stage by the general demurrer, at another by the defendant's motion in arrest of judgment, or by the plaintiff's motion won obstante veredicto; or by the order of a repleader; or by objections upon collateral attack. Here are five matters of the utmost consequence to the practitioner which he should 47 See CoHateral Attack, 1 Gr. & Bud., also 2 id.; Windsor v. McVeigh, Ii.C. 1 Zid.- Campbell v. Porter, L.C. 2, 3 id., et seq.; V. S. v. Cruikshank, L.C. 232, 3 id.- Slaeum v. Pomery, 4 id.; Crockett v. Lee, 7 Wheat. 522, 526-527 (Marshall, C J ■) • Eushton V. Aspinall, L.C. 5, 3 Gr. & End. (Mansfield). ' 4^1 Gr. Ev. 65; 2 id. 7; 3 id. 10; 196 TJ. S. 375, 395; Sto. Eq. PI. 10, 28, 665. See Story, 4 Gr. & End; Bes Adjudicata, 1 id., also 4 id. ' 49 gge Theory of the Case, also Variance, 4 Gr. & End. 142 EQUITY IK PEOCEDUEE well comprehend. Herefrom will appear the importance of the general demurrer, and why it is never waived, but may be raised or renewed at any time, under one name or another; also the reason of the rule that the general demurrer attaches to and searches the substantial pleadings and fastens itself to the first fault. He who made the first fatal mistake is charged with the consequences. A response to a pleading lacking substance is attended with no liability ; a bad pleading may be answered by one no better. A demurrer to a bad answer is carried back to a defective statement of the cause of action; here one in effect demurs to his own pleading. Of course he may directly object to his own pleading, and for the first time, in an appellate court.'" In relation to all of the above matters, the rule of construe- tion is uniformly the same, and this rule is, Verba fortius accipi- untur contra proferentem.^^ To these matters the trilogy of liberal construction has no application ; where it is applied, there the theory of the case is enthroned, and variances and depart- ures must be countenanced. The rules forbidding these mat- ters arise from the trilogy of procedure; and these forbidden matters can arise and be fostered only from a misapprehension of the necessities for the due administration of justice.*^ To illustrate: A bona fide purchaser is protected to the extent he actually pays a consideration.'* Giving a negotiable instrument is sufficient. Now, if a plea stated that a note was given, omitting an averment that the note was negotiable, the presumption would arise that the note was non-negotiable, and that therefore there was no payment of a consideration, accord- ing to the rule that it is presumed that a pleader states his cause of action or his ground of defence in its very best aspect. There is a difference between "a note" and "a negotiable note." By averring the former the latter is excluded. Expressio unius est exclusio alterius; what the pleader does not aver he is presumed not to have. De non apparentibus et non existentibus eadem est ratio (What is not juridically presented cannot be judicially considered) ; and what is not alleged cannot be proved. Frustra 50— CampbeU v. Porter, luC 2, 3 Gr. & Eud. 51— Goldman v. Edwards, 18 C. B. 399, 84 E. C. L. E.; cited with contra cases. Bro. Max. 601, 602; Steph. PI. 146. 52— Crockett v. Lee, 7 Wheat. 522, 526-527. 53— Swift, 4 Gr. & Eud.; Bassett, L.C. 395, 3 id.; Le Xeve, L.C. 396 id VEEBA FOETIUS 143 probatur quod prohatum non relevat. Crockett v. Lee, 7 Wheat. 622; Sto. Eq. PI. 28. Presenting "a note" for tlie considera- tion is not presenting "a negotiable promissory note"; unless the pleading presents the material facts, it is bad in substance and is incurable. Quod ab initio non valet intractu temporis non convalescit.^* A case cannot be made better by proofs than it is made by the pleader in his allegations. Jurisdiction of a subject-matter is conferred by the pleadings and not by con- sent.^^ A recovery must be secundum allegata et probata. Frustra probatur. ^^ § 173. The Trilogy of Strict Construction Is the Govem- ment's Test ; it is a fixed and standard test ; it is the same in all cases, and at all stages, without "variableness or shadow of turning."'^ It has numberless interactions with construction, with collateral attack and its cognates already mentioned. Upon it depend the conserving principles of procedure. Chapter V, 1 Gr. & Eud. For all of these matters this trilogy is an irre- ducible minimum, incapable of augmentation or diminution. A North Star and its "pointers" shine on from age to age to guide the traveller in the pathless desert, the mariner, the astronomer, geographer, surveyor, architect and draftsman of great dams, canals and edifices, and the jurisprudent has nothing less to guide him, if he would but look, reason and reflect. The condition which results when the maxims are abandoned ap- pears from the inextricable tangle of decisions and texts of a thousand books for each state and jurisdiction. See Preface, Vol. 3, Gr. & Eud. In several American jurisdictions, so to speak, one brick is laid according to a straight edge, and the next is laid by a dog's hind leg. And so it is where the statu- tory record is substituted for the mandatory record, and the trilogy of liberal construction is substituted for the trilogy of procedure or of strict construction. .Herefrom arises not one Babel alone, but a Babel in every courthouse, and in every set of supreme court reports, wherein is to be found the "late case," which for a moment, but a moment only, it is assumed will meet the acceptance of a befogged and erratic profession. From these 54__Crocl£ett v. Lee, supra. 55 sto Eq. PI. 10; §47, ante. 56— Secombe v. Campbell, 18 Blatch. 108, 109, citing Boone v. Chiles, 10 Pet. 177; 2 Pom. Eq. 746-751. 57_Golclman v. Edwards, supra. 144 EQUITY IN PEOCEDUEB facts the provincial lawyer can see that he has been led into a jungle of bewilderment. Attempts to incorporate three degrees of certainty, and fluc- tuating construction, dependent on the stage of proceedings, have resulted in substituting the trilogy of liberal construction for the trilogy of strict construction. Thus the state as a silent third party is eliminated, with all of the so-called "technicali- ties." Consequently, the consent of the parties named upon the record is what is looked after-, and is gathered from any- where, or nowhere, as best suits the antipathies or affections of courts. This is manifest from numberless cases.®* The prescriptive constitution is the fundamental law of all ages. Disregarding its principles is like directing a ship with- out star, compass, or sextant. And this is now the attempt in several American jurisdictions; and as a result American law has struck upon hidden rocks, whereon its harmony and sym- metry are distorted and beaten until it presents a shapeless wreck of perversions and perplexities. Its literature is now an overtoppling bulk of unwieldy outputs of commercialism. Thus the philosophy of the law is lost, and when this is lost the law is lost. The law without its philosophy is hateful and fore- boding, and when so, it is a menace to the welfare and perpetuity of government. § 174. Jurisdictional Requirements Must Affirmatively Ap- PEAB IN THE ElGHT DOCUMENT AND EeCOED. Public policy the government — requires compliance with fundamental law, also that this compliance be evinced by the right record. This com- pliance and attestation are essential for the coram judice pro- ceeding, which the government demands as a third party to the judgment contract. The consent of the parties named upon the record, dispensing with fundamental requirements, will not be respected by the gover.nment. Res inter alios acta alteri nocere non debet (A transaction between two ought not to oper- ate to the disadvantage of a third). Consequently the govern- ment may open the record at any stage from the general de- murrer to collateral attack inclusive, and pronounce the proceedings coram non judice. Logically the same rule of con- struction attends throughout, in judging the general demurrer^ 58— See title Illinois, 2 Gr. & Eud. ; also Missouri, 4 id. VERBA FORTIUS I45 the motion in arrest, non obstante veredicto, repleader and col- lateral attack; and Verba fortius applies throughout, without fluctuation, augmentation or diminution, to all of these matters alike. What the pleader has not alleged he has not. This is the necessary and universal rule. Illustrations of these conclu- sions are deducible from Rushfon v. Aspinall, Dovaston v. Payne and U. S. v. Cruihshanh?^ § 175. Formal or Waivable Matters Are of Concern to the Pabties Named on the Eecped.— These must be presented by the statutory record, which is strictly construed against the appellant, or against the one who assigns error and seeks a reversal of the judgment, for matter presented by the statutory record. The matter hereof depends on proper objection, excep- tion, motion for new trial, assignment of errors, and argument of these errors. To all of these the principle expressed in Consensus tollit errorem is applied. The matter of the statu- tory record is of no concern to the state ; it concerns only and personally the appellant, who will be held to have waived formal error unless he has preserved and presented it with precision. Interest reipublicce ut sit finis litium (It is to the welfare of the public that there be an end to litigation). ^° Verba fortius applies with strictness to an appellant and his rights to a reversal for matter shown upon the statutory record ; he is governed by exact and precise rules. There is ever applied to him, Expressio unius est exclusio alterius (The express men- tion of one thing is to the exclusion of all others). Hereto applies the trilogy of liberal construction in behalf of the appellee.^ ^ The trilogy of procedure or of strict construction applies to the mandatory record, for and on behalf of the state; but the trilogy of liberal construction applies to the statutory record, the matter whereof concerns two parties only, the plaintiff and de- fendant in the action. The state may speak to test the sufficiency of the record ; for the state the amicus curia may speak. What he may speak of is never waived. Of course either party to the 59— L.C. 5, 217 and 232, 3 Gr. & Bud.; Sto. Eq. PI., § 10; see Story, i Gr. & Eud. 60 — II 53, 103, 1 6r. & Bud.; also L.C. 290a-299, 3 id. 61 — II 53, 1 Gr. & End.; Mailers, 170 111. 434; Bates, L.C. 225, 3 Gr. & Bud.; Lane 11 Mo. 408; Dickey, 6 Mo. 186; Gale, Id. 253; Crane, 7 Mo. 285; iTul-vyeider, 216 Mo. 582, 591; Ins. Co., L.C. 157, 3 Gr. & Bud.; Apache, 177 U. S. 538. 146 EQUITY IN PEOCEDUEE record may speak; indeed, to the coram non judice proceeding, anyone — the entire public — the whole world, may speak, and object to it at all stages, times and places. The coram non judice proceeding is no estoppel ; for the first rule of res ad judi- cata is, that the proceedings must be coram judice. In theory it is the state which may make this objection, without regard to the relations, wishes or consent of either party named upon the record. Quod ah initio non valet intractu temporis non con- valescit. But the appellant in the statutory record is governed by entirely different rules ; for he must make his objections and his exceptions to error, and keep his exceptions good by artful and precise practice. From the strictness with which the state thus treats the statutory record it may be perceived that the law does not favor technicalities, but, on the contrary, the law favors a disposition of causes upon their merits,®^ and there- fore is desirous of upholding the judgment of the trial court, if only it appears that the state's requirements have been met in the mandatory record. The objections which the state as a third party may make to a judgment contract, an appellant also may make, and exactly as the state may. But the appellant faces the liberal rules of con- struction, when he opens the statutory record to show material error for a reversal. In the foregoing matters much may be found for the con- sideration of the practitioner, who should read in connection with the above the discussion introducing the conserving prin- ciples of procedure in Volume 1 of the Grounds and Rudiments of Law. § 176. Codes, Practice Acts and Statutes of Amendments and Jeofails Vainly Deny Vekba Fortius. — The high, stern and oft-repeated commands to apply the canons of liberal construc- tion to the concerns of the state have been useless and unavail- ing.®^ Courts do not make law ; denying the law is not making law, but is the reverse. From the library can be picked enough matter to fill long rows of books, all denying the principle in Verba fortius. No great principle has been more bitterly assailed and savagely hewn and scaled than has been that prin- 62^§§ 53, 103, 1 6r. & Eud. 63— See Illinois, 2 Gr. & Bud.; Missouri, 4 id. YEEBA FOETIUS WT ciple ; and now, after all, has the law been changed? Have legis- latures and courts changed the law in a single state? And fur- ther, can the principle in Verba fortius be changed? If it could be, it would be in both Illinois and Missouri. But in both of these states more can be found sustaining this principle than can be found denying it. Technicalities that are the safeguards of the law are above the popular clamors for "substantial justice." In the states last mentioned the code and the practice acts, or the statute of amendments and jeofails are held to apply to formal matters only. These statutes have not enlarged the, operation of Consensus tollit errorem beyond its province in: Eoman, Norman, English and federal law. We have stated the strictness with which the statutory record is viewed and is dis- posed of if possible to advance the principle in Interest reipubliccB ut sit finis litium. To this old law the "new," the "modern," and the "progressive" law has added nothing. This; fact disposes of many slanders upon the code which have been uttered and circulated by both courts and authors. § 177. Codes Do Not Abolish Fundamental Law, although prominent courts and authors have thought otherwise, as will appear by reference to the preface to Stephen's Pleadings, Heard's edition, 1867. Therefrom we quote : "We shonld not omit to notice, in this connection, the discriminating fidelity with Tfhich the Supreme Court of the United States have adhered to and admin- istered the common law of Special Pleading. 'This system,' says Mr. Justice Grier, in 1857, 'matured by the wisdom of ages, founded on principles of truth and sound reason, has been ruthlessly abolished in many of our States, who have rashly substituted in its place the suggestions of sciolists, who invent new codes and systems of pleading to order. But this attempt to abolish all species, and establish a single genus, is found to be beyond the power of leoislative omnipotence. The result of these experiments, so far as they have come to our knowledge, has been to destroy the certainty and simplicity of aU pleadings, and introduce on the record an endless wrangle in writing, per- plexing to the Court, delaying and impeding the administration of justice. "04 "And in 1861 the same learned judge remarked: , 'It is no wrong or hardship to suitors who come to the courts for a remedy, to be required to do it in the mode established by the law. State legislatures' may substitute, by codes, the whims of sciolists and inventors for the experience and wisdom of ages; but the success of these experiments is not such as to allure the Court to follow their example. 's" 'Whoever really understands the important objects of Pleading,' said Lord Abinger, 'will always appreciate it as a most valuable mode of furthering the administration of justice, though some cases are cal- culated to create in the minds of persons unacquainted with the science but a mean opinioa of its value.' "»• 64 — McFanl t. Eamsey, 20 Howard, 525. 65 — ^Fami v. Tesson, 1 Black, 315. 66— Fraser v. Welch, 8 M. & W., 634. 148 EQUITY m PEOCEDUEE Under the titles Theory of the Case and Variance, in Grounds and Rudiments of Law, Vol. 4, aTe quotations from noted authors acclaiming the code as a new discovery and as the sup- posed consummation of the immolation of the trilogy of proce- dure. It can not be said that any of these authors viewed funda- mental principles as did Justice Field in Green v. Palmer,^'' or Judge Sherwood ia Mallinchrodt,'^^ or Judge Barclay in Rush V. Brown.^^ Construing the code in the light of the trilogy of procedure and its conserving principles will clearly disclose the fact that the necessities of the administration of justice are reafSrmed again and again by the code. Verba fortius is applied m code cases as it is in the English and federal courts, notwithstanding the doubts and limitations expressed in Chitty's, Stephen's and Gould's Pleadings, and other authors who do not understand immutable principles. It is a maxim of universal application ; it applies to every colloca- tion of words ; it is a principle of the prescriptive constitution. But it is very apparent that organic law has not been compre- hended by all courts and authors. The code language expressing fundamental law is not understood by some ; it is not perceived that a great principle may be clothed in varied expressions ; that equity looks at substance and not form. § 178. Position and Importance of Fundamental Law.— From opinions of courts, made and published to establish law, it is opportune to observe that this end now appears a hopeless and disheartening failure. For the fact is that any intelligent retrospect forces every jurisprudent to confess that some domi- nating cause or causes have submerged the, legal profession with error, confusion and empiricism. To illustrate: Take the question, Will a default be set aside to permit the pleading of the statute of limitations? Generally throughout the stales there will be found a great conflict of opinion upon this ques- tion. And so it is with hundreds of questions. But attention is called to the fact that this last question involves a philosophy arising from Interest reipublicce ut sit finis litium, which is not taught nor understood. The relations of this maxim to the statute of limitations and all dilatory, abatement, formal and fi7— L.C. 90, 3 Gr. & Bud. 68— L.C. 12a, 3 Gr. & Eud. 69—101 Mo. 58G; also in Davis. 126 Mo. G9, 75, 78. YBEBA FORTIUS 149 disfavored pleas are not so elucidated that it is comprelieiided, that if a matter waivable in character is waived for an instant^ then it is waived forever, and that reasons of public policy demand that there should be no restoration to a party of formal or disfavored grounds which he has waived or abandoned. To allow this would be to oppose the dictates of Interest reipublicce ut sit finis litium, in furtherance of which the statute of limita- tions was erected, and therefore it should never be construed to nullify. the policies of that statute by setting aside defaults, with all their delaying and ever-attending haggling conse- quences. The opposing decisions on this point are nearly evenly divided; so it is that looking to the weight of authority is an ever-changing test and one which has never been at rest, and which, if the future may be judged by the past, never will be. Starting with Story's commendation of the purposes of the statute in Bell v. Morrison (U. S.), it is frequently held that the defence is one to be favored, and should be classed as a merito- rious defence, although by so doing the purpose of the statute is nullified. The philosophy of the law in this question is, that the purpose of the statute is to serve Interest reipublicce, etc., by cutting off litigation, whereas to permit it to be pleaded after there has been a default, which has already stopped the litiga- tion, would be to open the whole case to further litigation. This is not considered in the cases allowing such a use of the statute. Where the philosophy of the law is lost the law is lost. So much where a little question is involved. What have come to be the consequences of substituting the trilogy of liberal construction for the trilogy of procedure we choose to leave to the jurisprudent to consider and estimate. From a glance it is perceivable that if Verba fortius and its cognate maxims and illustrative cases are denied, then number- less landmarks of the law are either removed or exposed to be silted over by judicial opinion not founded on principle. And this is what has happened where the trilogy of procedure and its philosophy have been lost in equivocal discussions, in hazy doubts and the counting of cases, in prevarications and professed respects for empirical courts and authors. The discussion of Verba fortius by Chitty, Stephen and Gould will well indicate some of the causes that contribute to the decadence and even the 150 EQUITY IN PEOCEDUEE degradation of the leading subject of the law, and the obscuring of universal principles demanding clear, pronounced and posi- tive exaltation and explication from every court and author. And so they should be taught in schools. Looking from what has happened, it is not only the right but the duty of every lawyer to offer every possible suggestion that may be useful for safeguarding the philosophy of proce- dure, which includes necessities for the due administration of the laws. The teaching that these necessities are outworn and obsolete theories should be openly opposed and confuted. De^ nouncement of the familiar maxims which safeguard the stability and certainty of law should not be overlooked in silence, much less condoned, by the guardians of the greatest asset of government. Let every jurisprudent consider the trilogy of procedure, and then determine if a legal education is rightly begun, much less finished, without a right comprehension of those great and im- mutable principles. In this discussion of Verba fortius we have sought to present requisite data for the correct answer to the last question.''" § 179. Appellate Procedure,' Presumptions In.— A court of errors opens the mandatory record removed into it, and for the state examines for the coram' judice proceeding. If this is absent then the judgment is reversed without regard to the wishes, the relations or the conduct of the parties named upon the record. This review is by the court sua sponte.''^ This review applies the tests of the general demurrer in all its stages, and even includes collateral attack. The test of the coram judice proceeding is always the same without regard to degrees of certainty, or fluctuating rules of construction. For the state or government the safeguards, and the rules therefor, are the same. Appellate courts require records and certainty, and for these there exist rules of reasonable certainty. The statutory record presents formal or waivable matter. Its establishment is governed by strict rules in order to confer jurisdiction of its matters upon the appellate court. Through- 70 — See Theory of the Case, also Variance, 4 Gr. & Eud. ; also the Green Bag, I'eb., 1910, and the mention of prominent names, also prominent in the Congress of the Great Lawyers, St. Louis, 1904; the effusions herein are in contrast with the references to the "jungle" in 1910. 71— Campbell v. Porter, L.C. 2, 3 Gr. & Eud., et seq. VEBBA FOETIUS 151 out all considerations of this record tlie principle in Interest reipublicce ut sit finis litium attends. As to matters that are formal and relate to the parties named upon the record only, they may be waived, condoned or stipulated away as the parties see fit. Here the state favors waiver, and the principle expressed in Consensus tollit error em and its cognate maxims of liberal construction are constantly applied. To safeguard against waiving formal rights requires apt and precise knowledge, of making proper objections, and taking like exceptions, making a motion for a new trial, assigning error in the appellate court, and properly arguing the errors assigned. If the matter of the statutory record is waived for an instant it is waived forever. After waiver, the consenting party can never be restored to his formal rights. To do this would be to oppose Interest reipubliccs. It seems well to observe in this connection that the above views of waiver apply to all waiv- able and formal matters; if a party appears generally, then he cannot limit the appearance, nor ever afterward object to anything relating to the process or the service of process. If one waives his right to plead the statute of limitations, he can- not afterward plead it. This statute was enacted for peace and repose, and in furtherance of Interest reipublicce, and so it must be used; and therefore it must be promptly pleaded and relied upon. Except as a plea of peace and repose it is not favored; consequently it is only given one opportunity and that the one the statute contemplates; such pleas ought not to be aided by judicial grace ; waived and abandoned matters of a personal nature will not be made harassing by intermittent policies. Election as to waivable matter when once made is final and conclusive. But meritorious defences, such as challenge the "cause of action," the state is interested in; this involves questions of jurisdiction and the right to apply to a court for official aid. All matters relating to these questions, courts are inclined to favor, and may allow amendments of; also may set aside a default to allow the presentation of. Every presumption is against a pleader, if- he waives or abandons formal or waivable matter ; but otherwise as to matter essential for the coram judice proceeding, or to the merits of 153 EQUITY IN PEOCEDUEE the ' ' cause of action. ' ' A defence to this arising from a statute must be presented to serve the spirit of that statute, and not so as to offend that spirit. Abstracts of record are judged by Verba fortius;''^ and so it is with motions and pleadings involv- ing formal matter.'^ ^°- § 180. The Statutory Record May Be Waived, and it may be waived in many ways. It must be properly constituted and be filed at the right time, or it and all its matters are waived. The policy of the law is to dispose of it by waiver if possible. Inter- est reipublicce ut sit finis litium.''^ Verba fortius is strictly applied to it, and attaches to all mat- ter not properly objected to, excepted to, properly presented in a motion for a new trial, and this repeated in the assignment of errors; each ground not argued is waived.'^* So it appears that the statutory record depends upon a series of proceedings and documents, without which that record is waived. Many cases show that it is presumed that evidence was intro- duced which does not appear in the record, unless it is stated in the record that all the evidence introduced in the cause is pre- sented in the record. The following cases will indicate the importance of the rule involved.'^^ § 181. Res Adjudicata Pleas; Presumptions.— Estoppels are odious, and every presumption is agaiast them, until the right to apply them affirmatively appears by the right record. For estoppel of record the mandatory record only is to be considered. This rule is merely a paraphrase of Verba fortius. Res adjudi- cata pleas are judged by the same tests as is the mandatory record in an appellate court of errors. The tests are for the coram judice proceeding. That the proceeding must be coram judice is the first rule of res adjudicata.''^ § 182. Removal of Causes; Facts Must Appear With Cer- TAiNTY. — There are certain causes that may be .removed from 72— Vandeventer t. GoSs, 4 Gr. & Eud. 72a— Kraner, L.C. 299, 3 Gr. & Eud. 73— §§ 53, 103, 1 Gr. & Bud.; L.C. 290a-299, 3 id.; Mailers, 170 111. 438. 74— Atlantic, 2 Gr. & Eud. 75— Bates, L.C. 225, 3 Gr. & Eud.; Dickey, 6 Mo. 126 (instructive case); Gale, 6 Mo. 253 (Pacts must 'appear in the right record juridically preserved and presented). S.P., Crane, 7 Mo. 285; cases, Magellan, 7 Mo. 4; Foster, 4 Mo. 18 (Word "whereupon" only includes the last matter mentioned); Hughes, 5 Mo. UO; Williams, 5 Mo. 248, 255; Greenia, 14 Mo. 528. See Consensus tollit errorem. 76— See §§ 171a-200, 1 Gr. & Eud.; also 4 id. VEEBA FOETIUS 153 state to federal courts. These courts require certainty of the facts upon which the removal depends; and these facts must appear in the right record; the plaintiff's statement of his cause must present the ground of removal. The applications and the record showing cause for removal are tested strictly by the trilogy of procedure.'^ ' Every presumption is against a pleader. If it is merely averred that he was a citizen of another state, it will not be inferred that he was a citizen of another state when the cause was commenced.'* Dovaston v. Payne and the criminal case are not more strict than are the requirements for certainty in removal of causes. Grounds for removal, which in almost all cases depend on diverse citizenship, must be stated with strictness and preci- sion. Matters of which federal courts will take cognizance are attended with many disappointments, as will appear from the decisions. In cases removed from the highest court of a state to the federal Supreme Court, when and how the character of the federal question must be made to appear, discloses the fact that organic guarantees, and grave jurisdictional defects are sometimes viewed wholly as formal or waivable matters. In this class of cases the trilogy of liberal construction is applied; all is viewed as a personal and waivable matter between the parties named upon the record. The coram non judice proceeding, the general demurrer and all its cognates at various stages, to and including collateral attack, are brought within the rule of aa enlarged operation of Consensus tollit errorem, that practically eliminates government as the third and silent party, as it is recognized to be in cases originating in federal courts.''* The mandatory record in federal courts presents its errors without regard to objections, exceptions, and assignment of errors.*"* And yet it is otherwise with the mandatory record from the highest court of a state to the federal Supreme Court. "Whv should this be so? Every presumption is against an appellant in this class of cases, even when the record is coram non judice, 77_t)oremns v. Boot, 94 Fed. 760; Walker v. Collins, 167 U. S. 57, 60; Little V. Giles, 118 TJ. S. 596; Jackson v. Aahton, 11 Pet. 93 (Allegations in caption ™^" yg^lxhomas V. Board, 195 TJ. S. 207, L.C. 10a, 3 Gr. & Bud ; Doremus v. Boot, /p-L-Windsor, L.C. 1, 3 Gr. & Bud.; Perez v. Fernandez, L.C. 2e id.; see Fed- eral Ouention, 2 id. „ „ „ , 80_-Windsor, L.C. 1, 3 Gr. & Bud. 151 EQUITY IN PEOCEDUEE It may be said that this class of cases is viewed from a theory- of-the-case standpoint. There is no class of cases surrounded ■with more subtlety, technicality and refinement. "When and how a party shall begin to take his exceptions to the action of the state court is the burden of many decisions. From them all it is difficult to state a general rule; the letter of the constitu- tion, the precise word of the statute, and the particular case and the "late" case construing the letter and the word, are the necessary equipment in federal practice,- Broad, maximized rules are not so much sought or respected; it is rather a case system practice. The attempt to make way for dual governments in procedure adds greatly to the responsibilities and anxieties of practitioners. The day when all will admit that the establish- ment is beyond human capacity cannot long be deferred. Eeference is made to the federal cases above cited to sup- port the trilogy of procedure in the federal courts. § 183. Verba Fortius Is Related to Important Rixles. Among these are : Favorabiliores rei potius quam adores habentur: Defend- ants are rather to be favored than plaintiffs. Adore non probante reus absolvitur: If the plaintiff does not prove his case the defendant is absolved ; or, in other words : Semper prcesumitur pro negante: The presumption is in favor of him who denies ; or, in pther words : Adori incumbit onus probandi: The burden of proof lies on the plaintiff ; or, in other words : The burden of proof depends on him who holds the affirmative. The principal maxim and its cognates are the datum posts of numberless rules, discussions and cases.^^ The above principles are from the prescriptive constitution, the organic law of antiquity, and they are the necessities of a constitutionalism, of governments that are accusatory and not inquisitorial and confiscatory.®* Due process of law arises from the trilogy of procedure and its conserving principles.** 81— Bonnell, L.C. 185, 3'Gr. & Eud. 82— Hale v. Henkel, 201 V. S. 43. 83 — §§ 83-124, 1 Gr. & Kud.; see Audi alteram partem, 2 id.: Windsor t McVeigh, L.C. 1, 3 id. VEEBA FOETIUS 155 The consequences of wabbling views and fluctuating con- struction of a universal canon of interpretation is manifest from the Supreme Court reports of several states.®* The discussions of the general demurrer and its cognates, the motion in arrest, also non obstante veredicto, the repleader, objections upon collateral attack, and the mandatory record, already referred to, are inseparably connected with many view- points from Verba fortius. Herefrom it appears as a Mount Everest among the orient peaks. § 184. Conclusions of Law Not Sufficient Allegations.— Facts must be pleaded, and when they are not, then every presmnp- tion is against a pleader. The pleading that is obnoxious to the general demurrer is not sufficient at later stages of the proceed- ings ; it will not support a judgment.®^ The facts constituting a cause of action must appear with certainty. The pleading that does not satisfy the requirements of the trilogy of procedure is vulnerable to a general demurrer, with all of the consequences above indicated. That "he is a pestilent fellow," and "a preacher of sedition," are conclusions of law, and described no crime known to the laws of Eome, against Saint Paul. Centuries later Mansfield decided the same thing in B. v. Wheatley,^'^ and similarly it was decided in U. 8. v. Cruikshank.^'' The facts con- stituting a cause of action must affirmatively appear in the right record; the facts constituting a crime must appear; the facts showing fraud must appear with certainty. General allegations are insufficient. No one is held to answer a supposed wrong until it is sufficiently charged. Evil is not presumed ; no one is presumed to be a wrongdoer before the allegations are made, and if these are denied, then until proof of these allegations is made. These conclusions arise from the trilogy of procedure ; in the light of this all pleadings and all records should be read and construed. Many cases can be found and cited in opposi- tion to that trilogy, but such cases manifestly violate funda- mental law. 84 — See Illinois; Misgonri, 2 & 4 6r. & Eud. 85l_U. S. V. CniikBhank, L.C. 232, 3 Gr. & Eud.; Mallinckrpdt, L.C. 12a, id.; Hopper, L.C. 4, id. 86— L.C. 19, 3 Gr. & Eud. 87— L.C. 232, id., Hanford v. Davies, 163 TT. S. 273, L.C. 86, 3 Gr. & Eud.; Howard v. S., L.C. 166, 3 Gr. & Bud., cases (Conclusions of law void); J 'Anson V. Stuart, Smith's Lead. Cas., 8tli ed. 156 EQUITY IN PEOCEDUEE § 185. The Allegation, the Admission, the Denial and the Issue Aee All Oovekned by the Tkilogy oe Procedure. — Re- quirements for the certain allegation have already been suffi- ciently stated. The pleader may admit an allegation either expressly or impliedly, and either way is equally effective. Facts admitted are conclusively presumed to be true in the. action in which they are made; and between the same parties they are an estoppel in all collateral suits.** On principle, an admission in one relation is admissible in other relations. If one is called upon to deny a fact, but instead admits it as true, he makes evidence against himself by such admission, upon the principle, Allegans contraria non.est audiendus (He who alleges contradictory things shall not be heard). Eelating to the ad- mission and the denial there is a wilderness of discussion.*^ In the discussions relating to these matters, fundamental prin- ciples have been given practically no consideration ; little or no attention has been given the trilogy of procedure, or necessity, or public policy, or morality, or convenience or reason. This conclusion will find support from the pages last cited. Such is the result of disregarding fundamental law, the principles of the prescriptive constitution. § 186. Conclusions of Law and of Fact Cannot Be Defined by Hard, Sharp Lines. — ^Defining these matters is like defining de- partures, variances, and failure of proof as distinctive matters ; or Coke's three degrees of certainty, or Chitty's three species of aider. A record must have reasonable certainty ; now, what is reasonable certainty will depend upon the nature of the case, what are the jurisdictional facts of that case or that "cause of action," and where these facts must appear. Illustrations of these conclusions will be found in requirements for pleadings in cases of equitable exceptions to the statute of frauds f° also in res adjudicata, and in justification pleas; also in indictments for perjury, bribery and forgery. In all these cases reasonable certainty is required, and in all of them certainty is indispen- sable. If a document or contract is sued on directly, greater certainty would be required than where its contents arose in a 88— Outram v. Morewood, L.C. 25, 3 Gr. & Hud. ; Cromwell v. County of Sac, L.C. 26, id. J . 89— Seattle Bank v. Jones, 48 L. E. A. 177-210, L. C. 36, 3 Gr. & Eud. 90— Lester v. Foxeroft, L.C. 341, 3 Gr. & Eud. VERBA FORTIUS I57 CGll'ateral ^vay. If an ex -parte iu junction is asked, then the evidence may be pleaded. § 187. Prolixity Is to Be Avoided.— Consequently one may plead a document in a general way and according to its legal effect, and not in hcec verba. But pleading by legal effect is a conclusion of law, or of fact, this distinction depending on the way the question arises. Phases of these questions show that they interweave or interlace, so that they resist precise and accurate definition. Questions involving the conclusion of law and of fact are individualistic. This is illustrated in cases like Moore v. C.^^ They must be viewed from the nature of the case, the trilogy of procedure, and its conserving principles. Conclusions, when so employed as to make a pleading am- biguous or uncertain, subject it to the operation of the general demurrer and all of its consequences. This brings it within the operation of the maxim Verba fortius. General expressions are uncertain expressions. Jurisdictional facts should be cer- tain, direct, positive, and so stated as to exclude the operation of Verba fortius; but more general expressions may be employed in alleging collateral and res gestce matters. Concordare leges legibus est optimus interpretandi modus. § 188. Contracts Are Construed by Verba Fortius.— Deeds and simple contracts are subject to the application of Verba fortius. Sometimes the maxim is applied under varying expres- sions, as is next illustrated : Qucelibet concessio fortissima contra donatorem interpre- tanda est: Every grant is to be taken most strongly against the grantor. See Ut res magis valeat quam pereat and its cognate maxims and illustrative cases.®^ In stipulationibus cum quceritur quid actum sit verba contra stipulator em inter pretanda sunt: In contracts, when the ques- tion is what was agreed upon, the contract is to be interpreted against the party offering it.®* In contrahenda venditione, ambiguum pactum contra vendi- tor em interpretandum est: In negotiating a sale, an ambiguous agreement is to be interpreted against the seller.®* 01— L.C. 21, 3 Gr. & Piifl. 92 4 Gr. & Bud.; also Eoe v. Tranmarr, id.; also Ways of Necessity. 9.3— Dig. 41, 1, 38, 18. 94_Dig. 50, 17, 172; 18, 1, 21. 158 EQUITY IN PEOCEDURE Quando aliquis aliquid concedit, concedere videtur et id sine quo res uti non potest: When a person grants a thing, he is sup- posed to grant that also without which the thing cannot be used. The maxims and other expressions of the idea in Verba fortius are but parts of Expressio eorum quce tacite insunt nihil operatur (Things implied need not be mentioned) ; also of Ut res magis valeat quam per eat (It is better to conserve than to destroy). In relation to these maxims, in the second and fourth volume^. Grounds and Rudiments of Laiv, will be found many illustrations of the policy of upholding contracts. The undoing of contracts, or making them ineffectual, would be attended with grave consequences ; therefore the rule is Caveat emptor in the absence of fraud. Accordingly, the granting words of a deed override a reserva- tion or restriction as broad as the grant.^^ So it is that a repugnant clause is void, and the instrument operates in favor of the grantee ; the repugnant deed operates against the grantor, and the repugnant pleading operates against the pleader.^** In a deed a reservation as broad as the grant is surplusage.^'^ In commercial paper there are many illustrations of the operation of Verba fortius?^ The presumption is so strong that if possible the court will construe against an absurdity, or the writings and the acts of the parties would be vain and foolish. If a note reads thus : I promise to pay A ten dollars, this note will be construed by intendment to read, On demand I promise, etc. The omitted element of time will be imported by con- struction.^* This is agreeable to the rule. Quod pure debetur presenti die debetur: That which is due unconditionally is due now. Every presumption is against a carrier's ticket."" § 189. Concluding Observations of a Great Universal Rule. ' — Verba fortius accipiuntur contra proferentem: The words of 95— Carl Lee v. Ellsberry, 82 Ark. 209, 118 Am. St. 60, casea; Wilkina v. Nor- man, 139 N. C. 40, 111 Am. St. 767-777, ext. n.; Biddle, 26 Jto. 582 (deed). 96— Pain, L.C. 107, 3 Gr. & Eud. 97— See Barnard v. Cushing, L.C. 108, 3 Gr. & Eud. 98— Barnard, L.C. 108, 3 Gr. & Eud.; Sturdivant, L.C. 410, id.; Crooker v. Holmes, s«6 Sturdivant; Green County, Ky., 211 TJ. S. 87 (Municipal bonds). 99— Kelly, L.C. 304, 3 Gr. & Eud. o, \1"~]'?^ ^*- ^y-' ^^^ ^'"^- 153' 100 Am. St. 261-287; Cherry v. C. & A. B. B., i«\i o n^^\ \h ^- ^- (^- ^-^ ^^3-^08' ''•' 109 Am. St. 830, n., 102 Am. St. €8-71, 2 Gr. & Eud. VERBA FORTIUS 159 an instrument are to be taken most strongly against the com- poser; or, every presumption is against the pleader. This maxim, like a Gibraltar, holds mad storms at bay. The «loud may pass, but not this rock away. It is one of those maxims from which a constitutionalism can be evolved. These are: De non apparentibus, Frustra probatur, and Verba fortius. It is a maxim of necessity, of stability, and of protection. The importance of this maxim is indicated from the fact, that it is an inseparable companion of De non apparentibus, etc., and Frustra probatur quod probatum non relevat. We call these the trilogy of procedure and classify them among the immutable principles of procedure. Demosthenes well understood the protecting shield of Verba fortius accipiuntur contra proferentem, also of Expressio unius, also of the record, and of the stability of maxims of construction, as may be gathered from his Oration on the Crown in Ctesi- phon's trial. It seems well to make some general observations of the social and political conditions of the times that brought forth the greatest orator of all ages, also his greatest effort — ^'The Oration on the Crown." To mention that trial is to intro- duce causes that led to the downfall of a resplendent civilization. The time lies between Marathon, B. C. 492, and Arbela, B. C. 336, the period of the rise, the dawn, the glory, and the fall of Oreece, all within five generations. The ambitions of Philip of Macedon and Alexander the Great are in the perspective of that trial ; it shows they were politicians as well as warriors. They collected and directed the Macedonian party in Athens; this party had for its head ^Eschines, the second orator of Athens, who hated Demosthenes as Brutus iated Caesar, as Coke hated Bacon, as Burr hated Hamilton. History has high niches in its pantheon for the vanquished as for the victors. The trial of Ctesiphon was the last great effort of Demosthenes for a "lost cause." His own words in this last great effort should ever be his epitaph. Eeferring to Chaeronea, that unspeakable disaster to the Greeks, he sai-d: "I say that if the event harl been manifest to the whole world beforehand, not even then ought Athens to have forsaken this cause, if Athens had any regard for her glory, or for her. past, or for the ages to come." Soon thereafter' he was a fugitive, hounded and hated, with a price upon his head. 160 EQUITY IN PKOCEDUKB The defects and failure of Greek Jurisprudence greatly con-, tributed to the fall of Greece; and as jurisprudence failed in Greece, so it did in Eome. The historian has yet to record what has happened in America. All alike have had to await the inevitable. ' ' There is the moral of all human tales — 'Tis but the same rehearsal of the past ; First Freedom and then Glory— when that fails, Wealth, vice corruption — Barbarism at last. And history, with all her volumes vast, Hath but one page." Chaeronea folded and forever silenced the hopes of the Greeks^ It cast a heavy and a lasting gloom over Athens and its one great animating soul, who from the pall of a great dissolving empire spoke forth great principles like the Apostle Paul when his day had come. Demosthenes like a wounded lion at bay roared defiance at the invaders and at their satraps in Athens. He was entrusted with the means of rearing and keeping the fortifica- tions in repair. To these he gave his watchful care and tireless attention and all of his private fortune besides. Leonidas left an example and it was followed by both Soc- rates and Demosthenes. They well understood that basic rule — 8alus populi suprema lex. It is comprehended in the eloquent epitaph above referred to. Ctesiphon, in a transport of admira- tion for Demosthenes, proposed that the council proclaim him a golden crown in the theater for his devotion, his patriotism and sacrifice of all his estate. Now, a penal law forbade an edict founded on falsehood; also, that no magistrate could receive a crown of honor before he had fully accounted for all public funds coming into his hands ; also, that such an honor could not be proclaimed in the theater. However, to this an exception existed when all of the people were consulted. Upon the law referred to, JEschines became the prosecutor and presented Ctesiphon in a criminal information; really he was actuated by Wtred of Demos- thenes, but ostensibly he was calling Ctesiphon to account for attempting to get a public decree founded on false and sham allegations. (Ex dolo malo non oritur actio.) The defense counted on the stability of law and the limited and fixed words of the criminal allegations, and fully compre- hended how these would be construed. But they were fearful VERBA FORTIUS 161 •of the first charge only, for it involved a question of fact, which ■was whether or not the allegations that Demosthenes deserved the crown were true or false. This question had to be settled practically in the political arena. As to the second charge, an application of Verba fortius disposed of it, for when it appeared ihat Demosthenes had given all of his time and estate, these facts were grounds sufficient in themselves to justify the avowals of Ctesiphon. Viewing the facts as he did there was no crime intended. Actus non facit reum nisi mens sit rea. As to the third charge, the exception when brought forward would also vindicate the measure proposed by Ctesiphon. Thus the real issue was a political question vitally affecting Demosthenes. Therefore he was the real party in interest, it ■was thus his own case; but from necessity he must personally appear and defend it. There was no other who could. The second charge would have proven very serious but for the fact that under the general allegations in the information the facts of the case would permit the application of Verba fortius. Accordingly, every presumption was against jEschines, who had not taken into account the facts that the intrepid con- duct and rare munificence of Demosthenes of themselves would appear as ample cause for the honor, without regard to his possible squandering or wasting of the public funds entrusted "to him. In prcesentia majoris cessat potentia minoris. CHAPTEE VIII (§§ 190-205a) QUOD AB INITIO NON VALET INTRACTU TEMPOEIS NON CONVALESCIT: That which was void in the beginning cannot be validated by waiver, condonement or lapse of time. 8 Eul. Cas. 191; Suth. Stat. 484; Cool. Const. Lim. 449; Bro Max 178-184; Maxim No. 4, §§ 104-109, Hughes' Proc.; § 6686, Code N. Dak., 32 Cyc. 1400. "Deep the oak Must sink in stubborn earth its roots obscure That hopes to lift its branches to the sky." Cognate Maxims: Quce ab initio non valent ex post facto convalescere non possunt: Things invalid from the beginning cannot be made valid by a subsequent act. Quod nullum est, nullum producit effectum: That which is null produces no effect Hayes v. U. S., 170 U. S. 65:i. Quw ah initio inutilis fuit institutio, ex post facto convalescere non potest: An institution void in the beginning cannot acquire validity from after matter; Jurisdiction cannot be retrospectively organized. Quod initio vitiosum est non potest tractu temporis convalescere: Time cannot render valid an act void in its origin. Dig. 50, 17, 20. Behile fundamentum fallit opus: Where the foundation fails all falls to the ground. Windsor; Doddridge (Mo.); Davis, 126 JIo. 69, 78; Lilly, Id. 190, 211-213. De non apparentihus et non existentibus eadeni est ratio: What is not juridically presented cannot be judicially decided or considered. See Collateral Attack, 2 Gr. & Eud. Frustra probatur quod probatum non relevat : It is vain to prove what is not alleged. The evidence must correspond with the allegations and be confined to the point in issue; or, in other words, a court has no authority to admit incompetent, irrelevant, and immaterial evidence. A court is bound by its record; this record is the charter of the court 's authority, exactly as the power of attorney must exist to authorize the agent to make a deed. Indeed, the state, a third party, peremptorily requires that a record exist to authorize a court to proceed to do any lawful act. Without such authority the proceedings of a court are coram non judice, and therefore subject to collateral attack. Windsor, L.C. 1, 3 Gr. & Eud., et seq.; Crockett, 7 Wheat. 522, 526-527; Sawyer, Ex Parte, 124 V. S. 200. Illustrative Cases: Windsor v. McVeigh, 93 U. S. 274, L.C. 1, 3 Gr. & Bud., cases. (A record essential for the exercise of judicatory power; a court is bound by its record; a record restrains and limits the exercise of power or authority. Usurpation or abuse of power shown from the mandatory record divests a court of jurisdiction, with- out regard to consent or waiver, or objection or exception. A court will sua sponte take notice of such error shown by the mandatory record, wherever this 163 1G4 EQUITY IX PEOCEDUEE record is offered in evidence to prove title to property or estoppel of record. Davis, 126 Mo. 69, 78. A record made by abuse of power, or in fraud, or from crime, confers no rights upon one claiming under such a record. (See Mes Ad- judicaia, vols. 1 and 4, Gr. & Eud.) From Windsoj- may be deduced this defini- tion of pleadings: Pleadings are the juridical means of investing a court with jurisdiction of a subject-matter to adjudicate it. §§ 53, 169, 273, 1 Gr. & Eud. Jurisdiction depends on more elements than jurisdiction of the person (Pen- noyer, L.C. 58, 3 Gr. & Eud.) and of subject-matter {Campbell v. Porter, L.C. 2, 3 Gr. & End.). Sope v. Blair (Mo.); Charles v. White, 214 Mo. 187, 21 L. E. A. (N. S.) 481. A record evincing abuse of power can be given no respect by state power; from public policy — for the state — a court will denounce such a record and refuse it respect; it cannot be given any force or effect; it is coram non judice to the whole world and therefore to each party litigant. The court of a party litigant will not make such a record available for any purpose. Bes inter alios acta alteri nocere non debet (A transaction between two ought not to operate to the disadvantage of a third). The state, and therefore each party named upon the record, may ever object to that record upon the idea expressed in Non haic in fxdera veni (I did not come into this compact); also In pari delicto potior est conditio defendentis (In equal fuult the condition of the defendant is pre- ferred). Wherever the state or the amicus curiw can object, either party named upon the record can. Debile fundamentum fallit opus; Bro. Max. 180, 181, 602, 8th ed. De non apparentibus et non existentibus eadem est ratio (What is not juridically presented cannot be judicially decided; or, in other words, what is not juri- dically treated cannot be judicially respected) ; Crimen omnia ex se nata vitiat (Crime vitiates everj^thing that springs from it, or, no right is founded on a felony). 2 Gr. & Eud. Audi alteram partem is ably discussed in Windsor, also the necessity of the mandatory record to evince the facts of "due process of law." Campbell v. Porter, 162 TJ. S. 478, L.C. 2, 3 Gr. & Eud. (Jurisdictional defects cannot be waived; defects of substance may be raised for the first time in an appellate court, also upon collateral attack. Pleadings must exist and be sufficient to satisfy the peremptory mandates of the state.) Crockett, 7 Wheat. 522, 526-527. Allen V. Pullman Car Co., 139 TJ. S. 658. (Defects of substance a court will sua sponte notice without regard to the wishes, relations or conduct of the parties named on the record. S.P., Campbell v. Porter, supra.) Ex Parte, Sawyer, 124 U. S. 200. (Injunction void.) Slacum V. Pomery, 6 Cranch, 221, 4 Gr. & Eud. (Defects of substance cannot be waived; they may be raised by general demurrer, or may be first raised or renewed by motion in arrest of judgment; or they may be first raised or renewed by objections upon collateral attack. The test of a pleading is that it be sufficient to resist objections upon collateral attack. To resist these objeq- , tions is the ultimate and leading purpose of the mandatory record and all of its parts. If any of these is defective, Debile fundamentum fallit opus applies.) HasTcell, 31 Mo. 437; Smalley, 19 111. 207; Vallandinnham, 17 111. 25; Mallinc- Tcrodt, 169 Mo. 388, L.C. 12a, 3 Gr. & Eud. ; S. v. Muench, 217 Mo. 124, 129 Am. St. 536-547, n. v. S. V. CruilcshanTc, 93 IT. S. 274, L.C. 232, 3 Gr. & Eud. (Jurisdiction of one thing conferred by the pleadings is not jurisdiction of another thing.) Huntsman v. S. (Tex.), L.C. 231, 3 Gr. & Eud! S.P. as U. S. v. CruilcshanTc. Legislatures cannot change this rule. There are lirritations of legislative power to interfere with the means of the operation of judicial power. Taylor v. SprinJcle (Breese) , Chicago facts, not fiction. S. v. Baughman, L.C. 268; Weltmer u. Bishop, L.C. 268a, 3 Gr. & Eud.). Jurisdictio est potestas de publico introducta, cum necessitate juris dieendi: Juris- diction is a power introduced for the public good, on account of the necessity of dispensing justice. Quod nullum est, nullum producit efectum : From a null or void thing nothing can come. Hayes v. U. S., 170 XJ. S. 652. Illustrative Cases: 'Rushton V. Aspinall, L.C. 5, 3 Gr. & Eud. (Omission of a material allegation.) Jackson v. Pesked, 1 M. & S. 234, 85 Eng. Eeprint 248, stated Steph. PI. 150, S.P. as Mushton. J' Anson v. Stuart, L.C. 91, 3 Gr. & Eud. (Conclusions of law are not and cannot become of any legal significance whatever; they are without any weight or effect.) Mallinckrodt, L.C. 12a, 3 Gr. & Eud. Windsor v. McVeigh, 93 U. S. 274, L.C. 1, 3 Gr. & Eud. (Any fact apparent from the mandatory record, showing that fundamental law was disregarded in the establishment of the judgment, will render it null and Toid for all purposes; and, too, without any regard whatever to the making of objections or the taking of exceptions. Such error saves itself; "it will keep"; it is the func- tion of the mandatory record to show such error for the well-being of the 179 180 EQUITY IN PEOCEDUEE j:;r)vernment, which need not make objections nor take exceptions nor make nor file a bill of exceptions. Courts will sua sponte notice such error, and will act upon it without regard to the wishes or the relations of the parties named upon the record. The government is a third though a silent party, and its equities must be safeguarded without regard to condonement or waiver by the parties named upon the record. The state's rights cannot be waived nor contracted ^way by the parties named upon the record. To claims of waiver against the state, it replies. Quod ah initio non valet intractu temporis non eonvalescit •(What was void in the beginning cannot become valid by lapse of time). In iJ^'tndsor a defendant appeared and filed an answer, and the court struck this :answer from the files without giving an opportunity for an application to 3imend. This conduct of the court rendered its decretal orders null and void -and subject to collateral attack, the operation of which is indicated by Deiile ,fundameiitum, etc. The marshal's deed in this case fell with the judgment. Purchasers at judicial and execution sales buy Caveat emptor. If no cause of action is stated, the proceedings are coram non judice and are subject to collateral attack. Davis, 126 Mo. 69, § 458 infra. The liberal provisions of the code do not affect the results of the coram non judice proceeding, which cannot be waived. Courts will sua sponte take notice of it, and will set it aside without regard to the wishes of the parties to the record. Hannibal E. R., 42 Mo. 467, 470; Davis, 126 Mo. 69, 78; Lilly, id. 190, 211-213. Doddridge v. Faterson (1909), 222 JIo. 146. (Inferior and statutory tribunals must gather and state jurisdictional facts. Omitted jurisdictional facts not supplied by presumptions; they must affirmatively appear in the right record.) De non, also Ferha fortius illustrated. This case is a cognate of Bloom v. Bur- dick, L.C. 266, 3 Gr. & Eud.; Crepps v. Burden, L.C. 113, id.; Walker v. Turner, L.C: 118, id.; it cites and follows S. v. Metzger, 26 Mo. 66, which quoted and followed Walker v. Turner. These cases place limitations upon the operation of Omnia prcEsumuntur rite et solemniter esse acta. A petition if defective in substance will not support an order of court, and if this fails, a sheriff's deed thereon fails, although the grantee in such deed paid a valuable consideration and supposed he got title. Caveat emptor applies to purchases at judicial and execution sales. Deiile fundamentum fallit opus. § 207. The Principal Maxim Is From the Prescriptive Con- sTiTUTioN. — It expresses the idea that attends discussions of the general demurrer, the motion in arrest, and objections upon collateral attack. The operation of all these is to give oppor- tunity to test the requirements of the state as to the sufficiency of the record which the state peremptorily requires in its scheme of protection. Thus it is seen that the study of procedure is the study of government. A judgment being a contract, and the state being a party to this contract, the state commands a procedure and consequent proceedings that will not injure the state. The government is guardful of its interests, and these its agencies jealously con- serve. If public policy— the welfare of the state— is disregarded, then to the unlawful contract the state answers, this contract is In pari delicto; Ex turpi causa non oritur actio. ^'' And, anal- ogously, if an official act or proceeding has been established in 37— Holman v. Johnson, L.C. 363, 3 Gr. & Eud. ; Salus popuU suprema lex. DEBILE FUNDAMENTUM 181 disregard of public policy, the government appears and in effect says, Altenim non Icedere (We should injure no one. This is a part of Juris pnecepta) ; or, in other words, Non hcec in feeder a reui (I did not come into this compact). Herefrom will appear fundamental principles of equity and of contract, and these are associated with the original compacts of society, chief among which is the principle, Audi alteram partem. Consequently appears the reason why the coram non judice proceeding is dis- regarded by the government for reasons of public policy; this proceeding is always vulnerable to objections upon collateral attack. Quod ab initio non valet intractu temporis non con- valescit. § 208. The Substantive Rights of the State Are Peremptory. — The state prescribes that certain contracts shall be in writing ; this prescription is called the statute of frauds and perjuries. Wain V. Warlters, L.C. 335, 3 Gr. & Rud., well illustrates the matter in hand. From time immemorial the contract of record — the judgment — has been required to be in writing. It stands to reason that if a writing is required, something must be expressed therein with certainty. The contract of record — the judgment — is the establishment of an obligation evinced by a record. What this record must evince to satisfy all requirements is a question of the general demurrer here, of the motion in arrest there, and of objections upon collateral attack still further on and forever. The written contract must satisfy the statute of frauds ; and analogously the judgment contract — record — ^must satisfy certain requirements for the ends and purposes of protection. The contract under the statute of frauds, if lacking or defective, may be voidable, and sometimes it is void; while the judgment contract, if lacking or defective, is tirst, last and all the time coram non judice. Being such, it is forever void; it is incur- able; it is always subject to objections upon collateral attack. At this juncture the significance of the trilogy of procedure appears, and especially the corollary therefrom, "What ought to be of record must be proved by record and by the right record." Defects or omissions apparent in the mandatory record leave the way open for the application of Debile funda- mentum fallit opus. 182 EQUITY m PEOCEDUEE § 209. The Principal Maxim of Constitutional Utility;— Its utility attends the operation of the jurisdictional probe by what- ever name it may be known — demurrer, motion in arrest, or collateral attack. The organization and authority of courts are always constitutional questions. From this viewpoint the dignity of the general demurrer and its rules appears. This probe and its allies call for a demonstration of the authority or jurisdiction of the court; thej also call for the right record, a sufficient record, agreeable to the corollaries of the trilogy of procedure, which are : 1. "What ought to be of record must be proved by record and by the right record."' 2. "Pleadings are the juridical means of investing a court with jurisdiction of a subject-matter to adjudicate it. ' ' § 210. Superior and Inferior Courts; Distinctions.— The rules last quoted apply to superior courts of general jurisdiction. The inferior court of limited or statutory jurisdiction must have a record, and further upon the record, upon the same page, between the same covers that the judgment is entered, there must also appear the jurisdictional facts authorizing the court to enter the judgment.^* But the judgment of the superior court rests, in addition to- recitals of the clerk's record, upon the pleadings and various other documents and records. For the superior court there is a somewhat more liberal rule of construction, but only to this extent, however: The authority for the entry of the judgment need not affirmatively appear upon the face of the judgment record, but may be found in the files. Still, this authority must exist and remain of record, and contain every essential fact necessary to sustain the judgment- — as a species of contract, a contract of record. And the writings constituting these judg- ments, whether of Superior or Inferior courts, must satisfy the requirements of the trilogy of procedure, otherwise they will fail under the tests of the jurisdictional probes, the demur- rer, motion in arrest, or collateral attack. If their authority does not affirmatively appear in the right record, then they are coram non judice, and to this there is ever applied Debile funda- mentum fallif opus?^ 38— Crepps v. Burden, L.C. 113, 3 Gr. & Eud., et sea. 39— Story's Eq. PI., §§10, 28; II. S. v. Cruitshank, L.C. 2.^", 3 Gr. & Rud.- Porter v. Campbell, L.C. 2 id.; Eushton v. Aspinall, L.C. .5 id.; Slacum v. Pomery',, DEBILE FUNDAMENTUM 183 §211. Jurisdictional Elements Must Afiirmatively Appear Upon the Eight Kecokd.— In a state where jurisdiction depends on only two elements— first, jurisdiction of the person; and sec- ond, of the subject-matter,*" there the principal maxim has the least operation ; and there yfraiver— Consensus tollit errorem— has the largest operation. In a state where pleadings are uniformly required to invest the court with jurisdiction, the principal maxim has a larger operation, and waiver — Consensus tollit errorem — is more re- stricted. At a forum where other and further elements of juris- diction are required and noticed, as in Windsor v. McVeigh, the principal maxim has a still larger operation, and waiver — Consensus tollit errorem — is still more restricted. Accordingly, the principal maxim and its cognates appear as reciprocals with Consensus tollit errorem and its cognates. Here it seems well to observe that the trilogy of procedure or of strict con- struction appears as a reciprocal of the trilogy of liberal con- struction, which is Consensus and its cognates. § 212. The Principal Maxim Is a Fundamental Principle in a GovEENMENT OF Peotection. — It applies equally to all systems of procedure — the equity, the common law civil cases, also its criminal case, the federal and the code, also the Superior Court and the inferior tribunal. In this maxim is presented an immutable element of jurisprudence. This fact is perceivable from the presentation of the trilogy of procedure. § 213. The Mandatory Record Arises From the Prescriptive Constitution. — It is the government's, the state's, the public policy record which must exist and evince necessary facts to constitute the coram judice proceeding. It is of the state, by the state and for the state. From first to last, the government opens and reads and construes for itself, without regard to the conduct, relation or compacts of the parties named on the record. The wishes or personal interests of these parties do not affect the construction of this record. The construction of this record 6 Cranch, 221, 4 Gr. & Eud.; Crockett v. Lee, 7 Wheat. 522; Eose v. Himely, 4 Craneh, 269; quoted, approved and followed, Thomas v. P., 107 111. 517, 47 Am. Eep. 458; Mallinckrodt, L.C. 12a, 3 Gr. & Eud.; Sawyer, in re, 124 U. S. 200 (In- junction without authority void db initio); Doddridge (Mo.) supra; % 119, ante. 40 — See Illinois, 2 Gr. & Eud.; Theory of the Case, 4 id. 184 EQUITY IN PEOCEDUEE as to substance is not fluctuating, as some decisions hold, "before trial," "at the trial" and "after the trial." § 214. Certainty As to the Essentials Is Required, and This Is Measured and Tested by a Fixed Gauge; and this gauge is the trilogy of procedure, or the rules of strict construction. These are the state's— the third party's— rules, and they cannot be consented away nor waived. Res inter alios acta. The state— the third party — says, Non hcec in foedera veni, or Al- terum non Icedere. The equity of the third party cannot be waived by the tivo. The tests of the state's interests are from this trilogy; the state's interests are measured from the con- serving principles of procedure.* ^ Certainty is measured from orient peaks of the law, and not from arbitrary and fluctuating estimates. Coke's three degrees of certainty are a bewildering jargon. They are not practical and they are not capable of general comprehension.*^ Too much respect is still paid the stumbling-blocks that the feudal authors have placed in the way of the restoration of the civil law of Eome.*^ It seems well to repeat an important view, that the state con- strues a record and therefrom establishes the jurisdictional data according to fixed and invariable rules ; that if by these rules the record is defective in substance, then there applies at all times and at all stages Debile fundamentum fallit opus. § 215. A Judgment Depends Upon a Wrong Stated in the Eight Eecord. — Therefore the rule is that the statement must contain the facts constituting a "cause of action." A pleading that does not set forth the facts constituting a cause of action or the grounds of a defence is subject to objections upon col- lateral attack, and of course to a general demurrer, also a motion in arrest. To illustrate : If the statement is of a simple contract (other than commercial paper), then the assent and the consideration must be alleged.** A pleading omitting these matters of sub- stance is insufficient to sustain a judgment, or, in other words, to resist objections upon collateral attack. Jurisdictional facts 41—55 83-123. 1 Gr. & Bud. 42— Windsor. L.C. 1, 3 Gr. & Burl.: see Certaintv, 2 id 43_See Will 's Gould 's PI. 234-239; also Chap. I, 1 Gr. He Bud LC 3^2^^ ^^"P'^'g'^ "■ Brathwait, L. C. 301, 3 Gr. & End.; Eann v. Hughes, DEBILE FtND AMENTUM 185 are not supplied by intendment. Verba fortius accipiuntur con- tra proferentem.'^'^ Therefore the statement must describe the wrong done, also the wronged person, also the wrongdoer. These facts are necessary to give the court jurisdiction of a particu- lar subject matter. The pleading that fails in this confers no jurisdiction upon the court. The question of a real, existing, legal and bona fide "cause of action" is never a question that is foreclosed to the state.^** This requirement of a "cause of action" has a profound significance. A judgment founded upon a statement defective in substance may be likened to the house "founded upon the sands, when the rains descended and th& floods came and the winds blew." Such a judgment is subject to collateral attack and the operation of Debile fundamentmn- fallit opus. § 216. The Principal Maxim Is Applied in Taxation.— Taxa- tion depends on an assessment roll whereon appear the name of the taxpayer, a description of his property and its valuation. This document is the foundation of a tax, and its constitution must be by the right officials; the division of state power is involved. The assessor only can assess.*^ If this document is lacking in matters of substance, it will not support a tax. De- hile fundamentum.^^ Defects of substance in assessment rolls cannot be aided by- curative statutes. Quod ab initio non valet intractu temporis non convalescit. § 217. The Principal Maxim Applies to Contracts.— Alreadjr we have mentioned the judgment — the contract of record. Next comes the deed, or formal contract. If its sealing or other fea- tures of certainty and conclusiveness are absent, there applies to the deed Debile fundamentum. And the simple contract is governed by the same principle. The negotiable instrument must have certainty of time, of amount, payer and payee.*" And other simple contracts must be certain, else they fail.^" 45-U. S. V. Cruikshank, L.C. 232, 3 Gr. & Eud.; Stephen y. Beall, 22 Wall 329 339 • 190 TJ. S. 540, 546 ; Quod lex non vetat perrmttit (What the law does not forbid it' permits) ; § 163, 1 Gr. & Bud. 46— S V. Baughman, L.C. 268, 3 Gr. & Bud., et seq. 47— P. ,-. Hastir e. , ^^'''%Lntf^,erV;if!f°^- ^ ^\ ^^^' h^- ^^' '^ «'• ^ «"d- «* *«3- The motion nor. obstante veredicto is a staee where a nlnintiw »;n,o^ ,„„„„„ „- fi-„4. .„:„„= CONSENSUS TOLLIT EREOEEM 209' grounds of the general demurrer to the defendant's pleadings. This motion is the same as the motion in arrest except that the latter is made by the defendant while the former is made by the plaintife. Hereat the rule of construction is the same as on general demurrer. Stephen's PI. 148, 149 (Aider by pleading over). Carland v. Davis, 4 How. 131, L.C. 60, 3 Gr. & Bud. Bepleader; when a court will s-ua sponte take notice of departures and immaterial issues and order a repleader, that the cause may be disposed of upon the merits. Interest reipublicw. Noble V. K. C, 222 Mo. 121 ; see Theory of the Case, also Variance, 4 Gr. & Kud. § 246. Consensus Tollit Errorem a Fundamental Principle of Okganic' Law. — So it will appear when considered in connection -with the trilogy of procedure (which is, De non apparentibus et 'non exist entibus eadem est ratio, Frustra probatur quod proba- ium non relevat, and Verba fortius accipiuntur contra proferen- tem). To illustrate: If a constitution or a statute provided that a summons must issue, must be served and returned, never- theless if a party personally appeared and waived the issuance and service of summons, and pleaded to the merits of the case, or otherwise appeared generally, then the requirements of such constitution or statute would be waived."*^ Adjective law can be waived, but substance cannot be waived. The general demurrer, at all its stages and by whatever name called, whether motion, demurrer, motion in arrest of judgment, or non obstante veredicto, order of repleader, review in appellate procedure, or requirements to resist objections on collateral attack, or requirements for res adjudicata, attaches to substance or the state's substantive law, which cannot be waived. 70 Cent. L. J. 455-460 (reviewing Chitty, Stephen and Gould). Codes provide that filing an answer will waive formal or adjective law, but not substance. "The necessary operation and therefore the function of law thus defined we found to be the marking out of the largest area within which each individual could freely move and act without invading the like freedom of every other — that is, to secure the largest possible liberty." — Carter, Origin of Law, 173. The state enters into and takes a place in all the relations of its citizens. These are given all possible freedom consistently with the welfare of the state ; but they cannot waive or contract away what concerns the state. The substantive rights of the' state are never foreclosed by the compacts or the conduct of the parties named on the record. 96a— Ingersoll v. Coram, 211 U. S. 335; § 53, 1 Gr. & Eud.; Quinn v. P., 4 Gr. & Eud..; Indianapolis B. E. v. Horst, L.C. 223, 3 Gr. & Bud.; Thomas v. B. E., 4 Gr. & Bud. 210 EQUITY IN PEOGEDUEE § 247. Reason Is the Soul of the Law, and When the Reason FOR A EuLE Ceases, So Does the Law Itself. — {Cessante ratione legis.) That one shall have an opportunity to be heard is a matter of public policy.®^ If this opportunity has been afforded, then the spirit of the law is satisfied. Jurisdiction of the person is an essential element of a coram judice proceeding, but the means of acquiring jurisdiction are not confined to the .ceremo- nies of process, unless the defendant is an infant or an insane person, in which cases process must be actually served, and the record must show it. But as to all other persons, the law looks at substance, not form, and ceremonial forms prescribed by written laws will give way to the law of convenience, necessity, reason, and the public welfare. Interest reipublicce ut sit finis litium.^^ § 248. The Question What Can and What Caamot Be Waived Involves the Conserving Principles of Procedure.®^ — These principles implicate the unwritten constitution and the manda- tory requirements of a constitutionalism, which is enumerated as the ninth ground and rudiment of law.^ The discussion of what is harmless and what is prejudicial error would fill volumes in the books of each generation for centuries. All claims that it is new or modern law are mis- leading.* The following is a popular statement of a rule which does not involve error appearing upon the mandatory record; this rule is repeated again and again by the courts. These repetitions are matter for the latest and unending rows of books. From these we quote : "The general doctrine. Generally speaking, a judgment -will not be reversed or st verdict be set aside, or other proceeding be overthrown because of error of which it can be said that no harm resulted to the complaining party even though he has properly saved his objection and excepted to the ruling and has regularly paved it in the record." 8 Current Law, pp. 1-35, §§ 1-3. The principle— the philosophy— of this rule should be well comprehended.^ The above rule may be stated thus : No error assigned will be a ground of reversal unless it has prejudiced the appellant. 97— Audi alteram partem; Windsor v. McVeigh, L.C. 1, 3 Gr. & Eud. 98— §§ 53, 103, 1 Gr. & Eud. 99— §§ 83-124, 1 Gr. & Eud. 1— § 56, id. 2 — See 8 Current Law, 1-35. 3— See Abatement, Assignment of Error, Appellate Procedure, 2 Gr. & Eud, CONSENSUS TOLLIT EEEOEEM 211 It seems well to add that this rule applies only to error shown in the statutory record.* Whatever relates to the mandatory record and the conserving principles of procedure is generally unaffected by waiver and the operation of Consensus? When its philosophy is lost the law is lost. This is well illus- trated in discussions of Consensus. To illustrate: There is one class of lawyers and authors that takes the view of pleading and of the mandatory record indicated in Story's Equity Plead- ings, § 10.^ This school may be cited to sustain this proposition^ that the mandatory requirements of a constitutionalism cannot be waived.'' With this school technicalities are the safeguards of the law, and are indispensable in the establishment and vindication of the first great principle in a government of limited and defined powers, namely, the division of state power, also of the mandatory record. There is another school which overlooks the requirements of a protecting government in a judicial procedure, and for that purpose the uses and functions of the mandatory record. This school looks and construes wholly from the standpoint of the parties named upon the record.* The contentions of these two schools will illustrate that the study of procedure is a study of government, also that when its philosophy is lost the law is lost. The Supreme Court of the United States has fluctuating views of the foregoing theories. All of its decisions are not as clear and forceful as TJ. S. v. Cruikshank.^ Many of its decisions are loose, equivocal and susceptible of almost any construction. All are not as authentic as the ones we shall next cite. § 249. Limits of Waiver.— Amendment of a bill without leave after the cause is at issue .is a nullity which is not waived by receiving evidence thereunder. Frustra probatur quod prohaturn nan relevat. 4— Windsor, L.C. 1, 3 Gr. & Bud.; Camptell, L.C. 2 id. 5— Shutte, L.C. 291, 3 Gr. & Eud. 6 XS S V Cniikshank, L.C. 232, 3 Gr. & Eud.; Eushton, L.C. 5, id.; Washington B. B. V. Bradle'ys (1869), 10 Wall. 209, 303. 7_§§ 56-60, 1 Gr. & Bud. 8 2 Thomp. Trials, §§ 2310, 2311 (pleadings can be waived) ; 70 Cent. Law Jonr., 311-314, 455-460. 9— L.C. 232, 3 Gr. & End. ^12 EQUITY IN PEOCEDUKE "It is hardly necessary to repeat the axioms in equity law of procedure, that the allegations and the proofs must agree; that the court can consider only what is put in issue by the pleadings, that averments without proofs, and proofs without averments, are alike unavailing, and that the decree must conform to the scope and object of the prayer and cannot go beyond them. Certainly with- out the aid of a cross bill the court was not authorized to decree against the com- plainants Ihe opposite of the relief which they sought by their bills. That is what was done by the decree under consideration." Washington B. B. v. Brad- leys (1869), 10 Wall. 299, 303. See Story, Eq. PI., § 10; De non apparenUbus; Croclcett v. Lee, 7 Wheat. 525. 526, 527. "There is a large class of cases in which it has been held that objections not taken in the court below will not be allowed to be taken in this court. We do not intend to impugn this doctrine or to narrow the limits of its just operation. But when there is such a combination of errors, and errors of so grave a char- acter as those which mark the record in the case before us, this principle can have no application." 10 Wall. 303. Stripped of equivocal verbiage, the court held that a matter not juridically presented could not be judicially considered;^" that pleadings are the juridical means of investing a court with jurisdiction of a matter to adjudicate it." A reply is essential; where there is no issue there can be no trial. '^ An adjudication cannot go beyond the pleadings, the state- ment oi the case. (Aprayer may be waived.) A decree without a proper foundation must fall. Debile fundamentum fallit opus. The practice of the court is the law of the court. There are limitations of Consensus tollit errorem.^^ A reply may be waived.^* § 250. Federal Cases; Further Illustrations,— The federal Supreme Court has decided that the ground of the general demurrer can be waived. It has also decided that waivable matter if reserved by exception may be assigned for error after general appearance and a trial on the merits.'^ If one is sued in a wrong district this may be reserved by exception, and after trial on the merits, such exception may be assigned for error; it is not waived.^® These decisions oppose the general rule and the policy dictated by Interest reipublica:. The general rule is 10 — De non apparentibns. 11— tJ. S. V. Cruikshank, L.C. 232, 3 Gr. & End.; Campbell, L.C. 2, id.; Story, Eq. PI., §10; Allen v. Pullman Car Co., 139 U. S. 558; Hope, 105 Mo. 85, 93, 24 Am. St. 366 (able statement of rule). Frustra prohatur quod proiatum non relevat. Charles v. White, 214 Mo. 187, 21 L. E. A. (N. S.) 481; §§ 47, 68, 119, ante. 12— Crain v. U. S., 2 ,Gr. & Eud.; Borkenhagen, !,.<:. 81, 3 M. 13 — See Story; De non; Debile. 14— Labor v. Cooper (1868), 7 Wall. 565 (Swayne, J.), cases. See 10 WaU. 303 (Reply cannot be waived). 15— Harkuess v. Hyde, L.C. 152, 3 Gr. & End.; Mechanics' Appliance Co., 215 U. S. 437. ^^ 16— Harkness v. Hyde; Ingersoll v. Coram, 211 U. S. 335. CONSENSUS TOLLIT ERROKEM 213 that "whatever relates to process and its service is waived after general appearance.^^ , The cases show that the practice relating to cases from the highest court of a state are a class unto themselves; these are often barred by a strict technical practice to which it seems well to refer. These are judged by rules at variance with general principles. In many cases the appeal fails for reasons which the appellant could not have anticipated. In some cases it seems necessary to recite the fact that guarantees of organic law are relied upon ; that a statement of this is not timely after the state court has astonishingly denied such rights. Indeed, it seems that the pleader must anticipate any and all proceedings of the state court ; otherwise he waives his rights under organic law. Therefore one must at the beginning recite this law in his pleadings and thereby give notice that he will seek a review if fundamental right is denied by the state court. But in other cases the court is not overtechnical in with- drawing cases from scrutiny, for it treats the substance of the allegations as determining the character of the case. If the state court has passed upon the substance of a federal right, though not in express terms, the court will look at substance and not form.^* § 251. Feature of Federal Practice.— So it results that mat- ters of substance are waivable, and matters of form are not waivable under the condition above stated. The result is that the philosophy of the law is no safe guide. And thus it is that in federal practice it is the letter of the constitution, the word oi the statute and the latest decision thereon which are the flickering torches of the federal practitioner. To him the law is a wilderness of conflicting cases and long rows of opposing statutes. In cases removed from the highest court of a state into the federal supreme court, the principle in Consensus is given an all-pervading operation. It overrides the trilogy of procedure and its cognates, the general demurrer and its allies already mentioned. In this class of cases the state's interests are disregarded; the cases support the statement that every- thing is waivable; the review of these cases is a question of l7_Urewcomb, 182 Mo. 707; see Abatement, 2 Gr. & Bud. 18— Grand Eapids E. E., 193 U. S. 27-28; Kaukauna Co., 142 U. S. 269. See Xeigh V. Green, 193 U. S. 85; Diseonto, 208 V. S. 750. 214 EQUITY IN PROCEDUEE matter shown from the statutory record. The functions of this record are enlarged at the expense of the safeguards of pro- tection. Consent will establish almost all abuses as ' ' due process of law." § 252. In Some Cases the Assignment of Errors Is Jurisdic- TiONAL,;^^ elsewhere it is not in the criminal case; and in the latest case it is said that the assignment of errors is not juris- dictional, that the court may sua sponte notice error.^" In the high tide or in the low tide of such fluctuation every case is a law unto itself. And in any event the philosophy of the statu- tory record matter is jumbled ; where this is applied on the onfr hand and denied on the other, there the practice is a hard and wasting struggle over long gatherings of cases, which are no better guides than so many session acts. Any disturbance of the philosophies of the mandatory and the statutory records- destroys the continuity of reason, removes practice from the realm of the perfection of reason, and plunges it into an abra- cadabra of conflicting statutes and decisions, an anxious look for the "latest case," and a fevered fear that some new and unexpected turn will be taken, or some astonishing word spoken. In American courts stability and dependability are not required.. § 253. Cooper v. Reynolds Conflicts With Windsor v. Mo- Veigh. — Of the former observe that, in 1863, Knoxville and sur- rounding region was the theatre of stirring military activities, of battles and of sieges by large opposing armies. The battle of Chickamauga was fought on the 19th and 20th of September, and immediately afterward Longstreet with a powerful corps invested Knoxville. This was a part of gigantic warfare con- ducted around Chattanooga. These facts are general history, of which all may take notice.^i On September 26th, about the day that Longstreet invested Knoxville, Parson Brownlow, a noted Unionist, instituted an attachment suit against one Eey- nolds for assault and battery and false imprisonment, and attached his farm near Knoxville. Service of process was made by publication in the Knoxville "Whig" immediately after the commencement of the suit, and, of course, during the siege, which was not raised until December 5th, after the battles of" 19— Waters Pierce Oil Co., 212 XJ. S. 159, 182. 20— Old Nick WilHams Co., 215 XJ. S. 541, 545. 21— See Judicial Notice, 2 Gr. & Eud.; Lanfear v. Mestier, L.C. 181, 3 id. CONSENSUS TOLLIT EEEOEEM 215 Missionary Eidge and Chattanooga, November 23-25. Thus we gather the facts that a plaintiff was busy within a besieged city making service of process by publication, and Reynolds was assumed to be without and possibly aiding Longstreet's artillery to open a way into the city. On this state of facts the judgment might well have been: The service of process in this case will not answer the requirements of ' ' due process of law ' ' ; therefore the record is coram non judice. Inter arma leges silent: In the midst of arms the law is silent. § 254. Cooper v. Reynolds; Observations Upon.— The statute — Code of Tennessee — specifically enumerated the steps for service by publication, and, as is usual, provided for an affidavit, an order founded on that affidavit,- and the affidavit of the pub- lisher of the paper in which the notice was published — all of these to be made of record.^^ Of course, this became a statu- tory addition to the mandatory record, and all of this was to be done and made manifest by the clerk, a ministerial officer. Herefrom we may proceed upon the rationale of the mandatory record; and let us note that the clerk had failed to perfect this record, as provided by the Tennessee statute, for he had failed to make the required record memorial. He omitted a copy of the published notice. This was admitted to be essential. This state of fact called for an application of the first rule of evidence, namely, ''What ought to be of record must be proved by record and by the right record." But this rule was rejected; and not- withstanding the manifest irregularity, regularity was pre- sumed, and the omission was supplied from judicial recitals made by the judge in his decree. After the war Reynolds brought suit to recover his farm, and the judgment and record of the proceedings in the Brownlow Case were admitted in evidence, with all of the omissions. Un- questionably, upon principle, he had a right to proceed upon the theory of constructive notice in any jurisdiction having a definite theory and firmly upholding the essentials of collateral attack. Quod ah initio non valet intractu temporis non convalescit. 22— Bicketson v. Eiehardson, L.C. 59, 3 Gr. & Eud.; Galpin v. Page, 3 Sawyer, 93, L.C. 63, 3 Gr. & Eud. 216 EQUITY IK PEOCEDUEE In the judgment it was recited that, service by publication having been had, the court proceeded, etc.^^ This recital was made by a judicial officer in his judgment, which would have been just as good without this superfluity, and that, too, of a matter that should have been evinced by the ministerial officer.^* This the statute required. Such statutes are strictly construed.^^ At most the recital was a conclusion of law, which is always a nullity, at least where an enumeration of facts can and ought to be made.-** From the recitals found in the judgments, the court construed the requisite matter that should have been made to appear of record at the beginning to authorize the proceed- ings,^^ which should have been made, by the clerk. So it is apparent there was not only a bad beginning for a foundation, but it did not come from the right source — it did not have the right origin. Quod nullum est, nullum producit effectum. It involved the division of state power.^^ There are limits of liberal construction, and these are perceivable from the trilogy of procedure. § 255. Cooper v. Reynolds (continued) : Nor Did the Juris- DiCTioNAL Fact Appear in the Right Place. — Interested parties should not be required to look in strange and unusual places for what the law declares shall be made at the commencement by the clerk and not at the conclusion by the judge. What relates to a strict statutory power contrary to the course of the common law is strictly construed.^* Judges take judicial notice of their records, and give judgment upon the whole record.^" And this is presumed in this case; therefore it seems fair to say that the judge knew of the essential record omission when he recited in his judgment the effective and much respected conclusion of law in this case. Justice Miller spoke for the majority of the court and sustained the Brownlow judgment; 23— Ferguson v. Crawford, L.C. 264, 3 Gr. & Bud.; Becklenbere, 232 111. 120; Cloud, 86 Mo. 366-368. 24 — See Division of State Power, 2 Gr. & Eud.; Ilournoy v. Jeffersonville, L.C. 146, 3 id., cases. 25— Galpin v. Page, 18 Wall., also 3 Sawyer, 93 ; Eicketson v. Eichardson, L.C. 59, 3 Gr. & Eud. ; Bloom v. Burdick, L.C. 266, id. 26— Howard v. S., L.C. 166, 3 Gr. & Eud. 27— McArthur v. Howett, L.C. 99, 3 Gr. & Eud. ; Bro. Max. 946, 8th ed. ; WiU- iams V. Peyton, L.C. 116, 3 Gr. & Eud.; Constructive Notice; Quod ab initio, ete. 28 — Plournoy v. Jeffersonville, supra. 29— Crepps v. Durden, L.C. 113, 3 Gr. & Eud. 30— Steph. PI. 144, 9tli Am. Ed., § 116, ante. CONSENSUS TOLLIT EEEOREM 217 Justice Field dissented, for the reason that the state court did not acquire jurisdiction by the publication proceedings. It should be observed that Cooper v. Reynolds is a most important case and deserves careful attention. It is widely cited in works on -procedure, attachment, replevin and juris- diction, but without the discrimination that it deserves; for it is not pointed out in these works that it is in conflict with Galpin v. Page^'^'' and all the decisions which hold that a statu- tory power contrary to the course of the common law should be strictly construed. Against this rule, inter alia, Cooper v. Reynolds can be cited. It is an extreme case for liberal con- struction, and inconsistent with the view that a statutory record is strictly construed. Ad ea quae frequentius, etc. It is opposed to that certainty indispensable for a definite theory, and for certainty and stability of titles and collateral attack. The rationale of all these subjects must find support from opposite cases. §256. Windsor v. McVeigh; Cooper v. Reynolds.— Justice Field, in all of his decisions, had a clear, congruous and well- conceived opinion of the mandatory record and^its.functions,.^ and nowhere did he more ably disclose this knowledge than in Windsor v. McVeigh, in which case Justice Miller dissented. These judges throughout their service had widely variant opinions of the uses of that record, as a close investigation of the above cases will show. The Supreme Court of the United States affords many illustrations of rapidly changing views of fundamental rules relating to the notice imparted by a record, one of the most important elements of "due process of law" which has long awaited a definition from that court. A strict but defensible rule was applied in Ransom v. Williams (1864), 2 Wall. (U. S.) 313, and a very liberal but dangerously variant rule was applied in Harvey v. Tyler, Id. 328. In one case De non apparentibus et non existentihus eadem est ratio is strictly applied, while in the next Omnia prcesumuntur rite et solemniter esse acta is applied for the establishment of jurisdictional facts. Here are contradictions in the same book and at the same term,, and in almost succeeding cases. 30a— 18 Wall. (U. S.) 350, L.C. 64, 3 Gr. & Bud. 318 EQUITY IN PEOCEDUKE Lex est misera ubi jus vagum aut incertum est. VM jus incertum, ibi jus nullum. The above eases well illustrate the necessity of a right under- standing of the prescriptive constitution and of its parts else- where discussed as the trilogy of strict construction and the trilogy of liberal construction. The leading canon of the latter is Consensus tollit errorem. It will be instructive to note that the construction of statutes in Cooper is not supported by reason ; for when it was so obvious that the publication of notice in an invested city was vain and fruitless, it should have been disregarded. Verba intentione debent inservire; Cessante ratione legis, cessat ipsa lex. § 257. Abatement, Dilatory, Formal Matter Is Waivable; and it is the policy of the law to waive it. This policy has been enumerated and defined as the thirteenth conserving principle of procedure.*^ It is the policy of the law to speed causes to a final determination upon their merits, and not to delay this determination by technical matters not relating to nor affecting the merits. Interest reipublicce ut sit finis litium. However, the forms of the law are a part of the law, and these forms will be enforced upon apt and precise objection and exception, when they are properly evinced by the right record (the statutory record) in accordance with the rules of appellate procedure.^^ § 258. Distinctions Between Matter of Substance and Formal Mattek. — A comprehension of these distinctions involves accu- rate and technical knowledge of the mandatory and the statu- tory records. The former may be called the government's record, existing for protection, and tested by the state's trilogy of construction, also by the requirements of the coram judice proceeding, when viewed from the general demurrer, motion in arrest, non obstante veredicto, repleader, objections upon col- lateral attack, and the essentials of res ad judicata, or "due process of law." Essentials of these matters are matters of substance. Formal matters are those concerns in which the government or state has or takes no interest. Formal matters concern two parties only, while matters of substance concern the state as a silent third party, whose interests are vindicated iy the operation of the general demurrer. 31— §S 53-103, 238, 1 Gr. & Eud. 32— § 53, 1 Gr. & Kud.; L.C. 290a-299, 3 id. CONSENSUS TOLLIT EEEOREM 219 § 259. Aider by Pleading Over, by the Statute of Jeofails AND BY Vebdict Is A Branch OF " CONSENSUS. "—The discussioHs of aider by verdict involve considerations as to what is matter of substance and what is formal error. Rules relating to this are found in R. v. Goldsmith.^^ Chitty, Stephen and Gould did not cite nor explain Consensus.^* On principle, formal defects are waived the instant they are passed, and this waiver cannot be recalled nor restored without infraction of first principles.^' That at the stage of verdict there should be a waiver of matters already passed without apt objection, is imreasonable ; for what is waived is gone forever the moment it is waived. Interest reipuhlicce. And this waiver does not depend on the Statute of Amendments and Jeofails, as is stated in Stephens ' P^eaf^iw^,*" but it results from the appli- cation of Consensus tollit errorem. This maxim does not origi- nate from nor depend upon a statute, for it arises from the prescriptive constitution. Its operation is to advance the policy involved in Interest- reipublicce ut sit finis litium. The Statute of Amendments and Jeofails and code provisions may reaffirm it, but they cannot do more. Organic law can be broken, but it cannot be changed. Statutes have not and cannot change it. Chitty, Gould and Stephen are mistaken. 70 Cent. L. J. 455-460. § 260. Discussions Involving Matter of Substance and Formal Matter Aee a Jungle of Confusion. — The courts of many juris- dictions have no clear or settled views of these matters, nor of the origins, histories, ends and purposes of the two records, the mandatory and the statutory records, nor of the first great rule of evidence relating to these records, which rule is : "What ought to be of record must be proved by record and by the right record." Confused and warring courts have discussed these matters until their decisions are nothing less than "useless grists of profuse jargon"; and so it is with the institutional writers upon these matters. Courts have decided first one way and then another, as in Illinois and Missouri, and in courts of other states 33 — L.C. 20, Gr. & Eud.; Stephen's PI., pp. 148-150, citing Jacison v. Pesked; see also 1 Gr. Ev. 19; Bro. Max. 601, 602, 8th ed.; Dobson v. Campbell, L.C. 232a, 3 Gr. & Bud.. 34— See Chap. X, Chitty 's PI. 35— §§ 53, 103. 1 Gr. & End. 36— Pp. 149-150, aiHe, § 116. 220 EQUITY IN PEOCEDURE that have followed the decisions of New York, Illinois and Missouri. The condition in the federal courts is not hopeful,, but is threatening.*"* The courts to which we refer are not dependable as to the uses of the two records, and as to the philosophy of the trilogy of procedure. § 261. Federal Cases to BliistraAe.— Windsor v. McVeighP'- This was an ejectment suit, and plaintiff therein offered from the records of a federal circuit court a judgment, its record,, and a marshal's deed to support his claim. This record was regular and perfect throughout, from summons to the deed inclusive, to support the plaintiff's title, save and except one entry in the mandatory record, and this entry showed that the court a quo struck the defendant's answer from the files, without giving him the right to amend. This answer was responsive to the allegations, but it was wholly insufficient to constitute a defence, and for this reason the court peremptorily struck it from the files. To this action no objection was made, no excep- tion was taken, no statutory record was filed. When this record was introduced to suppQrt the grantee's title to the land, then and not before it was objected that the proceedings were coram non judice for the reason that the answer had been improperly stricken from the files. This objection was sustained, and as a result the grantee in the marshal's deed failed to show authority for the judgment and the deed thereon. Accordingly the deed was held void. This case is opposed to Cooper v. Reynolds. § 262. Erroneous and Conflicting Views of Courts.— The statute of jeofails in several states has been supposed to enlarge the operation of Consensus by making the principle of waiver applicable to the matter of the mandatory record as well as to the matter of the statutory record. This legislation has been long and furiously discussed, as in New York, Illinois, Missouri and Indiana.*® § 263. Legislation in Disaccord With Fundamental Law. — In plain language the object of these statutes is to exclude the state — the public — as a party in procedure. This is indicated by the fact that the matters relating to the general demurrer, the motion in arrest of judgment, of non obstante veredicto^ 38 — See Qnod ai initio non valet intractu iemporis non convalescit. 38a— L.C. 1, 3 Gr. & Eud. 39— See Theory of the Case, also Variance, 4 Gr. & Eud.; also Preface, herein. CONSENSUS TOLLIT EEEOEEM 221 order of repleader and grounds for collateral attack, are some- times held within the scope and meaning of these statutes. In other words, the trilogy of procedure, namely, De non apparen- tibus et non existentibus eadem est ratio, Frustra probatur quod probatum non relevat, and Verba fortius accipiuntur contra pro- ferentem, is often attacked and impaired by these statutes. Cujus est instituere ejus est abrogare. § 264. Limitations of Legislative Authority.— Some cases in these states hold that these statutes apply to formal defects only, and not to matters of substance. These cases hold the statute to be declaratory or affirmative of the common law, and that it adds nothing to the law that Consensus did not already afford. For the law is and always has been that formal error must be excepted to and properly presented by the statutory record, else such error would be waived by an application of Consensus.*^ "The objection comes too late; not having been made in the court below it cannot be made here. It is within the thirty-second section of the judiciary act of 1789, which forbids a judgment to be reversed for any want of form in the pro- ceediiigs except such as shaU have been specially pointed out by demurrer." 7 Wall. 570. Coan v. Whitmore, 12 Johns. 353. "The defendant cannot take advantage of his own mispleading, to defeat the plaintiff 's suit, when the jury have found a verdict for the plaintiff. ' ' Harvey v, Bichards, 1 H. Bl. 644, cited 12 Johns. 353. See Allegans. On the other hand, it has been held that a pleading is suffi- cient if it apprise the respondent of what he is summoned to meet.*^ Such decisions ignore the higher law, the substantive rights of government in procedure. Orders of court cannot invest or give or confer a jurisdic- tion withheld by the constitution.*^ There are many matters that cannot be waived.*^ See also views from estoppel and collateral attack.** §265. Exceptions to Waivable Matter Must Be Promptly Taken, and Stood Upon and Not Condoned ob Aftebwaed Aban- doned, Even fob a Moment. — To this point this maxim was cited and applied in a most instructive way, thus : 40— C. & A. E. E. V. Clausen, 173 III. 100, 103; Sidway, 163 Mo. 342, 373-374. , 41 — SuUivan v. Dollins, 13 111. 88 (This ease can be cited to sustain the view that pleadings can be waived). Contra, Israel, L.C. 93, 3 Or. & Eud. See also Paraiso V. IT. S., 4 id. 42— The Alica (1868), 7 Wall. 571. 43— Shutte, L. C. 291, 3 Gr. & Eud. See §§ 83-123, 1 id. 44—51171-261, id.; 47, 68, 119, ante. 222 EQUITY IN PEOCEDUKE •"It has been asserted here and will be maintained, that a party wishing to avail himself of any error of the court, in any opinion delivered during the progress of a trial, must except to such an opinion when it is giveij. He will not be permitted to acquiesce in an opinion when it is given and trust to its favorable operation, and afterward when a trial results against him, be allowed to go back and take an exception. This is a kind of a speculation in which no court indulges its suitors. By not excepting to an opinion when first given, as it is his right to do if he believes it erroneous, a party is presumed to acquiesce in its correctness; and even though that opinion be incorrect, yet Consensus tollit errorem. ' ' Lane, 11 Mo. 408. Nor will he be allowed the benefit of exceptions "to abatement or dilatory matter if he afterward waives these. Newcomb, 182 Mo. 707. See Earlcness v. Hyde, L.C. 152, 3 Gr. & Eud. American courts respect statutes which provide that by not demurring one waives this right until the time of the motion in arrest is reached. Then, it appears, the lost right returns.*^ § 266. The Policy of Waiver and Its Disregard.— If one fails to make a motion for a new trial, stating the error complained of, ihen he waives it; and some courts assume against continuity of purpose and intent so strongly as to hold that if one does not except to the overruling of a motion for a new trial, this in effect waives all matter of the statutory record ; and still further and with like effect, unless one "saves an exception" in the right record, to the entry of judgment ; or if he does not properly assign error, he waives it;*® or if he does not argue it, he waives it. But it has been held that if one does not demur, then he only waives that right until he can move in arrest of judg- ment. This is intermittent waiver.*'' This is opposed to the philosophy of Consensus. Statutes that provide for such a rule should be disregarded.*^ § 267. Consensus, Etc., Is a Branch of the Law of Election. — This is a distinctively equitable doctrine, which proceeds upon the theory that when one may choose between inconsistent things he is bound by the choice he makes. Hence arises the rule that an election once made is final and conclusive. If one has a choice of remedies, he is bound by the choice he makes ; or if one may proceed in either one of two courts, he is bound by 45 — Bury, 12 Mo. 298 (This is a loose and dangerous rule and stands for a denial of the right to question a court's authority at every moment; also of funda- mental rules relating to the general demurrer) ; Mallinckrodt, L.C. 12a, 3 Gr. & Eud. ; Clark V. Dillon, 97 N. Y. 370. 46— Paraiso v. U. S., 4 Gr. & Eud. 47— Bury, 12 Mo. 298. 48— Indianapolis E, E. v. Horst, L.C. 223, 3 Gr. & Eud. The Municipal Court Act of Chicago provides that there shall be no review of questions of procedure; in other words, the substantive rights of the state may be legislated away. Chitty, Stephen and Gould can be cited to sustain such statutes, also our institutional works on construction. See Preface, ante. CONSEXSUS TOLLIT EEEOEEM 233 his election. The election of remedies involves important rules -with which the practitioner should be familiar.^" One is estopped from saying or doing inconsistent things. Allegans contraria non est audiendus. In procedure all matters in which the state — the public — has no interest may be classed as formal matters, relating to which the parties may freely stipulate or agree to, directly or indi- rectly, as the case may be. In other words, they can ratify matters not involving public policy; that is, in procedure they, can ratify as they can in contract. But in matters of substance it must be kept in view that the state has an interest, and these matters cannot be waived or stipulated away. The attempt to do so is void. For at all times afterward the state — the whole public — any person — ^may say for and on behalf of the state, Non hcec in fcedera veni (I did not come into this compact) ; Res inter alios acta alteri nocere non debet (A transaction between two ought not to operate to the disadvantage of a third). For this reason the proceedings are declared coram non judice; and quite analogously the illegal contract is subject to what is called a defence of illegality. In pari delicto potior est conditio defendentis. § 268. Enlarging the Province of Consensus, Etc., Attacks Fundamental Principles. — ^And among these the trilogy of procedure, also Interest reipublicce. These principles encroached upon are a network of interactions, correlatives and recipro- cals involving numberless rules of evidence, pleading and practice. In disregard of fundamental law, various states have experimented with attacks upon the trilogy of procedure, and with results discoverable in the theory-of-the-case states, where pleadings are waived and departures and variances are upheld. Even in these states, also in federal courts, more can be picked out supporting the trilogy of procedure as it is conceived by the Roman, Norman, English and best states cases than can be found against it. The canons of that trilogy cannot be said to be outworn or obsolete in a single jurisdiction. The statutes of "Amendments and Jeofails," "the liberal provisions of our code," "our practice act," and "our statute" have not dero- gated from the canons supporting the functions and operations 5ft— Smith V. Hodson, L.C. 156, 3 Gr. & Eud. 324 EQUITY IN PEOCEDUEE of the general demurrer, and its allies at later and various stages in a single jurisdiction. Statutes have caused profound disturbances with judges who did not understand the funda- mental principles of procedure, and that these arose from a prescriptive constitution which can be broken but which can- not be changed in a government of protection. "Our code" and "our statute" have not changed organic law, the law of Mans- field, Marshall, Kent, Story, Shaw and Field. § 269. The Fundamentals of Procedure Are Necessities That Aee Immutable. — They are a bulwark of protection for all our rights and liberties; they are the beacon lights that illumine the way; they are the line that separates a constitutionalism from an absolutism ; they are the landmarks that were set by the. wisdom of antiquity for posterity, and they cannot be changed nor reset. They are divine, for they are unchangeable. They must ever be vindicated by governments that would rule wisely. CHAPTEE XIII (§§ 270-282) 'OMNIA PEAESUMUNTUE EITE ET SOLEMNITEE ESSE ACTA: All acts are presumed to have been rightly, regularly and validly done. The maxim of regularity; presumptions that arise from it. § 53, 1 Gr. & End.; 4 id.; C. v. Kane, L.C. 183, 3 id. Cognate Maxims: ■Consensus tollit errorem : Acquiescence in error obviates its effect. L.C. 290o-299, 3 Gr. & Eud., chapter XII, ante. Ut res magis valeat quam pereat: It is better to conserve than to destroy. 4 Gr. & Bud.; Ddbson v. Campbell, L.C. 232a, 8 Gr. & Kud. The above maxims we have classified as the trilogy of liberal construction, in contradistinction to the trilogy of procedure or of strict construction. In these trilogies lie the philosophies of the mandatory and of the statutory records. These philoso- phies, when weU impressed, are a key and a guide for the practitioner. Leading Cases: ■Crepps V. Burden, Smith 's Leading Cases, L.C. 113, 3 Gr. & Eud. (Superior and inferior courts; distinctions.) Stated and approved, S. v. James, 81 S.C. 197, 128 Am. St. 902, 905 (Construction of Sunday Laws); Snow, 120 U. S. 274; Hahn V. Kelly, 34 Calif. 391, 94 Am. Dec. 742-770 ext. n., 2 Gr. & Eud. Crogate's Case, Smith's Leading Cases, 8th ed. (Jurisdictional facts must affirma- tively appear in the right record. The maxim Omnia prwsumuntur rite has no operation here.) This case was cited and approved in Mice v. Travis, 117 111. App. 644, 4 Gr. & Eud. It was reversed, 216 111. 249 (Jurisdictional fact in affidavit of replevin is sufficient to support a justice's judgment). Walker v. Turner, 9 Wheat. 541, L.C. 118, 3 Gr. & Eud. S.P. as Crepps and Crogate 's Case, ated and followed, S. v. Metsger, 26 Mo. 66; P. v. Willis, 14 Johns. 370; Powers V. P., 4 Johns, 292; Doddridge v. Peterson, 222 Mo. 146, 155; Falle v. Fleming, 19 Mo. 454, 461, 61 Am. Dec. 566. § 271. Evidence Is One of the Law's Most Important Branched. — Its rules and their cognates include ^many of the most important elements. Among these are the trilogy of proce- dure, and the trilogy of liberal construction, which includes Omnia preesumuntur rite, etc. This is not only a presumption 225 226 EQUITY IN PEOCEDUEB of much consequence and utility, but it is also closely related to pleadings, practice and construction. As a rule of construc- tion it is a part of Ut res magis valeat quam pereat (It is better to conserve than to destroy). Benedicta est expositio quando res redimitur a destructione. But Omnia prcesumuntur rite is not the greatest rule of evidence; what that rule is, is next stated. § 272. "What Ought to Be of Record Must Be Proved by Eecokd and by the Eight Eecord." — This is the greatest rule of evidence.^^ This rule is a corollary of the trilogy of proce- dure. This trilogy, as we have shown, safeguards the state's — the public — interests in procedure. Eelating to those matters of which the state is a silent third party, there attend strict rules of construction for reasons of public policy. For the conservation of this policy the mandatory record is conceived. § 273. Limits of Liberal Construction to Sustain a Judgment. —Substance is protected by the prescriptive constitution. What relates to the wronged person, the wrong done him and the wrongdoer is substance which can be neither waived, abolished nor changed. The importance of questions arising from these views may be judged from the following quotations: "It is a general rule of pleading established by the common law because it is a dictate of common sense, that after verdict it will be intended that everything- was proved, without proving which, there could not have been a verdict for the party: Provided, the declaration contains a general allegation of a cause of action, defective only in some circumstance of fact, which may be embraced by it, and inferred from it." Holland, 4 J. J. Marshall 20. In the same opinion the judge says, the "omission to aver possession in a declaration for trespass by the owner would be cured by verdict. ' ' "If the plaintiff shows a good title, however defectively he may have set it out, the verdict cures it. There might be vices in the declaration, fatal defects on special demurrer, but there is a healing virtue in a verdict, which cures every- thing but mortal diseases — all but radical, constitutional defects." 11 Ser. & K. 30. "The plaintiff in her petition averred that, at the special instance and request of defendant, she had promised to marry him (without averring that defendant had promised to marry her), and the defendant, not regarding his said promise,, etc., but contriving to injure and deceive the plaintiff, had married another person. Held, sufficient after verdict, although it would have been bad on demurrer." Boper v. Clay, 18 Mo. 383, 59 Am. Dec. 314-320 n. . Cases, Hurst,. 96 Mo. 172 ; Johnson, 96 Mo. 346. "So of an omission to state the amount of damages in the declaration." 59 Am. Dec. 320. "An omission of the amount of damages, in a declaration, is merely technical, and' can be taken advantage of only in the court below." Hargrave, Breese 401, 12 Am. Dec. 201; omission of amount of damages will not vitiatft it, Mattingly, 123 111. 618; it is sufficient if the statement of the cause diselosea a sufficient claim for damages. Hurst, 13 111. 599; 12 Am. Dec. 204. 51— See Chap. X. OMNIA PE/ESUMUNTUR 227 The above quotations are in accord with Jackson v. Pesked.^^ Stephen's views of this leading question are quoted, § 116 ante; Story's, in § 47 ante. § 274. Jurisdictional Facts Must AflBrmatively Appear; They Wnjj Not Be Peesumed. — This is the rule safeguarding the state's interests. In the scheme of protection a court from necessity must keep a record, and likewise this record must evince certain facts. That the proceedings must be coram judice is the first rule of res adjudicata. For this the rule is peremp- tory that what ought to be of record must be proved by record and by the right record. This rule cannot be satisfied by pre- sumptions nor by liberal rules of construction. Relating to matters that concern the state, the silent third party on the record. Omnia prcesumuntur rite, etc., is not applied. At least, primary matters must affirmatively appear; implied or inci- dental facts may be supplied by liberal intendment.^^ § 275. Matter of the Statutory Record Caji Be Waived.— To the statutory record, the maxim Omnia prcesumuntur rite and its cognates — Consensus tollit errorem and Ut res magis valeat quam pereat — apply. The policy of the law favors a waiver of formal or adjective matter, agreeably to Interest reipubliccB ut sit finis litium.^* And so it is that, if no motion, for a new trial is filed, this operates as a waiver of all errors in the statutory record; likewise if there is no exception to over- ruling this motion ; likewise if no exception is taken to the entry of judgment ; likewise if no assignment of errors is filed ; like- wise if no proper abstract of the record is filed ; likewise if each error assigned is not argued. Herefrom the philosophy of the statutory record may be perceived. §276. The Presumption of Regidarity Is Applied to the Philosophy of the Statutory Eecoed. — The matters which do not concern the state can be waived; whatever concerns only the parties named on the record, they can condone or waive or abandon as they see fit. As to all of these matters, everything 52—1 M. & S. 234, 85 Eng. Eeprint, 246; 105 id. 88, sni L.C. 232a, 3 Gr. & End.; quoted Steph. PI. 149; also in Dobson, L.C. 232o, 3 Gr. & Bud.; 1 Gr. Ev. tS; Bro. Max. 136, 137 (quoting Steph. PI.); 181-182 (quoting Jackson t. Pesked), 602, 8tli ed. 53— Dobson v. Campbell, L.C, 232a, 3 Gr. & Bud.; Stepb. PI. 146-150 (Aider by pleading over) ; Jackson v. Pesked, supra; 1 Gr. Ev. 19. 54— § 103, 1 Gr. & Bud. ; L.C. 290a-299, 3 id. 228 EQUITY IN PROCEDUKE is presumed to have been rightly, regularly and vaUdly done, unless the statutory record affirmatively shows to the contrary. As to this record, error is not presumed. This record the court will not sua sponte open and look into, except as may be required by the assignment of errors, and its consequents above mentioned. But it is otherwise as to matters of the mandatory record."^" § 277. Omnia Praesumiutur Rite and Its Cognates Express THE Old Law. — Statutes of Amendments and Jeofails reaflSna this old law. These are affirmative or declaratory statutes. Notwithstanding the broad language of these statutes, still they are declared as merely affirmative ; they really add nothing to the law that did not formerly exist. The liberal provisions of the codes are nothing more than the statute of Amendments and Jeofails. They are construed in the same way. They apply to formal matters only; they do not affect the substance.®** The substance or substantive mat- ters of the state's rights cannot be waived nor legislated away. Enlargement of the province of the maxims above referred to encroaches upon the trilogy of procedure. Hereby the phi- losophies referred to would be so distorted and perverted that they would not be a key and a guide. Where such enlargement has been recognized, there procedure becomes simply a mass of statutes and. decisions ; these and their incidental accumula- tion constantly tend to long and ever lengthening rows of books that are too vast and unwieldy for human capacity. Where its philosophy is lost the law is lost.®'^ § 278. Effacement of the Distinctions Between the Two Rec- OEDs Dismembers the Philosophy of the Law. — This is well illustrated in the "theory of the case" states; also in the dis- cussions of Crepps V. Durden;^^ also in Hahn v. Kelly.^^ The cases last mentioned involve the distinctions between 55 — Quod ab initio, etc., Chap. VIII, ante: Windsor y. McVeigh, L.C. 1, 3 Gr. & Eud. ^ 56 — Clari v. Dillon, 97 N. Y. 370; MaUinekrodt, L.C. 12a, 3 Gr. & Bud.; Andrews v. Lynch, 27 Mo. 167. 57— See Preface, 3 Gr. & End.; Green Bag, Feb., 1910: 34 Am. Bar Assn. Eep. 787. 58— Smith's Lead. Cas.; L.C. 113, 3 Gr. & Eud., et sea. 59—2 Gr. & Eud. OMNIA PE^SUMUNTUR 229 superior and inferior courts, also the presumptions that attend their respective proceedings.®" § 279. Implications Unavailing to Impeach Proper Matter in THE Eight Eecobd. — In disregard of the exclusive functions of the mandatory record, some courts indulge in implications to supply omitted matter from the right record in order to sustain judgments agreeably to Ut res magis valeat quam pereat. The record somewhere should present every essential, every sub- stantive fact upon which a judgment depends. And as to this the inexorable rule should be that what is not shown by the record is conclusively presumed not to exist. This conclusion is dictated by the maxim De non apparentibus et non existentibus eadem est ratio. But it must be admitted that the cases are abundant that hold that unless the record is positively contra- dicted the omitted matter of substance may be imported by implication; or by what is of less significance, by superfluous judicial recitals. To illustrate: In Harrow v. Grogan^^ the record showed that the service of process was null and void. But after the record entries showing such facts, enough time elapsed for the issuing of an alias summons and its service before the judgment was entered. No record matter showed that a summons issued and was properly served ; although it was the clerk's duty to make and keep a record showing such facts, if these facts properly existed. Nevertheless, in order to sustain the judgment, it was pre- sumed that the clerk issued a summons and that it was prop- erly served and that none of these matters were made of record. Still it was assumed that jurisdiction of the person was obtained, and thus the judgment was sustained. Omnia prcesumuntur rite. In Harrow, this maxim of liberal construction was erro- neously given more weight and effect than the maxim of strict construction, namely. Be non apparentibus et non existentibus eadem est ratio. The substantive rights of the state are safe- guarded by this maxim. Cooper V. Reynolds is discussed in relation to Consensus tollit errorem. It is far more objectionable even than Harrow. In Cooper, superfluous judicial recitals were made available to eO—Borden v. Fitch, Bloom v. Burdick, L.C. 266, 267, 3 Gr. & Bud.; Eice t. Travis, 216 111. 249 ; Doddridge, 222 Mo. 146. 61—2 Gr. & Bnd. 230 EQUITY IN PEOCEDURE supply a palpable omission of a matter of substance that ought to have been of record. Cooper is incompatible with Windsor V. McVeigh. Justice Field dissented in the former, and Justice Miller dissented in the latter. From cases like Harrow and Cooper has come the condition which is now characterized as "deplorable" and "appalling." § 280. Superior and Inferior Courts; Distinctions.— The authority of a superior court to enter a judgment depends upon its record and the files or documents attending; but the authority of an inferior court to enter a judgment must appear from the judgment entry itself. In other words, the jurisdic- tional facts to sustain the judgment of an inferior court must appear upon the face of the judgment itself.®^ But in a superior court of record, while these facts must affirmatively appear, the files as well as the record entries may show them. To illus- trate, if res adjudicata is pleaded by the record of an inferior court, then the exemplification of the judgment record is suffi- cient ; but if the judgment of a superior court of record is relied upon then the various required documents must be presented.^* Accordingly, it appears that jurisdictional facts must appear upon the record of the inferior court, but in the superior court the jurisdictional facts may be gathered from various docu- ments or the files, which include the pleadings. In the "theory of the case" states, it seems that jurisdiction has but two ele- ments — 1, jurisdiction of the person; and 2, a sufficient record entry which the court could or might have entered had there been required authority from the pleadings and other documents. Wherever jurisdictional facts are presumed for the inferior court, there the distinctions between superior and inferior courts are obliterated.®* From the above observations it is clear that if Omnia prcBsumuntur rite is applied to the record of an inferior court, then the chief distinction between superior and inferior courts ceases. Even as to the superior court, this maxim cannot aid, where neither entries nor files show the jurisdictional facts ; as to the inferior courts, the files cannot be looked to at all. When 62— Crepps v. Burden, L.C. 113, 3 Gr. & Eud., et sp.q.; Crogate's Case, Smith's Lead. Cases, 8th ed. 63 — See Res Adjudicata, 4 Gr. & Bud. 64— Bice v. Travis, 216 111. 249. OMNIA TEiESUMUNTUR 231 properly understood, this is the true and only distinction be- tween the two courts. Overlooking it has wrought great confusion. Taxation and other statutory and inferior tribunals are gov- erned by the same principles as all other tribunals not governed by the course of the common law.®' § 281. The Principal Maxim Is One of Great Utility . —It often appears as a ground and rudiment of law, and as such it is a rule of necessity and of convenience. It is presumed that one acts morally and with good intent in all his dealings. Honesty and good faith are presumed; crime is not presumed {Malum non prcesumitur) .^^ The occupant of land is presumed to have a right thereto;®'^ a license is presumed from long use; the validity of long enjoyment of a right is presumed (Probatis extremis prcesumuntur media) ; the regularity of official action is presumed; also that officers have acted bona fide if prima facie authority for their actions appears;*® likewise as to the regularity of judgments, and that to sustain them necessary facts were proved;*^ Prcesumatur pro justitia sententicef° an appellant must present a record showing that a judgment is wrong.'' ^ Marriage and legitimacy are presumed.''^ But jurisdictional facts are not presumed when a judgment is offered to prove res adjudicata or title to property. A record offered to prove the judgment of an inferior tribunal, or of a tax, must afflrmatively present every fact upon the face of the record. But a more liberal rule applies to the judgments of superior courts, as already explained.''^ Prcesumatur pro justitia sententice. § 282. In Contract all Acts Are Presumed Right and Regular. — This rule is liberally applied to uphold contracts, and espe- cially commercial paper.'^^ 65— Tilton v. E. B., L.C. 133, 3 Gr. & Eud., et seq. 66— Coffin V. U. S., 2 Gr. & Eud. 67 — Lester v. Foxcroft, L.C. 341, 3 Gr. & Eud.; Williamson v. Brown, 4 id.; McNair, 5 Mo. 300; Niles, 98 Minn. 39, 13 L. E. A. (N. S.) 49-150 ext. n. 68— C. v. Kane, L.C. 183, 3 Gr. & End.; McNair, 5 Mo. 300. 69— Dobson v. Campbell, L.C. 232a, 3 Gr. & Eud. 70— CTem, L. C. 2c, 3 Gr. & Eud. 71— MeArthur v. Howett, L.C. 99, 3 Gr. & Eud. 72— Broom's Max. 948-953, 8th ed. 73— Bro. Max. 950-953, 8th ed. ; cf. pp. 180-182, 601-602, id. 74 — Swift V. Tyson, 4 Gr. & Eud.; Green County, 211 XJ. S. 582; Vt res magis valeat quam pereat. 332 EQUITY IN PKOCEDUEE The rule imposing the burden of proof upon the plaintiff and requiring him to show error or a wrong is agreeable to the principal maxim. For no one is presumed a wrongdoer until he is alleged to be so, and then proven to be so, either by his admission upon the record, or if he denies the substantive facts constituting the wrong, then by affirmative evidence. CHAPTEE XIV (§§ 283-293) UT EES MAGIS VALEAT QUAM PEEEAT: It is better to conserve than to destroy. In other -words, Benigne faciendee sunt interpretationes propter simplificatem laicorum, ut res magis valeat quam pereat et verba intentione non e contra detent inservire (A liberal construction, should be put upon written instruments, so as to uphold them if possible, and carry into effect the intention of the parties). 4 Gr. & Eud.; Harper v. Ins. Co., L. C. 218, 3 Gr. & Eud. Cognate Maxims: Expressio eorum qua tacite insunt nihil operaiur: Things implied need not be men- tioned, or, in other words, What is implied is surplusage if it is expressed; or the express mention of what is implied is inoperative. 2 Gr. & Eud. Lex non exacte definit, sed arbitrio boni viri permittit : The law does not define exactly, but trusts to the judgment of a good and wise man. See 4 Gr. & Eud. ; Equity and its maxims. Superior equity controls constitutions. Oakley v. Aspinall, L.C. 222, 3 Gr. & Eud., et seq.; S. ex rel. Henson v. SheppaYd (Mo.) 4 Gr. & Eud. ; In prwsentia majoris cessat potentia minoris. Ita lex scripta est: So the law is written. This is a maxim of the strict con- shructionist, who attempts to follow the letter of the statute. See Lex non exacte, supra. Discerne per legem quid sit justum: To see what would be just according to the laws in the premises. Faber, 13 Mo. 543. Quod per recordum probatum non debet esse negatum : What is proved by the right record ought not to be denied. § 210, ante. What the state prescribes for the right record is conclusive. See Qiaps. IX and X, ante. What the parties agree shall attest what relates to them personally is also conclusive. § 53, 1 Gr. & Eud. See Oral Evidence; Fym v. Campbell, L.C. 52, 3 Gr. & Eud., stated in Ware v. Allen, 128 U. S. 590, also in Beach v. Nevin, 162 Fed. 129, 18 L. E. A. (N. S.) 288, n. Contemporanea expositio est optima et fortissima in lege: The best and surest mode of expounding is by referring it to the time and the circumstances under which it was made. 2 Gr. & Eud. ; see Fym v. Campbell, supra; Oral Evidence, 4 id. To uphold contracts, courts will inquire into surrounding facts and circumstances and from these determine what the contract was, and what the parties intended. Statutes cannot shield fraud and imposition. Lester v. Foxcroft, L.C. 341, 3 6r. & Bud. See "Once a mortgage, always a mortgage." Verba intentione debent inservire: Words are to be governed by the intention. 4 Gr. & Eud.; Sarper v. City Ins. Co., L.C. 218, 3 id., et seq.; Boardman v. Florez, 37 Mo. 559, 560, 561 (Intent limits and expands words) ; Kemhle v. Farren, L.C. 391, 3 Gr. & Eud. (Contract to pay fixed damages, construed to mean actual damages.) Vno absurdo dato infinita sequuntur: One absurdity being allowed an infinity follow. 4 Gr. & Eud. Quod pure debetur prcesenti die debetur: That which is due unconditionally is due now. If a note or other contract expresses no time of payment, it is due on demand. Commercial paper and other contracts are upheld if possible. See 233 234 EQUITY IN PEOCEDUEE Commercial Paper, 2 Gr. & Eud.; Sturdivant v. Bull, L.C. 410, 3 id. All am- biguities are resolved against the promisor or obligor. Verba fortius. It is presumed sense not nonsense was intended. Allegans contraria. Qui dat finem media ad finem necessaria: He who gives an end gives the means to that end. C. v. Andrews, 3 Mass. 129. Leading Cases: Boe V. Tranmarr, Smith's Leading Cases, 4 Gr. & Eud. Deeds will be upheld if possible. Green County, Kentucky, v. Quinlan (1909), 211 U. S. 582; Quinlan, 157 Fed. 33, 19 L. E. A. (N. S.) 849 (Lurton, J., dissents), 205 V. S. 410, 51 L. ed. 860, n. Municipal bonds; every presumption is in favor of. Omnia prcssumuntur rite; Probatis extremis prcesiimuntur media; "Where one of two equally innocent persons must suffer from the fraud of a third, he who first trusted must first suffer.". Eeversing, S.P., 116 Ky., 108-135: contra cases. Eegularity of official acts presumed. Ontario Land Co. v. Yorby (1909), 212 XT. S. 152, 159. Assessment roll for taxation aided by estoppel in pais. See Quod ab initio, also "What ought to be of record," etc.; Quinlan v. Green Co., 205 TJ. S. 210 (Omnia prwsumuntur rite; performance of official entry presumed). §284. Constitutions Will Be Upheld.— The ends and pur- poses for which, great charters were declared will be considered, and will guide in construction. Accordingly John Marshall con- strued in M'CuUoch v. Maryland.''^ A principal thing carries with it its incidents.^® Lex non exacte. Neither constitutions nor statutes are construed against fundamental law. The principles of the prescriptive constitu- tion are always respected. To illustrate : The trilogies of pro- cedure and of liberal construction are not derogated from, but guide construction.^^ Codes should be construed to aid the due administration of the laws. In prcesbntia majoris cessat potentia minoris. § 285. Statutes Should Be Construed to Conserve, Not to De- STKOY. — Statutes in derogation of the common law are strictly construed.^® The application of this rule depends upon know- ing what the common law is. If the principle involved is the prescriptive constitution, then the statute yields to this organic law. To illustrate : If a statute provided for judicial determina- tion, then it is implied that notice of the proceedings must be given ;^^ also if a court is provided with a clerk and a sheriff, 75— Leading Case 147, 3 Gr. & Bud. 76 — Expressio eorum, 2 Gr. & Eud.; TJ. S. v. South Carolina, 4 id.; Keller, 213 TJ. S. 145; 8. v. Townley, L.C. 225o, 3 Gr. & Eud. 77 — Bliss, Code PI. 138-141 (Important sections to be familiarized) ; Indianap- oKs E. E., L.C. 223, 3 Gr. & Eud. 78 — Heydon 's Case ; Andrews v. Lynch, 27 Mo. 107. i 79 — Audi alteram partem. UT KES MAGIS VALEAT 235 then a record of proceedings is implied. From sucli express powers conferred many implied or incidental powers annex -themselves by implication. Thus the rule is that the ends and purposes of any express power are looked after, and construc- tion is made in accordance with the end to be obtained, and the necessities of the case. § 286. Codes and Practice Acts; Construction Of.— Eeform of procedure has been attempted by statutes in American states with destructive effects instead of reformatory benefits. Only in Wisconsin and one or two other states has the code been con- strued in the light of the prescriptive constitution — the trilogy of procedure — the dictates of Interest reipubliccB ut sit finis litium. Looking from the philosophy of the mandatory record and of the statutory record, the code and practice acts have been construed without regard to fundamental law and the necessi- ties for operating the judicial department, and in profound ignorance of the fact that statutes can affect only formal matter and not matter of substance.^^^ Statutes can unify, simplify and expedite; but they cannot abolish nor impair necessities or fundamental requirements for constitutional procedure. But this view has seldom been taken. In the preface to Volume 3, Grounds and Rudiments of Law, also of this volume, reference is made to the true condition. Coke's three degrees of certainty, Chitty's three kinds of aider, and the adoption of Chitty's views in Stephen's and Gould's Pleadings have proved a frail and flickering light. To be connectedly considered with these authors are the "puzzles" quoted under the title Variance, 4 Grounds and Rudiments; also §§ 138-141, Bliss, Code Pleading; also Sedg- wick's Construction of Constitutional and Statutory Law, on pages 269-280. Of all these, Bliss is most respectable, but he is equivocal, and lacks matter, force and clearness. He does not express himself as well as Story, § 10, Story's Equity Pleading. The justness of these observations will appear from a considera- tion of the trilogy of procedure. § 287. Courts Will Uphold a Judgment— A Contract of Rec- OBD IF Possible. — This is done in obedience to public policy, as will appear from the discussion of Interest reipublicce ut sit finis litium. Agreeably to this, if essential matter—' ' substance ' ' 79a — See Jeofails. 236 EQUITY IN PROCEDUEE ' — appears from the mandatory record in accordance with the rule, "What ought to be of record must appear by record and by the right record," then the proceeding will be sustained; Ut-res magis valeat applies. And for the operation of this maxim Consensus tollit erroreni is applied to all formal or abatement, dilatory or waivable matter. It is the policy of the law to waive or to pass by formal or adjective matter.*" Formal matter is waived if passed for a moment only ; waiver of formal matters awaits no pleading over, no verdict, nor action of statutes of amendments and of jeofails, if the waiver thereof could be found or was in any way evinced before pleading over or the verdict or the reference to the statute, the "liberal pro- visions of our code. ' ' To illustrate : If the party said, I waive process, and its service, and will appear and plead issuably to the merits (the substance), all formal matter would be waived at that instant. Consensus tollit errorem. Thus begins the construction of the record according to its substance; and this beginning is from the philosophy of the trilogies of procedure and of liberal construction, without regard to Coke's three de- grees of certainty, or Chitty's Chapter X, Volume 1, wherein he discusses his aider by pleading over, aider by verdict, and aider under the statute of Jeofails. Looking from the philosophy of the law as comprehended in Consensus tollit errorem and in Interest reipuhliccB, judging from Coke's three degrees of cer- tainty and Chitty's Chapter X, and from Stephen and Gould, it cannot be said that they understood and wrote from the standpoint of that philosophy; nor did they make clear the dis- tinctions between the mandatory and the statutory records, nor the respective philosophies relating thereto; in other words, they did not name, make clear and keep the fundamental prin- ciples in view.*^ § 288. By Answering, AU Formal Defects Are Waived.— This is a usual provision of the code, which provides that formal or adjective matter may be waived, but not matter of substance. Thus it may be said that the code provides for aider by pleading over. Thus it appears that the code provision is in strict accord with fundamental law, of which are Consensus tollit errorem and Interest reipuhlicce. In the light of fundamental law the 80— §i 53, 103, 1 Gr. & Bud. 81—70 Cent. L. J. 455-460. UT EES MAGIS VALEAT 237 code should be construed.^^ The trilogy of procedure is the best guide.®* It is the North Star and its pointers. § 289. Substance Is Sought, Looked After and Upheld.— To illustrate: If a pleading has several counts, and all of them are bad except one, a general demurrer to the pleading en masse will be overruled. A pleading will not be too broad. As to substance the court will sua sponte look and will seek to con- serve. This is favoring the disposition of a cause upon its merits.®* Herefrom arises the rule that a general demurrer wiU be overruled if there be one good count or statement in the pleading. § 290. Formal— Dilatory— Abatement Matter Is Not Fa- voBED. — The favor shown substance is not extended to formal matter. Formal matter is governed by a policy of its own, and this policy is to waive or pass it by if possible. It is the policy to speed a cause to its determination upon the merits, and for this reason, therefore, formal or dilatory matter is held waived if possible, agreeably to Consensus tollit errorem. To formal matter an objection en masse will be overruled unless every matter objected to is defective.®^ Thus appears the fact that the philosophy of law does not favor technicalities except when they are the safeguards of substantial rights.®^ § 291. Deeds Are Upheld If Possible.— In Shelley's Case the policy was to defeat a deed if possible. The feudal law was not respectful of the maxims of the Eoman law which favored alienation. The history of assignments and the reluctance of feudal law to protect an assignee indicate the feudal spirit; it could not apply the rule, "An assignee stands in the shoes of his principal."®^ To this day in many courts the assignee of a chose in action is hampered with feudal conceptions of proce- dure.®® With equity came the mkxims and the spirit that sees and protects the assignee and the bona fide purchaser,®^ The 82— Bliss, Code PI., § 141. 83— Chaps. V-VII, ante. S4_§§ 53, 103, 1 Gr. & End. 85— Kraner, L.C. 299, 3 Gr. & End. 86 — Consensus tolUt errorem; Interest reipwhcw. g7 — Assignatus utitur in jure auctoris. 88— Grain v. Aldrich, 2 Gr. & End. . , ^ ,, gg ^Bassett v. Nosworthy, L.C. 395, 3 Gr. & Bud. (choses m action) ; Le Neve, L.C. 396, id. (real estate) ; Swift v. Tyson, 4 Gr. & Eud. (commercial paper) ; Horn V. Cole, 2 Gr. & Eud. (personal property). 238 EQUITY IN PEOCEDUKE rights of the bona fide purchaser rest upon a truly great equi- table principle, which is, "Where one of two equally innocent persons must suffer from the fraud of a third, he who first trusted must suffer. ' ' This principle is fully discussed in Lick- barrow V. Mason, Smith's Leading Cases, Leading Case 394, 3 Or. & Eud. The above principles imderlie the assignee of all things, and together with Ubi jus ibi remedium guide the remedies, which modern courts have restored to an awaiting and a commercial world, that favors alienation and protects the purchaser in good faith. For him has been developed the law of estoppel. The above matters relate to all branches of law, whether classified as "substantive" or as "adjective" law. For remedies the law construes and directs, and this it is that characterizes the development of equity or the Eoman law. If parties come together and assume to contract, and from their conduct appear the assent, the consideration and the le- gality of the subject-matter, then from all these elements the court will, if possible, declare a contract. And so it is that if it is also agreed that a certain writing shall evince the contract, then oral contemporaneous evidence is inadmissible to alter or vary the writing or the contract admitted or established. Therefore, if a deed contains a restrictive clause, as broad as the granting words, then the latter will prevail over the former.^" Verba fortius accipiuntur contra proferentem. Ee- pugnant words yield to these maxims. A repugnant pleading is void. Pain, L.C. 107, 3 Gr. & Eud. But this is because a pleading involves third persons, the state — ^the whole public. This will appear from a consideration of the trilogy of proce- dure.®^ But the rule is otherwise as to a deed, as is above noted. Thus construction differs whe'teithe state is involved and where it is not. The provision in a note that it never be sued leaves the note without a remedy, it has been held.®^ Accordingly we see that a right depends upon its remedy. § 292. Courts Are Bound by the Contracts the Parties Have Made. — Cutter v. Powell; Hoare v. Rennie. But courts guided by equitable principles will construe liberally for a contract, if 90 — Wilkins v. Normaii, 4 Gr. & Eud. 91— Chaps. V-VII, ante. 92— Barnard v. Gushing, L.C. 108, 3 Gr. & Eud. UT EES MAG IS A^ ALE AT 239 its elements appear as already noted. The assent and the con- sideration are always leading equities.®^ If a grantor conveys a parcel of land entirely surrounded by his own, then the law will infer a means of ingress and egress to this parcel sold. This is called a way of necessity.^* Accord- ingly, it is seen how necessity, as a ground and rudiment of law, adds to a deed. So, also, if one conveys by warranty deed, and at the time Jias no title thereto, but afterward acquires title, then this title passes to his grantee.®' Verba fortius. The requirement that a grantor shall sign a deed is satisfied if he write the deed in his own handwriting. Eeason is the soul of the law. § 293. Simple Contracts Are Upheld If Possible.— Commer- cial paper calls for the application of Ut res magis valeat quam pereat in its most liberal aspects. To illustrate : An I. 0. U. if in the handwriting of a party or if signed by him would be liberally construed against the maker. Verba fortius?'^ Com- mercial paper is upheld if possible.®'' Generally oral evidence is inadmissible to affect the note or bill.®^ A simple contract, if -within the statute of frauds, must meet its requirements.^" Wherever there are present the elements of a contract, i. e., the assent, the consideration and the legality of subject matter, a contract will be declared to exist and enforced if possible. Statutes that derogate from such contracts are strictly taken, according to the rule that statutes in derogation of the common law are strictly construed. This rule is well illustrated in Peter V. Compton} In this case the promisor orally agreed to pay the promisees 1000 guineas whenever the latter should marry. In an action brought upon this promise it was pleaded in defence that the promise was within the statute of frauds, which provided that a contract not to be performed within a year was QZ—Non JiCBC in fccdera veni; Lampleigh, L.C. 301, 3 Gr. & Eud.; Bartholomew ^' "^^g^See^Ways o/ Necessity, 4 Gr. & Eud.; Pinnington y Galland, id. 95— Christmas v. Oliver, 2 Gr. & Eud.; Bro. Max. 542-544. 96— See Commercial Paper, 2 Gr. & Eud. 97— Sturdivant v. HuD, L.C. 410. 3 Gr. & Eud. 98— See Oral Evidence, 4 Gr. & Eud. f l.™40 iGrTi^d.. mite^v! Iittsfl02 Me. 240, 15 L. E. A. (N. S.) ^n 'T^o'- Lawrence rbooke, 56 Me. 187, 96 Am. Dec. 443; Lewis v. Tapman, 90 Md. 294, 47 LB A (N. S.) 385: cases;' 70 Cent. L.J. 420-425: cases. 240 EQUITY IN PEOCEDUEE unenforcible unless in writing. But it was held that the eon- tract was one which could or might be performed within a year, and therefore it was not within the statute of frauds. So, also, an oral promise to support one during his life is valid, for the reason that the beneficiary might die within a year. Therefore if a contract from its nature could or might be performed within a year it is held to be without the statute. And so it is that contracts will be upheld if possible. Vt res magis valeat quam pereat. Accordingly the contracts of foreign corporations are upheld in some states, where they have contracted before having filed preliminary papers.^^ In all contracts the assent (Non hcec in foedera veni: I did not come into this compact) is strictly safeguarded. This prin- ciple is one of the most sacred in the law. It is an axiom that courts will not make contracts for parties — that parties must make their own contracts. Over this question there is inter- minable discussion, as may be gathered from Cutter v. Powell,^ Hoare v. Rennie,^ Norrington v. Wright.* These notable cases in contract law show how scrupulously principles of the pre- scriptive constitution are respected. For the vindication of these principles the able constructionist ever applies Ut res 'magis valeat quam pereat. la — Kirven, 2 Gr. & Eud., note 131 Am. St. 1079, citing contra cases; Fritts v. Palmer, 132 TJ. S. 283; National, 196 Mass. 458, 14 L. E. A. (N. S.) 561, n. (may qualify and then sue) ; § 13, ante; § 52, 1 Gr. & Eud. 2— L.C. 308, 3 Gr. & Eud. 3—5 H. & N. 19, 2 Willst. Conts. 84. 4^115 U. S. 188. 2 Willst. Conts. 107, and cases cited ; 4 Gr. & Eud. CHAPTEE XV (§§ 294-308) ALLEGANS CONTEAEIA NON EST AUDIENDUS: One who alleges contradictory things is not to be heard. Cognate Maxims: Expressio unius est exclusio alterius: The express mention of one thing is to the exclusion of all others. Nihil possurrms contra veriiatem: We can do nothing against truth. Posito uno oppositorum negatur alterum: One of two opposites being aflBrmed, the other is denied. Falsus in uno, falsus in omniius: False in one thing, false in all. N'Mus commodnm capere potest de injuria sua propria: No one can take advan- tage of his own wrong. Ex dolo malo non oritur actio: No cause of action arises out of fraud. Alterum non Iwdere: We should injure no one. Volenti non fit injuria: One who invites or consents to his injury shall not be heard to complain of it. 4 Gr. & End. Consensris tollit errorem: He who acquiesces in an error shall not be heard to com- plain of it. 2 Gr. & Eud. ; L.C. 290a-299, 3 Gr. & Eud. Leading Cases Illustrating Applications of Allegans: Estoppel of Eecord: Kingston's Case, L.C. 76, 3 Gr. & Eud.; Outram, L.C. 25, id.; Cromwell, L. C. 26, id. Forensic Estoppel: Baily v. Baily, L.C. 44, 3 Gr. & Eud. Estoppel by Deed: Christmas v. Oliver, 2 Gr. & Eud. Equitable Estoppel: Horn v. Cole, 2 Gr. & Eud.; Freeman v. Cooke, id.; FicTcard v. Sears, 4 id.; Lindsay v. Cooper, 4 id.; Bright v. Boyd, 2 id.; Valle's, 29 Mo. 152-166; Savage v. Foster (1723), 9 Mod. 35, 2 White & Tudor, Lead. Eq. Cas. 679-693, 88 Eng. Eeprint, 299. An election once made is final and conclusive. Smith v. Hodson, L.C. 156, 8 Gr. & Eud. See Consensus. Eepugnant Pleadings: Pain, ex parte, L.C. 107, 3 Gr. & Eud. False and Sham Pleadings: Wonderly v. Lafayette Co., L.C. 102, 3 Gr. & Eud., et seq. Sham allegations confer no jurisdiction: Wonderly, supra; Scott v. McNeal, 4 Gr. & Eud.; Thomas v. P., 107 111. 517, 47 Am. Eep. 458; Fabula non judicium; Graver v. Faurot, L.C. 103, 3 Gr. & Eud., et seq. A denial and an aflSrmative plea if inconsistent are ineffectual. Bowlus v. Phasnix Co., 133 Ind. 106, L.C. 100, 3 Gr. & Eud. Generally an affirmative plea overrides a denial. Dickson, L.C. 34, 3 Gr. & Eud. One cannot demur and answer to the same count at the same time; this would be not only inconsistent but absurd. Allegans contraria. § 295. Renaissance of the Civil Law.— Equity, the law of estoppel, and other parts of the civil law have been imported into the feudal common law for four hundred years, notwith- standing the Cokes and Blackstones of each generation. This fact is well taught by the introduction and development of the law of estoppel, which was well inaugurated by the Duchess of 241 242 EQUITY IN PEOCEDUEE Kingston's Case, in A. D. 1774.^ The discussion of this case in Smith's Leading Cases shows that it depended upon principles of the civil law not comprehensively introduced nor discussed by- Coke, Blackstone, Chitty, Stephen and Gould. Nor have works on evidence introduced and explained those principles so that they have been understood by bench and bar. Among the great cases of estoppel of record are Kingston's Case, Outram V. Morewood and Cromwell v. County of Sac. How ineffectively the authors referred to cite and impress these cases explains their being so misunderstood in each generation." Bearing in mind that res adjudicata depends wholly upon the mandatory record and its philosophy, reflected in the gen- eral demurrer in all its phases and stages, well opens the way to show that the law of estoppel is in a chaotic condition in all the "theory of the case" states.'' In these states the functions of the mandatory and the statutory record are jumbled and confused. The consequences of this confusion upon the prog- ress of the profession are not only pitiable but demoralizing.® Estoppel cannot be understood without a knowledge of the two records, and their respective philosophies. Estoppel of record is inseparable from "due process of law," the coram judice proceeding, the mandatory record, its philosophy and the trilogy of procedure. Res adjudicata is elsewhere enumerated and discussed as a conserving principle of procedure.^ It would exceed the province of any chapter to attempt to do more than indicate the importance of this large and most important branch of the law, which arises from the principles of the prescriptive constitution; from Interest reipublicce ut sit finis litium, and its cognate maxims. Nihil possumus contra veritatem: We can do nothing against truth (or without truth). The facts of a case are of the greatest consequence ; the maxim is. Ex facto oritur jus (Out of the facts arises the law). Looking from these maxims it is manifest that true pleadings, and plain, direct statements of facts in all judicial documents and proceedings, are great aids 5— L.C. 76, 3 6r. &Eud. 6— i§ 170O-200, 1 Gr. & Bud. 7— See Theory of the Case, 4 6r. & Eud. 8—34 Am. Bar Assn. Eep. 787 (A. D. 1909) ; Res Adjudicata, 4 Gr. & End. 9— §§ 83-123, 170a-200, 1 Gr. & Eud. One of these principles is Allegans eon- trdria non est audiendus. ALLEGANS CONTEARIA 343 to certainty and expedition. The above maxims dictate that pleadings be direct, certain and true, and that the essential facts of a cause be made clear, positive, direct and conscientious. Truth and consistency are necessities in judicial proceedings. In the face of these facts one wonders why it is that the common counts at common law — the general allegation, the general denial and the general issue — could ever receive the countenance they have. The cases show that the functions of pleadings are often lost sight of; that they are not viewed by many courts as a means of limiting issues and narrowing proofs. The uses of pleadings are well comprehended by Lord Mansfield, who ob- served of them, in Robinson v. Raley:^^ "The substantial pleadings are founded iu a strong sense, and in the soundest and closest logic, and so appear wben well understood and explained; though Toy being misunderstood and misapplied they are often made use of as instruments of chicane. ' ' False and sham pleadings encumber the due administration of the laws ; and so do general, ambiguous and repugnant plead- ings. Consequently appears a reason why the conclusion of law is void; likewise the repugnant pleading. § 296. It Is the Policy of the Law to Repress Falsehood and Deceit. — Accordingly the rule is, Falsus in uno, falsus in omni- bus. "Thou shalt not bear false witness" does not mean that one may deal with falsehood in all relations except that of witness. In all relations where one by his conduct or declara- tions is inconsistent, this fact may be shown to discredit or to impeach him. One cannot lead another to his injury and not be liable therefor." One can not induce a state of belief, or even contribute to it, and not be bound by the consequences. To illustrate: An infant may estop himself from pleading his infancy where he has misrepresented his age in order to con- tract. To this situation the lawyer's golden rule applies, which is, Juris prcpcepta sunt Jicec: honeste vivere, alterum non loedere, suum cuique tribuere. This principle, from the trilogy of equity, is equally applicable in procedure, at least so far as the credibility of witnesses is concerned, or formal or waivable matter is involved; also in contract, crime, tort and construc- tion. To illustrate : If one holds another out as his agent, or lO—L.C. 45, 3 Gr. & Bud. Bliss Code PI. 138. ll_Pasley, L.C. 375, 3 Gr. & End. 344 EQUITY IN PEOCEDUKE partner, or wife, or child, he is bound by the contractual lia- bilities which may arise therefrom; or, if one makes another believe he is a burglar, and is treated as such, he cannot com- plain. One misleading or deceiving another to his prejudice has every presumption made against him, and in many rela- tions he is absolutely estopped from contradicting the truth; e. g., if one signs commercial paper, and allows it to get into circulation, he cannot defeat the claims of a Toona fide purchaser.^^ § 297. Pleadings As Evidence.^*— Affidavit of replevin as to value in one case is evidence in another, as is also an attach- ment affidavit. Pleading to an indictment admits its genuine- ness.'* § 298. Forensic Estoppel Consists of Inconsistent Acts, Dec- LAKATIONS AND CONDXTOT IN OFFICIAL PeOCEEDINGS. If OUO ap- pears before a governmental agency and holds out a fact or a transaction in a certain light or way, he will be bound by his declarations and conduct, and they may be pleaded and proved to bind him in subsequent proceedings.'^ Forensic estoppel differs from estoppel in pais, in that it is unnecessary to show reliance upon the act. An assertion of a fact in court is suffi- cient to bind the party making it. ; § 299. Repugnant Pleadings Are VoicL" —A court should not think better of one's case than he pleads it. Every presump- tion is against a pleader. Courts will not make and declare cases nor defenses for parties; parties must plead their own causes and defenses. What they do not plead is presumed not to exist. De non apparentibus. § 300. The ' ' Theory of the Case ' ' Is Applied Upon False No- tions OF Allegans and Its Cognates.'® — In some cases it is 12— Swift V. Tyson, 4 Gr. & Eud. la— Boileau v. Eutlin, L.C. 43, 3 Gr. & Eud. 14 — rrisbie v. U. S., 157 U. S. 160. See Consensus tolUt errorem. 15— Baily, L.C. 44, 3 Gr. & Eud., 2 Smith's Lead. Cas. 951, 8th ed., cases, quoted 1 Herm. Estop. 285, 337; Queea, 10 Q. B. 563, 571;. Phil. E. E., 13 How. 307; Thompson, 218 111. 46. 17 — Pain, ex parte, L.C. 107, 3 Gr. & Eud.; S. v. Jones, 20 Mo. 58; Neville v. Soper, 1 Salk, 213, Eng. Eeprint, cited Steph. PI. 227, 377; Tilden v. P., 242 111. 636 (extremely technical case); Fulkerson, 14 Mo. 49 ; Moss, 216 Mo. 641, 657; Thorn- ton, 43 Mo. 153, 168; S. v. Hardwick, 2 Mo. 226; Caldwell, 60 Mo. 60; Camden, 6 Mo. S87; S. V. Shoemaker, 7 Mo. 177; Steamboat, 9 Mo. 642; Neidenberger, 11 Mo. 361. 18— S. V. O'Neill, 151 Mo. 67, 81 ("One is not allowed to tread back and trip up the heels of his adversary"); Cape G. E. E., 222 Mo. 461, 486-487 (hereafter quoted) ; Hof, 213 Mo. 445, 469. ALLEGANS CONTEAEIA 345 held that if irrelevant evidence is admitted, a cause of action or a defense can be carved out and declared to exist from this evidence without regard to the allegata}^ § 301. Taxpayers Are Estopped If They Appear to Protest Against Levying a Tax.— (English, 214 U. S. 359.) Or by fail- ing to appear and see that a proper assessment was made. Ontario, 211 U. S. 159. These cases offend the principle ex- pressed in Quod db initio non valet intractu temporis non convalescit. % 302. One Cannot Impeach His Own Witness.— One calling a witness of his own choosing cannot afterward impeach his general reputation f'^ but he can contradict his statements. Ec- lating to this rule there is much contention, to which only a reference can here be made.^^ § 303. The Judgment, the Deed, and the Simple Contract Are Aiii Affected by the Operation of Allegans. — Thus it appears that this maxim is of utility throughout contract law. The judgment and its foundation, the deed by its exclusiveness as to parties and its conclusiveness as to the question of a con- sideration, and the simple contract as to the facts upon which its integrity depends, are all greatly supported by the opera- tion of Allegans. The maxim Ut res magis valeat quam pereat supports contracts by construction, while Allegans, etc., sup- ports the facts upon which contracts depend by aiding the proof of these facts. Payment of a forged check by the drawee's bank estops it from disputing the genuineness of the signature.^^ A stock- holder participating in a meeting with all other stockholders is estopped from disputing the validity of the meeting, although a statute declares such meeting is void. Statutes yield to funda- 19— Cape G. E. B., supra; 2 Thomp. Trials, 2310, 2311; And. Steph. PI., § 230, cases 9d ed. Contra, Hudson, 101 Mo. 13, 30 ; Northrup, 47 Mo. 444 (Defenses not pleaded are waived). See Theory of the Case, 4 Gr. & Bud. 20 — See Falsus in uno, 2 Gr. & Bud. 21— Burkhalter, 16 Ga. 593, 60 Am. Dec. 744-752, ext. n.; Becker, 104 N. Y. 394 58 Am Bep 515 (One is not bound by the statements of his witness) ; Cross 108 n' Y. 628; TT. S. v. Brewing Co., 203 111. 306; 2 Wigm. Ev. 896-918; Allen V. 8.,' 28 Ga. 395, 73 Am. Dec. 760-777 (general resume). , ,„ .r t, . 22— Price v Neal, 3 Burr. 135, 97 Eng. Beprmt, 871; stated 10 L. E. A. fN S ) 50- Cooke v. TT. S., 91 XJ. S. 389-405. Contra, Bank of Lisbon, 15 N. Dak. 299, 125 Ai. St. 588, 10 L. B. A. (N. 8.) 49-73, ext. n. «46 EQUITY IN PEOCEDTJRE mental law; from equity arise principles that are superior to statutes.^^ § 304. Estoppel by Deed.^*— The grantor is estopped to deny a sufficient consideration, also other recitals. Estoppels being mutual, the grantee by accepting the deed is also bound by estoppel. A tenant cannot deny the landlord's title. A subse- quently acquired title feeds the estoppel, which rule means this, that if a grantor had no title when he conveyed, by deed of seizin and warranty, and afterward he acquired the title to the prop- erty, then the title thereto passes to the grantee in the deed already given. But it should be noted that this is not so under what is called a quitclaim deed. This kind of a deed does not convey the property retrospectively. There is nothing in a quitclaim deed to raise an estoppel. The sealed instrument conclusively imports a consideration ; but ever since the notable case of Collins v. Blantern^° illegality may be pleaded to an action on a deed. This illustrates the maxim Res inter alios acta, etc., for the state — the third party — not assenting to the contract evidenced by the deed, may at any time inquire into the legality of the consideration. If this is illegal the state in effect says, Nan hcec in feeder a veni (I did not come into this compact) ; or in effect the state says, Alterum non Icedere (We should injure no one). This well illustrates the attitude of the state in procedure, when the proceeding has been conducted without regard to the welfare of the state. Here the proceedings are in effect declared coram non judice. § 305. The Rights of the Bona Fide Purchaser Are Supported BY AN AppLiCATioisr OF Allegans. — The discussions of the bona fide purchaser of chattels, of real estate and of commercial paper will disclose many phases of Allegans.^^ Inseparably connected with, these discussions is a great rule of equity, which is expressed thus, "Where one of two equally innocent persons must suffer from the fraud of a third, he who first trusted must first suffer.^^ In the law of Agency and Partnership there are many applications of the above maxim. 23— Thomas v. B. E., 4 Gr. & Eud. 24^Christmas v. Oliver, 2 Gr. & Bud. 25—2 Gr. & Bud. 26— Le Neve, L.C. 396, 3 Gr. & Bud. (real estate); Swift v. Tyson, 4 Gr. & Eud. (commercial paper). 27 — Lickbarrow v. Mason, L.C. 394. 3 Or. & Bud. ALLEGANS CONTEAEIA 247 § 306. "He Who Does Not Speak When He Ought ShaU Not Be Heahd When He Desibes to Speak."— This maxim is altogether one of the most useful rules to the practitioner, and especially in viewing the matter of the statutory record, in- cluding the objection, the exception, the motion for a new trial, the assignment of errors, the abstract of the record, and the argument of each error assigned. The philosophy of the statu- tory record is promptness, precision and accuracy. When this philosophy is respected it is a key and a guide; its disregard leaves the practice of the law an increasing tangle of statutes, decisions and "late" cases. Every practitioner should under- stand that as to formal error one cannot acquiesce in it and afterwards complain of it. One who delays the disposition of a cause upon its merits must see clearly and speak precisely, truly and not too broadly .^^ Cases prosecuted for the correc- tion of formal error meet many vicissitudes, from the time of taking of the exception, expressing it in a motion for a new trial, and repeating this in the assignment of errors, and even up to the argument of the case. § 307. One Acting on Appearances Held Out to Him Is Pro- TECTED. — Thus if one bears relations to a woman as a spouse, and the latter is trusted on these appearances, the man is bound as a husband; likewise an agency is created by appearances, or a partnership. If a vendee takes possession of land under and in pursuance of an oral agreement and makes lasting and valuable improve- ments thereon, such possession and such acts raise the presump- tion of a contract, and then what this contract was will be inquired after, notwithstanding the statute of frauds and regis- try acts ; there are equitable exceptions to the statute of frauds, and such possession and such acts constitute one of those excep- tions.^" The statute is disregarded by equity. § 308. Title to Real Estate Passes Upon Estoppel in Pais or Equitable Estoppel. — If the owner of land acquiesces in the assertion that the possessor of land owns it, who accordingly in a mistaken belief occupies and improves the land as owner, he will be protected in equity. There are equities to which 28— § 53, 1 Gr. & Eud.; L.C. 290a- 299, 3 id. 29_Lester v. Foxcroft, L.C. 341, 3 Gr. & Eud. 248 EQUITY IN PEOCEDUEE both constitutions and statutes yield. To the claims of one who has acquired rights as a grantee as above presupposed statutes yield.^" Fraud vitiates all into which it enters.^' Neither con- stitutions nor statutes can protect fraud nor override funda- mental law. Principles arise from equity that control consti- tutions and statutes.*^ In prcBsentia majoris cessat potentia minoris. 30 — Horn t. Cole, 2 Gr. & Eud.; Pickard v. Sears, 4 id.; Savage v. Foster; Bright V. Boyd, 2 id. 31 — Ex dolo malo non oritur actio. 32— Oakley v. Aspinwall, L.C, 222, 3 Gr. & Eud. PART III §§ 309-509) FUNDAMENTAL PRINCIPLES ILLUSTRATED IN THEIR APPLICATION BY COMMON LAW AND CODE CASES Chap. XVI. CASES FROM ILLINOIS, ENGLAND, FED- ERAL AND CODE CASES. § § 310-361. (I) KeneaJy v. Glos § 342 (II) Baldwin v. Hanecy § 343 (III) Wright V. Griffey § 344 (IV) Riverside Co. v. Town- shend § 345 (V) Balsewicz v. R. R § 346 (VI) Thomas v. P §§ 347-354 (VII) O'Brien v. P § 355 (VIII) Franklin Union No. 4 § 356 (IX) Rice V. Travis § 357 (X) Taylor v. Sprinkle § 358 (XI) Tilden v. P § 359 (XII) Bishop V. Busse §§ 360-361 Chap. XVII. CASES FROM MISSOURI, NEW YORK AND OTHER CODE STATES. § § 362-509. (I) Biddle v. Boyce §§ 406-427 (II) Eno v. Woodworth §§ 428-434 (III) S. ex rel. Pemiscot Co. v. Scott §§ 435-444 (rV) Cape Girardeau R. R. v. R. R §§ 445-447 (V) Hope v. Blair §§ 448-452 (VI) Bulkley v. Big Muddy Co. . . §§ 453-457 (VII) Davis V. Jacksonville Line. § 458 (VIII) Lilly V. Menke §§ 459-461 249 250 EQUITY IN PEOCEDUEB (IX) Bateson v. Clark § 462 (X) Gramp v. Dunnivant §§ 463-479 (XI) Carson v. Ely §§ 480-482 (XII) Andrews v. Lynch §§ 483-496 (XIII) Mallinckrodt v. Nemnich..§§ 497-504 (XIV) Hannibal R.R.v.Mahoney.§§ 505-508 (XV) Rector v. Price § 509 There are limits of legislative authority. Taylor v. Sprinkle (X.), §§ 315, 341, 356, 473. Beality of facts must exist and these must be pleaded. Thomas v. P. (VI), §§ 347- 354. Statutes of Amendments and Jeofails apply to formal matter only. C. # A. B. B. V. Clausen, 173 111. 100, 103. A recovery must he secundum allegata et probata. Fish v. Cleland, 33 111. 238, L.C. 12a, 3 Gr. & Eud.; Guedel v. P., 74a, 3 Gr. & Eud. Pleadings are essential for the coram judice proceeding. Thomas v. P., supra. Interest reipublicce ut sit finis litium. Kenealy v. Glos, (I.), § 342. Fundamental principles. §§ 333-334; 381 et seq. "In other words, matters of substance, which fall to appear in the mandatory, or record proper — the state's record — are and must be treated in a constitutional government as though they do not exist. The consequence is that such defects may be taken advantage of at any stage of the proceeding. At one stage the objection is called a motion or general demurrer ; at another, motion in arrest, or non obstante veredicto, or repleader ; or, after the direct proceeding is over, the objection may be raised by collateral attack on the fatally defective judgment, or may be urged in questions concerning its elTect as res adjudicata. At whatever stage these objections to the record are raised, they are the same in essence — they amount in all cases to showing the court that the whole proceeding is affected with a fatal weakness through failure of the record to show those Jurisdictional facts which the state requires It must show to constitute the coram judice proceeding. Underlying all these various modes of attacking a proceeding which is fatally defective, is the principle expressed in the maxim, De non apparentihus, et de non existentibus, eadem est ratio: What is not made to appear is to be treated as though it does not exist. This maxim is the great maxim of procedure — a maxim, unfortunately, which is not taught to our stndpnts, and not always enforced from the bench. It is, as W. T. Hughes expresses it, a 'constitut'onal implication' — that is to say, a constitutional government must neces- sarily respect it. Legislatures may pass laws 'abolishing' pleadings, but the courts govern and protect and must rule, otherwise legislatures may pass statutes of jeofails, providing that when a verdict shall have been rendered, the Judgment shall not be affected or impaired 'for the want of any allegation or averment on account of which omission a demurrer could have been maintained.' But the courts invariably annul such enactments, in so far as they attempt to cure errors of substance ; that is, all errors reviewable upon general demurrer, or what amounts to the same thing, upon motion in arrest, and the other methods above pointed out, of calling the court's attention to the fact that there is nothing before it upon which to act. The courts, it is true, seldom ,by name quote the maxim De non apparentibus. There is a per- ceptible effort to ignore maxims, and to discover and set up 'new' fundamental principles of law. But the human mind has perceptions of justice which will not be denied. It works, under its own laws, in obedience to these perceptions, and asserts them in the most unexpected ways. Even the Judge who is most deferential to 'our statute' (providing it violate no type on paper provision of a written constitution) will here and there turn upon it and denounce it as unjust, and void, without refer- ence to any authority other than his own judicial perceptions of morality, convenience, necessity, reason — in short, of justice." — 70 Cent. L. J. 404, 22 Green Bag 475, Edw. D'Arcy. Chitty, Stephen and Gould have not shown that they understood the philosophy of the two records. When its philosophy is lost the law is lost. 70 Cent. L. J. 455-460 ; 42 Chic. Legal News, 399-402; 419, 420 ("The way out of the Jungle"). CHAPTER XVI (§§ 310-361) CONSTEUCTION OF PRACTICE ACTS, ILLUSTRATED BY ENGLISH, FEDERAL, ILLINOIS AND CODE CASES The Cases (§§ 342-3G0) r. Kenedly v. Glos, § 342. Pleadings are necessities to support public policy. Plead- ings and rules of res adjudicata are interactions. A recovery must be secundum allegata et proiata. Sto. Eq., § 28; Frustra probatur quod probatum non relevat. S.P., Hope v. Blair (Mo.), wherein is cited Munday v. Vail, L.C. 79, 3 Gr. & Eud.; §§ 47, 68, 119, et seq. Important rules of res adjudicata. Por res adjudicata the mandatory record is a necessity; Hope; S. v. Muench, 217 Mo. 124, 135, 129 Am. St. 536: Cases; § 473, et seq. Be non apparentibus et non existentibus eadem est ratio (What is not juri- dically presented cannot be judicially decided). § 333. Interest reipubUcce ut sit finis litium. II. Baldwin v. Hanecy, § 343. Eequirements of res adjudicata depend on the plead- ings. Public policy demands pleadings. Interest reipubUcce ut sit finis litium. Cromwell v. County of Sac, L.C. 26, 3 Gr. & Eud., cited and followed. Outram V. Morewood was cited and followed in Vallandingham, 17 111. 25 ; Outram was quoted and followed in Cromwell. Ties adjudicata depends on the mandatory record. Wright v. Griffey, L.C. 28, 3 Gr. & Eud., § 344, post. III. Wright v. Griffey, § 344. Pleadings are to define the subject-matter that was presented to a court for its consideration. For res adjudicata that matter must be described. This description of the subject matter is exclusive; nothing else can be added. Evidence aliunde admissible to identify and explain but not to contradict or add to. Mondel v. Steel, L.C. 77, 3 Gr. and Eud. lY. Hiverside Co. v. Townshend, § 345. That the proceedings must be coram judice is the first rule of res adjudicata. Eule I, Bes Adjudicata, 4 Gr. & Eud. A judgment entered in a cause for one purpose does not conclude a cause brought for a different purpose, i. e. a judgment from a justice's court for possession of land does not conclude a cause in ejectment. These suits were not prose- cuted for the same purpose. V. Balsemcz v. R. B., § 346. A record made upon false allegations by a stranger having no interests before a court without territorial jurisdiction nevertheless is conclusive in a collateral action. Criticisms of this ease. Omnia prwsumuntur rite enlarged at the expense of the trilogy of procedure. VI. Thomas v. P., §§ 347-354. Essentials of coram judice proceedings. A cause of action arises from the principles of the prescriptive Constitution; a cause of action must be presented to a court by the right record. "What ought to be of record must be proved by record and by the right record. ' ' The functions of pleading. Elements of "Due process of law." Hope, §§ 438-442. Jurisdic- tional facts must exist in reality, and also properly appear. Base v. Himely, •4 Cranch, 269 (Marshall, C. J.), quoted and followed, 107 111. 527. Fabula non judicium. VII. O'Brien v. P., §355. From two facts a coram judice proceeding is presumed: (1) Jurisdiction of the person; (2) A judgment entry which the court could or might make under the general law. Pleadings not essential to confer juris- diction. See Thomas v. P., §§ 347-354; Hope, §§ 448-452. Omnia prwsumuntur rite enlarged in its operations, as in Balsewicz, § 346. 251 252 EQUITY IN PEOCEDUEE VIII. FranJclin Union No. 4, § 356. S.P. as 'Brien v. P., ante. IX. ijtoe V. Travis, § 357. Presumptions of regularity attend the judgments of a justice of tiie peace as they do superior courts proceeding according to the course of the common law. Omnia prcEsumuntur rite enlarged in its operation. X. Taylor v. Sprinkle, § 358. Conclusions of law are not suflScient pleading nor can they be made sufficient by legislative fiat. See §§ 315, 341, 356. S.P., Mallinckrodt (Mo.), §§ 497-504j Bliss Code PI. 437-442. There are necessities of procedure that cannot be abolished. Crockett v. Lee, 7 Wheat. 552, 526-527 (Marshall, C. J.). There are limitations of the Statute of Jeofails. Taylor; Mallinckrodt; Clark v. Dillon, 97 N. Y. 370; 1 Wm. Saun- ders, 228 N. 1, 85 English Eeprint, 244-253 ; Jackson v. Pesked, 1 M. & S. 234, 105 English Eeprint, 88, quoted Stephen's PI. 149, also 85 English Eeprint, 248 and supra, along with Bushton v. Aspinall (Mansfield), L.C. 5, 3 Gr. & Eud. There are immutable principles of procedure. Codes and Practice\ Acts reaffirm these principles. Omission of a material fact is the occasion of the rule that the general demurrer searches the whole record and attaches to the first fault. Collier, 1 Mo. 1; Sto. Eq. PI., §§ 10-28. XI. Tilden v. P., § 359. Eepugnant pleadings are void. This case criticised. Verba fortius accipiuntur contra proferentem estremely applied. XII. Bishop V. Busse, §§ 360-361. Singular and erratic decisions in Illinois, and like views of authors, digesters and compilers of books for that state. § 310. Illinois Is a Practice Act State.— In tlie first case of this state, Taylor v. Sprinkle,^ the construction of a statute arose, and the court decided that the legislature could not make general allegations — conclusions of law — a sufficient pleading. The necessities of procedure are the substantive rights of the state, which can neither be waived nor legislated away. At the beginning it was decided that there are limitations of legislative authority interfering with the necessities of courts. The statute in question provided that a plea of a note having been given for no consideration might be interposed. A defend- ant filed a plea in the language of the statute, but the court held this was insufiicient — that the facts must be pleaded. This strict rule is also followed in the criminal law.^ Accordingly, the court commenced to set bounds to the limits of legislative inter- ference.* In late cases more power has been conceded the legislature than formerly. This is evidenced by the manifest determination to uphold the Municipal Court Act. The most liberal views are expressed in the Illinois Law Review.* In these pages is advocated a breaking down of all barriers of the pre- scriptive constitution, a parting from all moorings of the past, 1 — (1819) Breese (Beecher's Ed. 1877) 1, note; see also Cornelius, Pool, Brad- shaw and Sims, id., Swain, 2 Scam. 505; Vallandingham, 17 111. 25; Parks, 22 111. 522 (general allegations insufficient). 2— C. V. Bean, L.C. 226, 3 Gr. & Eud. ; U. S. v. Cruikshank, L.C. 232, 3 Gr. & Eud. 3— See also Bates v. Bulkley, L.C. 225, 3 Gr. & Eud.; Vallandingham, 17 111. 25; Smalley, 19 111. 207; Huntsman v. S., L.C. 231, 3 Gr. & Eud. 4—4 111. Law Eev. 174-194; 284-289, Oct., Nov., 1909, cases cited. ILLUSTRATIVE CASES 253 and an approval of experimenting upon new and untrodden ways. The authorities upon which the author relies are Illinois cases, statutes, Ames' Code Cases and the Encyclopwdia of Pleading and Practice. § 311. General Observations on Illinois.— From 500 books no settled definition of pleadings has been agreed upon ; no two lawyers will pick from these books the same definition of plead- ings, nor of the mandatory (common law) and statutory (bill of exceptions) records. Among these books Puterbaugh's Com- mon Law Pleading and Practice and his work on Chancery may be cited as altogether the most practical and instructive. But even in Puterbaugh pleadings are defined agreeably to the defini- tions of Chitty, of Stephen and Gould, which latter works are widely cited and used. Because of the little, narrow visioned and insufiScient definitions of pleadings and a jumbled use of the mandatory and statutory records from Illinois books, this defini- tion of pleadings cannot easily be picked, namely : ^'Pleadings are the juridical means of investing a court with jurisdiction of a' subject-matter to adjudicate it." After the above observations it is needless to say that the trilogy of procedure is not taught nor understood. This trilogy is from of old and lies at the base of a protecting and useful administration of the laws. This trilogy is : 1. De noa apparentibus et nan existentibus eadem est ratio : What is not juridically presented cannot be judicially considered. 2. Frustra probatur quod probatum non relevat: It is vain to prove what is not alleged. 3. Verba fortius accipiuntur contra proferentem: Every presumption is against a pleader. From this trilogy arises the leading rule of evidence, which, as we have often said, is : "What ought to be of record must be proved by record and by the right record." Upon this trilogy also depend the conserving principles of procedure, which ought ever to be kept in view and be vindicated by construction. Among these principles are: The necessities for appellate procedure; juridical matter necessary to resist objections upon collateral attack; also for res ad judicata pur- poses; also for due process of law; also to evince and satisfy the requirements of the division of state power; also for con- structive notice; also for the removal of causes from one court 254 EQUITY IN PEOCEDUKB to another and from state to federal courts; also for the justi- fication of officers exercising authority which can be conferred by records only. Any philosophical comprehension of procedure necessarily includes right notions of the pleadings, of the two records, the trilogy mentioned, the conserving principles of procedure and the interactions of all these matters one upon the other. These matters are so important that it seems well to indicate again where they are gathered, enumerated and defined. Therefore reference is made to §§ 83-123, Vol. 1, Hughes' Grounds and Rudiments of Law. Herein Illinois and other "Theory of the Case" states are mentioned.^ From the Illinois decisions, texts and reviews the general idea arises that there may be legislation in disregard of the trilogy of procedure. That whether or not a matter must be juridically presented in order to be judicially decided is purely a matter of legislative prescription ; this question is viewed as one of local or provincial law and in this way: That every tribe may have its own regulations and may employ a record or not, just as it pleases; and that the leading rule of evidence above quoted, namely, "What ought to he of record must he proved by record and by the right record," may be departed from at any time and on any occasion. Of course such views of fundamental requirements make every case a law unto itself. § 312. Neither the Maxims of Procedure Nor the Greatest Cases Eeaffikming These Ahe Cited or Discussed. — To illus- trate: The above trilogy is discussed in RusMon v. Aspinall, Bristow V. Wright and Dovaston v. Payne; and while these are rarely if ever cited in Illinois, still the principles they stand for have been applied to numberless cases. But it is equally true that of late years they have come to be frequently denied. Plainly speaking, the Illinois cases are not congruous ; they do not uni- formly respect fundamental law, nor cosmopolitan law.'^ As a class, her judges do not see beyond the Illinois reports. A decided tendency is manifest to cite local and provincial 5— See also, Theory of the Case; Variance and Bes Adjudicata, titles in the fourth volume of that work. 6 — All in Smith's Leading Cases, 8th edition. These cases are numbered respectively 5, 135 and 217, in Vol. 3, Grounds and Eudiments of Lav7, and they are there discussed, together with many other cases. 7— See § 361, post. ILLUSTEATIVE CASES 255 matter and cases. This tends to make the law local and pro- vincial. This fact is well illustrated in Chicago R. R. v. Hines.^ In this case it was held that if the demurrer to the statement of the cause of action was overruled, this interlocutory order operated as res adjudicata upon the demurrant; in other words, that he could not renew the grounds of the general demurrer in a motion in arrest of judgment. Such is a specimen of many cases relating to the mandatory record — that record required by the state for reasons of public policy. This decision breaches the first maxim of the trilogy above set out, and also the rule "^yhat ought to he of record must he proved hy record and hy the right record." This rule is a peremptory mandate of the state, by the state and for the state in its search for the state- ment of "a cause of action."® § 313. Nevertheless, the Conserving Principles of Procedure "VYeee Vindicated and Reasoned From at the Beginning of the Illinois Eepoets. — The mandatory record was required, and also that it must show facts constituting a "cause of action" or a defence. Res adjudicata was expressly named and provided for by construction of statute and by construction of plead- ings and records. Interest reipuhlicce ut sit finis litium (It is the welfare of the public that there be an end to litigation) ; also Nemo debet his vexari pro una et eadem causa (No one shall be twice vexed for the same cause) were quoted and instructively applied in Vallandingham v. Ryan.^° In this case there was also cited and approved Outram v. Morewood;^^ also Cromwell}^ It was also held that if no "cause of action" was presented by the pleadings then there was nothing before the court. In this case the trilogy of procedure was involved and was well comprehended ; so also in Fish v. Cleland}^ In Wahash R. R. v. 8—132 ni. 161, 166, 23 N.E. 1021. 9— Bushton v. Aspinwall, supra; Sto. Eq. PI. § 10; Fish v. Cleland, 33 111. 238, L.C. 12c, 3 Or. & Eud. (allegations essential to confer jurisdiction to hear and con- sider a cause; allegata et probata must correspond; Smalley, 19 111. 207; Waugh v. Bobbins, id. 182; Bush v. Connelly, id. 447; Lang v. Metzger, 206 111. 475, 478; Israel v. Eeynolds, 11 111. 218, L.C. 83, 3 Gr. & Eud. (a reply cannot be waived; an issue must appear in the right record to invest the court vpith jurisdiction to order or direct a trial thereof; without an issue there is nothing to try; it is abuse of authority to assume an issue when none is shown upon the right record) ; Kenealy, 241 111. 23-25. 10—17 111. 25; Kenealy, 241 111. 23. 11— L.C. 25, 3 Gr. & Bud. 12— L.C. 26, 3 Gr. & Bud. 13 33 I]]. 238, L.C. 12c, 3 Gr. & Bud. (pleadings are jurisdictional; there must be allegations, and 'allegata et probata must correspond). 356 EQUITY IN PEOCEDUEE Friedman^* the court reasoned the uses of the pleadings in the mandatory record for purposes of res adjudicata exactly as Mansfield did in Bristow v. WrigM}^ In the above cases it is a striking fact that the court defended the trilogy of procedure with great force and strictness, as it did also the rule "What ought to be of record must be proved by record and by the right record."^® § 314. Procedure Has Its Philosophy.— A system of proce- dure well reasoned from the division of state power, due process of law and res adjudicata is very different from a system, reasoned from the wishes, relations, conduct and consent of the parties only. In the former all of the conserving principles are respected. The requirements of res adjudicata are reasoned to and from. Res adjudicata has fourteen rules,^^ and the first one of these rules is "that the proceedings must he coram judice." For this reason the proceedings must be evinced by the manda- tory record and in accordance with the rule "What ought to be of record must be proved by record and by the right record." Eespect for these rules is respect for the trilogy of procedure and this trilogy is the north star and the "pointers" in every protecting system. Wherever the state — the public — third per- sons — are interested or are silent parties the trilogy of proce- dure must be respected. It may be said this trilogy is that of strict construction. But relating to matters that affect the litigating parties only, there the trilogy of canons of liberal construction applies. This trilogy is: 1. Consensus tollit errorem : Acquiescence in error obviates its effect. 2. Omnia prwsumuntur rite et solemniter esse acta: All acts are presumed to be rightly, regularly and validly done. 3. Zft res magis valeat quam pereat: It is better to conserve than to destroy. 14^L.C. 136, 3 Gr. & Eud. 15 — L.C. 135, 3 Gr. & Eud. Same point in Bristow and in Gridley v. Blooming- ton, 68 111. 49. In Guedel v. P., 43 111. 226, L.C. 74a, 3 Gr. & Eud., the court was as strict as in the Wabash and Gridley cases, supra (indictment for ' ' clubbing to death with a gun" is a different crime from "shooting with a gun.") See eases: Guedel, 74o, 3 Gr. & Eud. 16— Planing Mill Co. v. Chicago, 56 lU. 304, L.C. 2d, 3 Gr. & Eud.; Mailers v. Whittier Machine Co., 170 lU. 434 (mandatory and statutory records are different records for different purposes and one cannot be used for the other; the mandatory record cannot be aided or patched out by the statutory record) ; Hitchcock v. Haight, 7 111. 604, L.C. 12, 3 Gr. & Eud. (a verdict will not aid an immaterial issue; this is substance and not formal error; a motion in arrest will lie to omission of sub- stance; this cannot be waived); Smalley, 19 111. 207: Cases. 17—4 Gr. & Bud. of Law. ILLiUSTEATIVE CASES 257 From the above it may be seen that two cannot by compact or conduct bind a third. The third party may forever appear and say Res inter alios acta, or Non hcec in foedera veni (I did not come into this compact) ; or Quod ah initio non valet intractu temporis non convalescit (That which was void in the beginning •cannot be cured by waiver, nor lapse of time)/* The public — the third party — the state^the crown — includes all the people ; for the silent third party the amicus curice may •ever speak. A fortiori either party named upon the record may forever speak or object to substantial defects." Looking at the Chicago Municipal Court Act, and at many of the late cases, it is manifest that the notion is abroad that the irilogy of liberal construction, supra, can be given a much larger range and operation than was accorded it by the Eoman, Nor- man, English, Federal and best state decisions. To do that is to remove the landmarks of the mandatory record which is on the dividing line between a constitutionalism and an absolutism. Enlargement of the province of the trilogy of liberal construc- tion is necessarily an encroachment upon the trilogy of proce- dure. And such change is a grave attach upon the prescriptive constitution. This constitution was defended by the first case decided in Illinois, Taylor v. 8prinkle.^° In this connection •every Illinois student should read § 182, Endlich on Statutes. Herein are indicated limitations of legislative power to inter- fere with procedure.^'^ ' § 315. Taylor v. Sprinkle, Observations On.— At this junc- ture it seems well to repeat that in Taylor v. Sprinhle"^^ the court commenced limiting the legislature. And yet, at the pres- •ent time, legislators and professors in famous universities seem imbued with the belief that an individualized system of proce- dure can be established for Illinois ; a system that will stand on a little narrow visioned definition of pleadings, which is, to give "the adverse side notice"; a definition which never looks "beyond the parties themselves and the court of original juris- 18_StorT's Eq. PI., § 10; Vallandingham, supra; Mailers, supra. 19— Cf. Chicago E. E. v. Hioes, 132 111. 161, 166; 4 111. Law Eev. 174-194; 284- 289; Smalley, 19 111. 207: Cases. 20— Also in Langabier v. E. E., 64 111. 343; also m P. v. Turner, 55 111. 280, cases numbered 174a and 252, 3 Gr. & Eud. and cases cited therewith. 2l_See also, Indianapolis E. E. v. Horst, 93 U.S. 291, L.C. 223, 3 Gr. & Eud., and cases cited. 22— See §§ 341, also 47, 68, 119, et seq. 358 EQUITY IN PEOCEDTJEE diction.^^ Certainly the discussions thereof do not include the conserving principles of procedure, which, as we have seen,, were earlier looked upon as beacon lights by the same court, and indeed have been followed by it in many cases since. Here it seems well to ask whether these beacon lights can be changed, and what has been the effect of the attempted change. Whether or not the state shall be a party in procedure de- pends upon respect for the trilogy of procedure. Upon this depends what the court has quoted and construed for.^* § 316. Record Is a Constitutional Implication.— The means of reviewing a judgment of the highest court of a state in the Supreme Court of the United States depends upon a sufficient record. Accordingly this record is an implication of the supreme law of the land; or, in other words, it is a constitutional implication.^^ The removal of a cause from one court to another, and from the state courts into the federal courts depends upon a sufficient record, so that again this necessary record appears as an impli- cation of the supreme law of the land.^^ § 317. The Operation of the Supreme Law of the Land Depends Upon a Eecokd and, or Couese, Upon a Certain Eecoed. — Herefrom arise rules of certainty which cannot be dispensed with and which state power cannot abolish. There is a record of certainty that in the nature of the thing must be an irreducible minimum. The 'federal requirements for this may be gathered from Campbell v. Porter (one may demur to his own pleading and make the first objection thereto in the appellate court). § 318. Essential Facts Must Be Stated to Constitute a Cause OF AcTiON.^^ — This is expressly required by the code. The right to remove a cause depends upon the facts presented in the statement of the cause of action in the right record. A reply will not aid a complaint,^* nor will an answer.'^* 23 — As to this see 4 111. Law Eev., supra. 24— Vallandingham, 17 111. 25; Bates, L.C. 225, 3 Gr. & Eud.; Kenealy, 241 TU. 23, 25, § 342. > J. 25— §§ 87-88, 1 Gr. & Eud. 26— §§ 96-97, 1 Gr. & Eud. 27 — TJ. S. V. Cruikshank; Slacum v. Pomery, 6 Cranch 221 (the ground of the- general demurrer cannot be waived;) Smalley, 19 111. 207: Cases. These are excel- lent code cases. § 47, ante; Muuday. 28—177 U. S. 78. 29 — Andrews v. Lynch, 27 Mo. 167. ILLUSTEATIVE CASES 359 Accordingly appears the fact that not only is the state a party in procedure but the federal government also is a silent party. So in America we not only have one Rome but we have two Eomes. In the light of these facts the Illinois jurisprudent should carefully read 4 Illinois Law Review, pp. 174-194, also 284-289, and consider the faulty definition of pleadings and the code of provisions commended. § 319. Codes Can Only Reform Old Systems; Old Principles Can Not Be Changed. — The student is duped if he can be led to think that his local establishment can disregard fundamental requirements, and the requirements of the supreme law of the land. By higher laws than these the Municipal Court Act of Chicago must yet be judged. The success of this act has been acclaimed all over the land, when at the same time the greatest opposition to it is found in Chicago. It is enough to say that any establishment that practically excludes the state as a party and denies a sufficient record to support the conserving prin- ciples of procedure must meet condemnation in able courts of errors. The student is misled if he is lulled into the belief that the code has brought beneficent results, where it is denied by incompetent courts that the trilogy of procedure is reaffirmed in codes; such courts have emasculated the code by ignorant construction. § 320. Missouri Cases Violate Fundamental Law.— The judicial history of lULaois should not be doomed to parallel that of Missouri. The cases show that the condition in the latter state is a bar to the progress of the student. To illustrate : It is held in Missouri that the use of a motion for a new trial is to befog the court and mislead adverse counsel. This is the lan- guage: "We permit it — a motion for a new trial — to be as nnspecific as the ingenuity of a defeated lawyer can find lan- guage in which to conceal what he really means." Chapman v. Eneberg.^° Now the motion for a new trial being the basis of the assignment of errors, what can we think of the Chapman case? 30—95 Mo. Ap. 127. 260 EQUITY IN PROCEDURE Further look at this case: "It is demurrable to plead an in- strument sued on in hcec verha."^'^ Again consider this case : At a hearing in the supreme court (a court of errors) counsel asserted facts to exist not found iu the record. A respondent being present in court did not arise and interrupt the hearing by denying the irrelevant assertions. His having failed to make such unseemly and indecorous inter- ference was construed by the supreme court into an admission of the facts charged by opposing counsel and the facts so alleged were thereupon treated as record facts against the respondent.** It was a judge from Missouri who became a famous author and then wrote in a popular work ' ' that pleadings like any other notice to the adverse side could be waived"; that a case arose from the evidence and not from the pleadings ; that these could be dispensed with.^* Illinois has Puterbaugh to tie to. We know of no like work for Missouri. Yet all must admit that the administration of the laws is in a demoralized condition in both states, and indeed in a number of others. In Illinois the condi- tion may be judged from Harrow v. Grogan,^* Devine v. R. i?./^ Balsewicz v. R. R.,^^ and Rice v. Travis.^"' The learned professor above referred to seems to think the code states have made progress. This is true in Wisconsin, pos- sibly true in Indiana and Iowa, but Missouri is no better off than Illinois, except that the late decisions in Missouri trend to the trilogy of procedure, while Illinois is the reverse.** Dreadful confusion exists in every state where that trilogy is not under- stood and intelligently applied. Ignorance thereof leads to a Babel. In Missouri it is a marsh of bewilderment, except for those who have followed Napton in Andrews v. Lynch^^ Bar- 31 — Estes, 155 Mo. 577, 583 (theory of the case must be pleaded; conclusions). Contra, Bliss PI. 158. 32— S. V. Passe, 189 Mo. 532, 537. 33—2 Thomp. Trials, i§ 2310, 2311; And. Steph. PI., 2nd ed., § 230: cases. See Variance, 4 Gr. & Eud., Contra cases cited; Mallinckrodt, 169 Mo. 388, L.(\ 12a, 3 Gr. & Eud.; S. v. Muench (1909), 217 Mo. 124, 129 Am. St. 124, 137, 139; SmaUey; Hope V. Blair, 105 Mo. 85, 93, 24 Am. St. 366. 34—219 111. 288, 2 Gr. & Eud. gg- 23? jjj 278 36—240 111! 238^ 70 Cent. L. J. 5. 37—117 111. Ap. 644, reverses 216 111. 249 (Presumptions of regularity attach to inferior courts as they do to superior). 38— See S. v. Muench (1909), 217 Mo. 124, 129 Am. St. 536; Devine v. B. B. (1908, 111.). 39—27 Mo. 167. ILLUSTKATIVE CASES 261 clay in Rush v. Brown*" and in Davis v. Jacksonville,*^ and Sher- wood in Mallinchrodt, supra. It may be said that in the decisions of these three judges must be found the salt that will save the jurisprudence of a great state, if this can be done. So much for the code administered by intellects ignorant of earlier systems. Verily it has been "a grope in the dark."*^ § 321. Codes Must Be Construed by Fundamental Law.— It is due the Illinois jurisprudent plainly to tell him that any system he may establish must reSpect the trilogy last men- tioned and that he must distinguish between the matters that this trilogy relates to and those matters which the trilogy of liberal construction governs. The attempt to give Consensus tollit errorem a greater range in its operation than was assigned to it by the Eoman will wreck any system of jurisprudence. The Roman gave the code to the Caucasian of Europe, and Eome as a silent third party prescribed peremptory mandates. These cannot be disregarded in a government of laws. They are founded on reason, necessity and convenience. It is otherwise in Asian, African and supposed codes of some American states. § 322. Codes Not Understood, Nor Properly Construed.— In the discussions referred to by the learned professors it is assumed that code states have made certain progress. But this is quite debatable if New York, Indiana, Missouri, Colorado and Iowa be meant.*^ No doubt substantial progress has been made in California and Wisconsin and some other code states. David Dudley Field, a statesman and jurist, drafted the code of New York, A. D. 1848, a copy of which was borrowed by Missouri in 1849. Soon thereafter California adopted it. This state was fortunate in having Stephen J. Field to expound its code from 1856 to 1863, when he was appointed to the federal bench. Like his brother, who drafted the code, he understood it. A half dozen of his decisions are worth more than New York's 1000 volumes and Missouri's 400 of confusion. To sustain this view compare the first code case, Biddle v. Boyce, (Mo.) with Green v. Palmer** 40—101 Mo. 486. 41—126 Mo. 69, 75, 78. 42 — Bliss Code PI. 141. 43—34 Am. Bar Assn. Hep. 787, 832-838; Cent. L. J. 294-296; 311-314; 402-407; 44—15 Cal. 411, 79 Am. Dec. 492, L.C. 90, 3 Gr. & End. 26,2 EQUITY IN PEOCEDTJEE The latter sustains the trilogy of procedure, the former is all confusion. § 323. Unification, Simplification and Expedition Is the Genius of a Code. — Its system is, one juridical document, one statement, one forum and one relief. But all of these are reasoned from the trilogy of procedure and its conserving prin- ciples. No good code work omits these matters; a pad of jargon or of repetition cannot hest instruct. § 324. The General Issue Is Inimical to a Code.— Pleadings, inter alia, are to limit issues and to narrow proof s.*° Upon this point the California and the Wisconsin cases should be con- sulted; these are from the best code states. This will appear from eases like Dickson v. Cole*^ § 325. Codes Adopt Equity Principles.— The general allega- tion, the general denial and the general issue are inimical to code procedure, which is governed by the rationale of equity proce- dure."*^ The views expressed to the contrary are not justified. Such views are calculated to excite prejudice against any system that harbors the general issue ; to this cause can be laid the re- sults in Balsetvicz v. R. R.*^ The observations of the general issue in the 4 III. Law Rev. 87-94 are well justified. In the "theory of the case" code states as countenanced and advocated by Judge Seymour D. Thompson and Judge Elliot (Elliot's Appellate Procedure), enough decisions can be picked to make long rows of books, all of them disregarding the heart and vitals of procedure, namely, its trilogy, also the conserving principles referred to and the interactions of all these matters upon the due administration of the laws.*® § 325a, Constitutional Procedure, Principles Of.— Any work on evidence, pleading and practice, or any kind of procedure, Eoman, English, the common law, civil or criminal, equity, the code, the federal or the practice act, or the English Judicature Act, should at least introduce and illustrate the essentials referred to, which constitute the core of that procedure indis- 45— Bliss PI., § 138. 46 — 34 Wis. 621, L.C. 34, 3 Gr. & Euil., and ten following cases, id. See also Doll V. Good; Higgins v. Wortell (Cal.) and titles Admissions and Denials, 2 Gr. & Bud. 47_See Codes, 2 Gr. & Bud. ; Bliss, Code PI. 138, 141. 48—240 111- 238. 49—1 Gr. & End., §§ 83-123. ILLUSTEATIVE CASES 263 pensable for a constitutionalism. In other words, the procedure of a constitutionalism should be introduced and explained, and then the jurisprudent can mark out his own career. But it ought to be dinned until he looks and understands that the study of procedure is a study of government. There should be introduced to him the trilogy of procedure, the familiar maxim and its translation, and the prominent cases illustrating the application of the maxim or the general principle. This is easily done for any species of procedure or for any state. It was this kind of teaching that the American Bar Association accredited to the schools in 1879.^° This trilogy can be picked out of § 10, Story's Equity Pleading f^ also from Paul's Trial in the Acts of the Apostles; also Broom's Maxims; also Smith's Leading Cases; also in the Field Code; also in Illinois, as we shall hereafter show. This instruction will involve the true definition of. pleadings, which is : "Pleadings are the juridical means of investing a court with jurisdiction of a subject-matter to adjudicate it. ' ' With no more instruction than the above, no student can be "swamped" in the quicksands of the long and unending rows of "chaff pads" that are prepared by young and nimble hands for the book factories. From the "theory of the case" states the conflicting cases can be picked, stacked and counted in multi- tudes ; and these decisions have passed beyond human capacity. As to this condition, lawyers should look and at last speak. § 326. Universal, Not Local Principles Govern Procedure. — From the foregoing it may be perceived there are orient peaks of procedure, which are its datum posts; that they are cosmo- politan; that they are universal. Teaching procedure without reference to these peaks is like teaching theology without regard to the Ten Commandments and the Golden Eule. § 327. Procedure Is a Judicial Question, Not a Legislative.— The decisions of the "theory of the case" states show that the universal principles of procedure are kept in haze and mysti- fication. This largely results from overemphasizing the power of legislatures to regulate procedure, which is purely a judicial affair. The English Judicature Act invested the supreme court 50 See 4 111. Law Review, 87-94 (June, 1909). ei— Quoted title Story, 4 Gr. & Eud. 26i EQUITY IN PEOCEDUEE of judicature with power to enact ordinances of practice. Con- necticut alone has followed the English plan. If the supreme court of Illinois prescribed rules of procedure for all the courts, manifestly beneficent results would follow. The dreadful con- dition in the "theory of the case" states should be avoided; e. g., look at Missouri.^^ § 328. "Theory of the Case," Observations On.— The "trouble in Missouri began with early statutes providing that no error should be reviewed by the supreme court which was not specified in a motion in arrest of judgment. Thus the range of Consensus tollit errorem was enlarged, and this impaired the trilogy of procedure, because it has been held that under this statute all errors of substance could be waived or consented away. Consequently the errorist and empiricist was given full swing, and there followed such texts as 2 Thompson's Trials, §§ 2310, 2311, already referred to.^* Many Missouri decisions can be found to sustain this text. On the other hand, the ablest judges denounced it, as in Andrews V. Lynch, Rush v. Brown, and the Mallinckrodt cases already cited. Missouri has lacked true definitions of the mandatory and of the statutory records, and of pleadings. The result is Babel. And so it is in Illinois and some other states.^* Such are the consequences of disregarding the rule, "What ought to he of record must he proved by record and by the right record." In Missouri the fundamental principles of the code, which are but the trilogy of procedure, have been argued up and down and all around, again and again, as was Shelley's Case and the Sunday laws. These principles have been silted over by judicial decisions not founded on true principles, until they are almost wholly obscured. They have been covered by "useless grists of profuse jargon," as have been the Duchess of Kingston's Case, Crepps v. Burden, Cumber v. Wane, Cutter v. Powell, and "the Earl of Oxford's Case, Coke's three degrees of certainty, and Chitty's three kinds of aider. "Whether or not organic law is better understood in Illinois is easily determined from an. examination of a few cases. 52— See title Missouri, 4 Gr. & Bud.; Bliss, Code PI., § 141. 53— And. Staph. PI. 230: Cases, 2d ed. 54 — See Theory of the Case, 4 Gr. & Eud., also Variance, id. ILLUSTEATIVE CASES 265 § 328a. Statute of Jeofails Has Caused .Confusion.— It is due to note that disturbances in Illinois often arise from construction of the statute of amendments and jeofails (in Missouri these are generally called "the liberal provisions of our code"). Many judges have not comprehended the necessity for limitations of legislative authority to interfere with the necessities of the judiciary, or the constitutional implications of judicial power. It has not been clearly recognized that procedure arises from principles of the prescriptive constitution ; that from this source arise those principles that limit and control written constitu- tions and statutes. The Englishman understands this, but the American does not. § 329. Limitations of Statute of Jeofails.— After hundreds of fluctuating eases it was held in C. S A. R. R. v. Clausen^^ that the statutes of amendments and jeofails applied to formal matters only. Thus Consensus tollit errorem, (Acquiescence in error obviates its effect) was given the exact place that it had in Eome, England, the federal law and the best decisions of the states. Consequently it was held that the statutes in question added nothing whatever to the former law; that these were aflRrmative statutes. Of course this decision may be cited as a vindication of the trilogy of procedure in Illinois. For it always was the law that formal error was waived unless excepted to and properly presented to a court of errors for a review of the record. In Missouri the code was construed exactly to the same end.^" Accordingly, statutes affecting procedure are construed alike, in some cases, in both states. In other words, the principle ex- pressed from of old is upheld alike in both Illinois and in Missouri. In the Preface these matters are outlined. Here is a very important fact to be comprehended. From it will appear rules of substance which are universal rules in governments of protection. All congruous systems respect the matters of sub- stance alike. It is matter of substance that cannot be waived. Herefrom arises the rule that the ground of the general demurrer is never waived; that it may be first raised or renewed in the motion of arrest, and likewise and forever on collateral attack. V. Dillon 55—173 HI. 100, 103. 5g Andrews v. Lynch; Mallinckrodt, supra; Sidway, 163 Mo. 342, 373; Clark i'llon, 97 N. Y. 370. 266 EQUITY IN PKOCEDIJEE From these viewpoints may be perceived the reason why the study of procedure is the study of government. This fact is disclosed from a clear exposition of collateral attack. ^'^ From these cases the mandatory record will appear as a bulwark of all our rights and a shelter from judicial arbitrariness. Conse- quently there must be a record to bind the court ; herefrom arises the rule, A court is bound by its record; also, "What ought to be of record must be proved by record and by the right record." § 330. Immutable Principles of Jurisprudence.— There are three guiding stars of the first magnitude in the juridical heavens. These are general principles which may appear from varying standpoints — as evidence here, as pleading there, as practice yonder, and as construction over and beyond, wherein they appear as constitutional law. These principles are immu- table elements of jurisprudence ; they are embedded in the pre- scriptive constitution, the greatest gift of antiquity to posterity. They are necessary and universal principles, however variantly expressed; they are the substance; how they are expressed is mere form. As the law depends upon substance and not form, these principles have always held a first place with the juris- prudent throughout all ages. They are essential for judicial operation in a constitutionalism; they are on the separating line between a constitutionalism and an absolutism. § 331. A Protecting Judiciary Must Have a Record, and Must Eespect That Eecoed. — Hence the rule is that a court is bound by its record. But for this rule everybody might be condemned unheard, and everything might be sequestered. A record is a bulwark against tyranny. Audi alteram partem. would not stand as a barrier of protection and as a shielding principle but for a record. This fact is clearly illustrated in Windsor v. McVeigh (U. S.). Herein are discussed the elements of ' ' due process of law, ' ' and therefor the mandatory record as a necessity. To understand many of the highest flights of oratory and of poetry, one must be familiar with Greek and Roman mythol- ogy ; and similarly it is in law : one must know the prescriptive constitution in order to understand cases like Windsor v. Mc- 57— Windsor v. McVeigh, L.C. 1, 3 Gr. & Bud; IT. S. v. Cruikshank (criminal); Slacum V. Pomery, 6 Cranch 221 (civil); Haskell, 31 Mo. 437 (code). ILLUSTEATIVE CASES 267 Yeigh, and what great judges mean by the phrase "due process of la-n-." One sees in a pen that with which he can make only a mark ; another sees in it an instrument with which he can write the declaration of the rights of man. § 332. The Prescriptive Constitution Is Organic Law.— The lawyer who knows the principles of the prescriptive consti- tution reads written constitutions, statutes and decisions dif- ferently than the lawyer ignorant of that ancient organic law. This law cost the Englishman his battles in the reformations, his two revolutions, his misfortunes from Coke's triumphs over Bacon, his disagreements with Mansfield ; in all, three centuries of delay and trouble. The Englishman in America has had additionally his Anglo-American wars, his dreadful experiences with negro slavery, the demands for codes, his experiments with the case system, and the teaching that each jurisdiction has created a body of law unto itself. Now the Englishman sees the leading subjects of the law arising from the prescriptive constitution, while the American essays to believe that these subjects are f oimded on his written constitutions and his ' ' consti- tutional statutes"; that the former is paramount law, and that the latter, if constitutional, is valid, however "immoral, blas- phemous, unchristian and unreasonable" they may be. Neces- sarily such teaching has befogged and delayed. The dean of Harvard Law School now informs us that the English bench, bar and books are the best ; if so, why are not these regarded as standard ? Why are not they cited more widely ? The foregoing facts ought to be clearly illustrated ; a demon- stration of these facts would do much to clear the haze that surrounds the American jurisprudent. Such a demonstration can be made equally effective from almost any state. It might well be made from Missouri, the first code state in the Missis- sippi valley, which gave the first American code decision.^* But illustration from a code state leaves open the view that the code is responsible for the condition. Consequently it seems better to select illustrations from a so-called common-law state, and for this perhaps the illustration should be made from IHinois, which, like Mississippi, may well be called a practice 58— Biddle v. Boyce (1850). 2G8 EQUITY IX PROCEDUEE act state. However, Illinois citations justify the conclusion that it is a Coke, Blackstone, Chitty, Stephen's and Gould's Pleadings state. But this is equally true in Missouri and Indi- ana ; the fact is, Chitty and Stephen are widely cited in all states ; and it is equally true that diverse conclusions are drawn there- from. These supposed great works are better understood than the instructions Festus gave the Scribes and Pharisees in Paul's trial (wherein these words, "concerning the crime laid against him," involve the trilogy of procedure), or § 10, Story's Equity Pleading, or Rushton v. Aspinall, or Bristow v. Wright, or Dovaston v. Payne, all in Smith's Leading Cases, 8th edition. Not one case in thousands cites Broom's Maxims. And, after all, the spectacle is presented of great states following the same authors, and these states widely apart. The fact is, the laws are tribal, and if a lawyer crosses his state line he leaves his profession behind; and at home his profession is drudgery in a treadmill, looking through unending lines of constantly changing statutes, digests and cyclopedias and the endless inpour of annotated cases. To put it in the popular vernacular, the lawyer is ' ' swamped. ' ' From the mani- fest condition it should be plainly stated that the philosophy of the law cannot be learned from long lines of "Space fillers" and "chaff pads," the output of hundreds of hands in book factories. The leading subjects of the law have orient peaks which can be named, brought into view, and so impressed as to leave a definite impression upon the intellect. After this all reckon- ings can be from these peaks, these ancient landmarks that have bounded and defined the law in all countries and in all ages. There are great principles that are cosmopolitan law, and that are above and beyond the power of governments to change. These principles can be named in any generation for all genera- tions to come. They should be named for this generation. The possibility of naming some of these principles will be demon- strated. To illustrate, we shall tabulate the three great principles referred to and set therewith enough matter to indicate the universality and paramount importance of those principles ; also those principles which are secondary in importance and which are not the safeguards of the state's interests. ILLUSTEATIVE CASES 369 § 333. Accordingly There Are Two Trilogies to Impress Upon the Phactitionee. — I. The trilogy of procedure or of strict construction, which is : 1. Ve non apparentiius et non existentibus eadem est ratio : What is not juridically presented cannot be judicially decided. There must be a record and a court is bound by its record. Sto. Eq. PI., § 10, 4 Gr. & Eud., title Story; Camphell v. Porter, 162 U. S. 478, L.C. 2, 3 Gr. & Kud. ; U. S. u. CruikshanJc, 92 U. S. 542, L.C. 232, 3 Gr. & End.; Vallandingham , 17 111. 25; Smalley, 19 111. 207; Fish, 33 111. 238, L.C. 12c, 3 Gr. & Eud. ; Adams, 158 111. 190, 2 Gr. & Eud. ; Bushton V. Aspinall, Smith's Lead. Cas., 8th ed., L.C. 5, 3 Gr. & Eud.; Slacum, 6 Cranch (IT. S.) 221, (MarshaU, C. J.) ; Fletcher v. Root, 240 111. 429; BecUenherg, 232 lU. 120 (overruling earlier cases) ; Hice v. Travis, 117 111. Ap. 644, reverses 216 111. 249. (The latter denied Crogate's Case, also Crepps v. Burden, Smith's Lead. Cases, L.C. 113, 3 Gr. & Eud.). Cf. Doddridge, 222 Mo. 146; S.P., Crepps V. Vurden. ". Fmstra prohatur quod protatum non relevat: It is vain to prove what is not alleged. See authorities, supra. The evidence must correspond vpith the allega- tions and be confined to the point in issue. 1 Gr. Ev. Si, 63, 65 ; Bristow v. Wright, Smith 's Lead. Cas., 8th ed., L.C. 135, 3 Gr. & Eud. et seq. 3 Veria fortius accipiuntur contra proferentem : Every presumption is against a pleader. Dovaston v. Payne, Smith 's Lead. Cas. 8th ed., L.C. 217, 3 Gr. & Eud. ; Story's Eq. PI. 665; U. S. v. Linn, 1 How. (U. S.) 104; U. S. v. CruilcshanTc, supra; 196 U. S. 395; Davenport, 2 HI. 315, L.C. 2f, 3 Gr. & Eud.; Mailers, 170 111. 434 (biU of exceptions). Codes reaffirm all these principles. See Codes, 2 Gr. & Eud. ; Malli-nclcrodt, 169 Mo. 388, L.C. 12a, 3 Gr. & Eud.; Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492, L.C. 90, 3 Gr. & Eud.; S. v. Muench (1909), 217 Mo. 124, 129 Am. St. 536- 546: Cases. From the above arises the rule, ' ' What ought to be of record must be proved by record and by the right record. ' ' Also, this definition of pleadings : "Pleadings are the juridical means of investing a court with jurisdiction of a subject-matter to adjudicate it." §§ 163, 273, 1 Gr. & Eud.; Fletcher, 240, 111. 429. CJognates of this trilogy axe: 1. Expressio unius est exclusio alterius: The express mention of one thing is to th© exclusion of all others. Marbury v. Madison, L.C. 142, 3 Gr. & Eud., et seq. 2. Allegata et probata must correspond. Bristow v. Wright, L.C. 135, et seq. A. recovery must be secundum allegata et probata. Fish, 12c, 3 Gr. & Eud. See Dorn V. Farr, 2 Gr. & Eud. ; Hansom, 140 lU. 626, citing Mo. cases (Variances can. be waived). 3. Quod ab initio non valet in tractu temporis non convalescit: That which was originally void does not by lapse of time or by waiver become valid. Windsor v. McVeigh, L.C. 1, 3 Gr. & Bud. ; 69 Cent. L. J. 443-447 ; BecUenberg, 232 111. 120. 4. Interest reipublicw ut sit finis litium: It is the welfare of the public that there be an end of litigation. Mariott v. Hampton, Smith's Lead. Cas., 4 Gr. & Eud. See Ees Adjudicata and its requirements, §§ 171-200, 1 Gr. & Eud.; also the rules of this subject gathered, 4 Gr. & Eud. See also Chap. 1, §§ 83-123, 1 Gr. & Eud.: The Conserving Principles of Procedure. 5. Nemo debet bis vexari pro una et eadem causa : No man shall be twice vexed for one and the same cause. This maxim is a part of the former one. Vallanding- ham, 17 m. 25; Kenealy, 241 111. 23. 6. All that could or might be determined is presumed to have been in order to sustaiu an estoppel by judgment. Vt res magis valeat quam pereat. 7 The facts must have been necessary and properly pleaded, and necessarily passed on or settled in order to sustain estoppel by verdict. "Estoppels are odiou"!"; Verba fortius. A fact admitted by the pleadings should conclude one who failed 270 EQUITY IN PROCEDUES to deny. AXlegans contraria non est audiendus. Accordingly appears the im- portance of the allegation, the admission, the denial, the issue and the proper disposition of all these matters to constitute the coram judice proceeding to sus- tain the estoppel "by verdict, as it is called. Outram v. Morewood and Cromwell V. County of Sac are the leading expositions of estoppel by verdict. Vallanding- ham, 17 111. 25; Kenealy, 241 111. 23, 24. 8. Conclusions of law, or conclusions of fact, will not sustain estoppels hy judgment, nor estoppel by verdict. Hence it is that conclusions of law or of fact are insuf- ficient pleadings and are held void and of no effect whatever. They cannot be aided by waiver. U. S. v. CruilcshanTc, L.C. 232, 3 Gr. & Eud. ; J 'Anson v. Stuart, Smith 's Lead. Cas., L.C. 91, 3 Gr. & Bud. 9. Consent will not confer jurisdiction of subject-matter. Sto. Eq. PI., Sec. 10; Thomas v. Board, L.C. 10a, 3 Gr. & Eud.; People's Bank v. Calhoun, 102 U. S. 260-261, L.C. 12d, 3 Gr. & Eud.; Thomas v. P., 107 lU. 517, 47 Am. Eep. 458; Fletcher v. Boot, 241 111. 429. § 334. The Trilogy of Procedure or of Strict Construction Applies to the Mandatory Recokd. — This record is a necessity in the due administration of the laws ; upon this record depend the conserving principles of procedure ; this is the jurisdictional record that is required from public policy, and which cannot be dispensed with. Upon it are stated the jurisdictional facts, the "cause of action," or the "facts constituting the defence" — the substance upon which authority to proceed and adjudicate must appear from the mandatory record. The state, the third party to the judgment contract, demands this. It cannot be dispensed with. By and upon this record depends the validity of the pro- ceedings ; these must stand certain tests to pass as coram judice. Jurisdictional facts are a public policy concern. § 335. II. The Trilogy of Liberal Construction: 1. Consensus tollit errorem: The acquiescence in error obviates its effect. L.C.'s 290a-299, 3 Gr. & Eud. The matter this maxim governs is not substance but is formal matter, or rather which concerns two only. 2. Omnia prcesumuntur rite et solemniter esse acta: All acts are presumed right- fully, regularly and validly done. Crepps v. Burden, L.C. 113, 3 Gr. & Eud., et seq. 3. lit res magis valeat quam pereat: It is better to conserve than to destroy. M'Cul- loch V. Maryland, L.C. 147, 3 Gr. & Eud. Chap. XIV, ante. The distinctions between superior and inferior courts depend upon the presumption of regularity. In Illinois,' this presumption applies to inferior courts exactly as it does to superior. Bice v. Travis, 216 111. 249, reversing S. C. 117 lU. Ap. 664, 4 Gr. & Eud., which cited and followed Crogate's Case. In Eice the juris- dictional fact of value was suflScient, it being stated in the affidavit of replevin. But this was not the right record. Crepps v. Burden, L.C. 113, 3 Gr. & Eud., ct seq., §§ 131-133, ante. § 335a. The Trilogy of Liberal Construction Also Has Its Cognates ; Among These Are : 1. Expressio eorum quce tacite insunt nihil operatur: Things implied need not be mentioned. M'Culloch v. Maryland, L.C. 147, 3 Gr. & Eud. 2. Concordare leges legibus est optimus interpretandi modus: To make laws agree with laws is the best mode of interpreting them. L.C. 'a 215-232, 3 Gr. & Eud • S. ex rel. Benson v. Sheppard, 4 Gr. & Eud. ' ' ILLUSTRATIVE CASES 271 3. Lex non exacte definit, sed arbitrio ioni viri permittit : There is always something left to the judgment of a wise and good man. 4 Gr. & Eud. 4. Probatis extremis prcesumuntur media: The extremes being proved, the inter- mediates are presumed. Quinlan, 205 TJ. S. 504. 5. Verba inteniione dehent inservire: "Words are construed according to the inten- tion. Barron v. Baltimore, L.C. 241, 3 Gr. & Eud.; Soward v. Harris (once a mortga'ge always a mortgage.) § 336. "Interest Reipublicae Ut Sit Finis Litium' ' Is a Rule OF Public Policy. — And this dictates that a pleading as well as all of the record be sufficient to sustain the estoppels referred to. A record that will not sustain the estoppels is coram non judice. "The first rule of res ad judicata is, ' ' that the proceedings shall be coram judice?^ % 337. Pleadings and All of the Record That Is Necessary TO Eesist Objections Upon Collateral Attack Must Be Cee- TAiN. — Herefrom appears the significance of the general demur- rer and the motion in arrest of judgment. Those who view a record from these requirements see that record in an entirely different light from him who is untutored in the philosophy of Interest reipublicce, etc. A record viewed from the conserving principles of procedure®" is from a wide and broadened vision, Trhile a record viewed from the letter of statutes and constitu- tions and the "late case" only is quite another. A record satisfying the requirements of the trilogy of pro- cedure and of its conserving principles is necessary to constitute ihe coram judice proceeding in a government of protection-^^ Herefrom it may be stated as a postulate, that the study of procedure is the study of government. Why this proposition is true will appear from the attitude of the government or state as an implied and silent party in judicial proceedings. Herein lies a fact of the greatest significance, for the philosophy in- volved includes that matter which is substance, which is that matter required by public policy — Interest reipublicce ut sit finis litium, on the one hand, and that matter which is formal and of no concern to the state, but concerns only the parties named upon the record. One of the leading questions in procedure is, what is matter of substance and what is formal or waivable :matter; what are the state's substantive rights? The trilogy of procedure applies to matter of substance, while the trilogy 59 — Kingston's Case, Smith's Lead. Gas.; 69 Cent. L.J. 443-447. 60— §§ 83-123, 1 Gr. & Rud. 61—69 Cent. L.J. 443-447. 2:2 EQUITY IN rEOCEDUEE of liberal construction applies to formal or waivable matter^ whicli may be defined as adjective law. Substance is what the state demands ; formal matter is that matter which the parties named upon the record may waive, or about which they may contract. §338. Construction for Two Parties Is Different than for Three. — The trUogy of liberal construction applies to those mat- ters whereof neither the state nor third parties have any inter- est. Such matters may be waived. Here the substantial rights of the state are not involved. The trilogy of strict construction applies to the mandatory record and its essentials; the trilogy of liberal construction applies to the matter of the statutory record; this matter con- cerns only the parties named upon the record, and of course they can waive or insist upon this matter, as they see fit. They may waive it by failing to argue it or assign error thereon, or to make a motion for a new trial, or promptly to object and except with precision and certainty, and not too generally and broadly.®^ § 339. The Jurisdictional Record Is Strictly Construed.— As stated above, the statutory record can be waived, but other considerations entirely attend the matters of the mandatory record. These cannot be waived. The state requires this record ; the state is a silent third party. Its rights — its equities — cannot be waived.^* The state may ever appear and say, Non hcec in foedera veni, to any and all claims of waiver of its interests or mandates for protection; among these are the means and requirements to keep the judiciary within certain and legitimate bounds. Hence the rule is, "A court is bound by its record"; consequently there must be a record and a certain record, for an uncertain record would be useless. The latter would be a useless shield against tyranny. To secure essential certainty the trilogy of strict construction applies. These views will find support in § 10, Story's Equity Pleading.®* Story's section is reaffirmed by codes, but in a variant language. The law looks 62 — L.C. 291-299, 3 Gr. & Bud. ; Consensus tollit errorem. ' 63 — Res inter alios acta; Alterum non Icedere. 64— See Story, 4 Gr. & Bud., also Fletcher v. Boot, 241 111. 429. ILLUSTRATIVE CASES 273 at substance and not form; substance and not form rules in equity, and wherever equitable rules are respected. § 340. Substance Essential to Satisfy the State's Require- MENTS. — It seems well to present a view from the angle of collateral attack before referring more minutely to res adjudi- cata and its requirements. Therefore we observe that a judg- ment is a contract, as contracts are classified. Into a judgment the original cause of action merges. In a judgment contract the state is a silent third party. In this form of contract the state has rights or equities ; and if in the formation of the judg- ment the rights and equities of the state are disregarded, then the state — the public — anyone — may appear, and for and on behalf of the state say in effect, Non Jicec in feeder a veni (I did not come into this compact), or. Res inter alios acta alteri nocere non debet (A transaction between two ought not to affect a third), or Alterum non Icedere (You should not injure another). This is what is called collateral attack, wherever the judgment is offered to prove title to property or an estoppel. To raise objec- tions upon collateral attack the record upon which the judgment or proceeding is founded must have the required substance. It is this that the general demurrer tests ; also, the motion in arrest of judgment searches the entire record and attaches to the first fault. For these tests the trilogy of procedure attends and ever affords a constant and fixed measure. There is no fluc- tuating construction of the record referred to, before judgment, at the trial and after judgment, as has been decided in Missouri, Illinois and other states. The welfare of the state is safeguarded at all times by the same fixed and uniform rules. There are many important rules that will naturally suggest themselves in views from the trilogy of procedure. From the foregoing this definition of pleadings is deducible : "Pleadings are the juridical means of investing a court with jurisdiction of a subject-matter to adjudicate it."®^ Pleadings also arise from convenience, certainty, necessity, and economies in the administration of justice. Pleadings are to limit issues and to narrow proofs."® This involves a con- sideration of the allegation, the admission, the denial, the issue, fi5 1 Gr. & Eud., §§ 83-123, 169, 273; see Illinois eases post. 66_Bliss Code PL 138. 374 EQUITY IN PEOCEDUEE and whence these shall appear, agreeably to the first rule of evidence, pleading and practice, which is, "What ought to be of record must be proved by record and by the right record." Missouri attempted to substitute the trilogy of liberal con- struction for the trilogy of procedure. This was done by an early statute, which provided that all errors of substance not presented in a motion in arrest of judgment could not after- ward be raised nor assigned for error in the Supreme Court, The effect of this was to enlarge the operation of Consensus tollit errorem, and this enlargement impinged upon the trilogy of procedure. And for results the philosophy of the manda- tory record no longer enlightened or guided. Illinois by various decisions also enlarged the operation of the last named maxim. One of these is Chicago R. R. v. Eines,^'' which held that if a general demurrer to the declaration was overruled, then no further objection could be made to any fatal defect in the declaration.^® The effect of such statutes and decisions is to destroy the congruity of general rules, and to make practitioners local and provincial, with their progress dependent on a lot of changeful statutes and like decisions. All of this unwise statesmanship is making the responsibilities of the lawyer beyond human capacity; it imposes untold labor upon him, makes his vocation unprofitable, and unfits him as a scholar, teacher and leader. Under such a condition fundamental principles are dwarfed or disrupted by statutes and by singular and erratic decisions which amount to nothing less than a Babel. The causes of this condition are justly laid to supreme courts.®^* Supreme courts owe the noblest profession something else than a bewilderment. It is due to say that very able decisions are found in both Missouri and Illinois, restraining the statutes of amendments and jeofails and the "liberal provisions of our code," as in C. & A. R. R. V. Clausen^^ and Andrews v. Lynch.'"' But in opposition to these can be cited numberless cases in each state. 67—132 III. 161, 166. 68— Stephens PI. 146-150 (Aider by pleading over § 116, ante). 68a— End. Stat., § 182. 69—173 111. 100, 103. 70—27 Mo. 167; Eush v. Brown, 101 Mo. 486; Davis v. JaekBonville, 126 Mo. 69, 78; Mallinckrodt, 169 Mo. 388, L.C. 12a, 3 Gr. & Eud. ILLUSTEATIVE CASES 275 § 341. Ptindamental Principles; Important Cases.— Illinois may be cited to the point that there must be a record for the conservation of the principles already mentioned. Among these principles is Interest reipuhlicce ut sit finis litium. For this principle the court spoke in Taylor v. Sprinkle;'''^ also in Bates v. BulUeyJ- A very clear and able decision is found in Valland- ingham v. Ryan."'^ Smalley''* is a truly instructive case. We have cited other notable cases, also made excerpts from cases, to illustrate how the immutable principles above referred to are upheld and vindicated in Illinois, notwithstanding its statutes of Amendments and Jeofails ; also many conflicting cases, such as Chicago R. R. v. Hines. From the cases quoted it can clearly be deduced that pleadings are to limit issues and to narrow proofs ; also that jurisdiction is conferred thereby.''^ Still the very air is pervaded with the belief that pleadings can be dispensed with ; that the necessities of a record are a question of legislative fiat. To sustain this view attention is directed to the operation of the Municipal Court Act for Chicago. But notwithstanding the clamor and acclaim of success, the fact remains that the representative lawyers of Chicago do not concede that the Municipal Court Act is harmonious with fundamental law. They know that the deci- sions above referred to stand for necessities in operating a useful and protecting judiciary. They are opposed to the establish- ment of courts that will introduce hostile and warring systems of procedure. Lawyers know that this is unwise statesmanship. The substitution of the trilogy of liberal construction for the trilogy of procedure cannot meet with the favor of a court that has so often vindicated first principles. Attention is next called to Illinois cases which may be cited to illustrate the application of the forfegoing principles, and to support the conclusions expressed ; these are as follows : § 342. (I.) Kenealy v. Glos, 241 111. 15, 26. "The general rule is, that (n. 23) a .iudgment or decree of a court of competent iurisflietion is conclusive between the parties and their privies, not only as to all matters that were, in fact, determined, but as to all matters which might have 71—1 HI. (Breeze) 1; |§ 315, 356, 473, poat 72—2 Gilm. 359, L.C. 225, 3 Gr. & Bud. 73—17 HI. 25. 74—19 HI. 207. 75_Thomas v. P., 107 111. 517; 47 Am. Eep. 458. 276 EQUITY IN PKOCEDUEE been determined in the proceeding as well. (^Thompson v. Bemenway, 218 III. 46.) This rule ig founded upon two maxims of the common law, one of which is that a man should not be twice vexed for the same cause, and the other is that it is for the public good that litigation should be terminated. There are two well defined branches of this rule : (a) Where the rule is invoked in respect to a cause of action which has been once finally determined on its merits by a court of competent jurisdiction. To sustain a plea under this branch of the rule it is necessary that there should be an identity of parties, of subject mat- ter and cause of^ action. (Baldwin v. Manecy, 204 111. 281.) Cb) "Where the rule 3s invoked in respect to some fact once in issue and authoritatively determined l)etween the same parties. The latter branch of the rule is generally designated as estoppel by a verdict. {Riverside Co. v. Townshend, 120 111. 9 ; Wright v. Grif- fey, 147 id. 496.) It is not essential to the application of the doctrine of estoppel by a verdict that there should be identity of cause of action or subject matter. The whole philosophy of the doctrine of res judicata may be summed up in the statement that a matter once decided, whether right or wrong, must remaip ■decided unless reversed in a direct proceeding for that purpose (p. 25) There was, therefore, no issue of fact before the court to which the ■evidence was pertinent. This evidence being incompetent it must be assumed that the court disregarded it." Kenealy v. Glos, 241 lU. 15-26. See Hope v. Blair, 105 Mo. 85, 93, 24 Am. St. 366, quoted post. § 343. (II.) Baldwin v. Hanecy, 204 HI. 281-290. ,(p. 288) "But where the second action between the same parties is upon a different claim or demand, the judgment in a prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. (Cromwell v. County of Sac, 94 TJ. S. 351; Riverside Co. v. Townshend, 120 111. 9.) It is conceded that both parties to this bill were parties defendant to the former action. That they were made joint de- fendants in that action makes no difference in the application of the doctrine of res judicata, if the decree in that case settled the adverse interests of the parties here in controversy. Harmon v. Auditor of Public Accounts, 123 111. 122." 5 Am. St. 502. "In our view of this case it is of little importance whether this action should be considered as being for the same claim or demand as that litigated in the case of Heile, receiver, against the defendant and others, or not. It is perfectly clear that the matters there in issue and finally adjudicated, involved the entire subject matter of the present action. "Where one action is pleaded in bar of another, as res judicata, there must generally be 'identity of parties, of sub- ject matter and of cause of action to constitute the first a bar to the second. "Where, however, some controlling fact or question material to the determination of both of the causes has been adjudicated in the former suit by a court of competent jurisdiction, the same fact or question is again at issue between the same parties, its adjudication in the first will, if properly presented, be conclusive of the same question in the latter suit, irrespective of whether the cause of action is the same in both suits or not. The latter is in some of the cases designated as estoppel by verdict.' (Wright v. Griffey, 147 111. 496, and •cases cited.) Certainly, the subject matter, — that is, the property conveyed and transferred to defendant by James Cash and his daughter — was in con- troversy in the former action. The receiver there claimed that property for the satisfaction of the worthy judgment. The defendant, Hanecy, by his answer, denied that claim, setting up his right thereto for the payment of an indebted- ness due the parties therein mentioned as well as himself, and attempted to protect the same claim now set up by the complainant under his agreement with her husband, — i. e., his liability to pay over to her the balance, if any, remain- ing in his hands after the satisfaction of the liabilities alleged to be due himself and the other attorneys mentioned. The plea shows that she also answered that bill, though it does not appear what she then claimed. Upon the issues formed in that case by the Heile bill and the defendant's (Hanecy 's) answer, the con- trolling fact or question to be determined by the court was who should have the property, and it did, as shown by the decree set up in the plea, fully and completely dispose of that question. The solemn adjudication and decree of the court in that case was, that of the property conveyed and transferred to the ILLUSTKATIVE CASES 377 defendant nothing whatever remained in his hands to be turned over or paid to this complainant. She being a party to that proceeding, must be held con- cluded and bound thereby." Baldwin v. Eanecy, 204 111. 281-290. § 344. (III.) Wright v. Griffey, 147 111. 496, 37 Am. St. 228,3Gr.&Eud. 28: Cases. (p. 499) "It is also insisted that the judgment in the common law actionals not conclusive, in this suit, of the matter there determined, because the parties are not identical. The point made is, that the Silver Islet Mining and Milling Company, being a party to this and not to the former proceeding, the judgment therein is not admissible to conclude the complainant. The contention is with- out merit. The company, by its answer, disclaimed any interest in the subject matter of the litigation, and stands indifferently between the parties, ready to conform to any decree the court may enter between the parties to the contro- versy. The only relief asked against it is to preserve the right of complainant in statu quo as against the defendant, Griffey, or by way of execution of the decree to be obtained against him. The company is, at best, but a nominal party. The entire litigation is between Wright and Griffey, and if they have litigated the same question or matters in another suit, in a court of competent jurisdiction, where they have (p. 500) been adjudicated, there is neither reason nor authority for holding that they are not concluded by such adjudication be- cause the complainant sees proper or deems it necessary to join a mere nominal party, having no interest in the subject matter of the litigation. Thomas v. Eoberts, 24 How. 33 ; Follanshee v. Wallcer, 74 Pa. St. 306, 13 Am. Eep. 671 ; Eitchen v. Camplell, 2 W. Blk. 779; Lawrence v. Vernon, 2 Sum. 20; Manna V. Eead, supra; Bigelow on Estoppel, (2d ed.) 46 et seq." "It remains, therefore, to be seen whether any matter material to the issue in the ■ common law suit was necessarily determined in that action, which, as evidence, is conclusive of the right to the relief sought by the complainant in his original bill." "Ordinarily the pleadings in the former suit, when introduced, will show what was within the issue tried and determined therein. A fact or question is no less at issue, or within the conclusive effect of the verdict and judgment, because the averments of the declaration and traverse are general. The difference between cases where the issue is thus general, and those where it is limited, by the plead- ing, to a single point, is, that the matter which appears by the mere inspection of the record in the latter, must in the former be established by evidence. Parol evidence of what occurred upon the former trial and what was actually decided is always admissible in such cases. It appears from the transcript of the pro- ceedings in the common law suit, that the declaration consisted of the common counts, with which was filed an account of various items, aggregating $4,317.67. Defendant filed the general issue, with notice of set-off, and asking for judgment over. The matters of set-off consisted of $5,000 received by the plaintiff from one Lamson for the use of the defendant, arising from the sale of 6,000 shares of Silver Islet Mining and Milling Company stock by plaiutiff and defendant, jointly, to Lamson; that plaintiff had received, in cash, $10,000 from Lamson, one-half of which, — that is, said sum (p. 501) of $5,000, — was due and owing by plaintiff to defendant, and the further sum of one-half of $8,333.33, being the balance of the purchase money for said capital stock received by plaintiff from Lamson, etc. It also appeared that the cause was submitted to a jury, who, after hearing the evidence, etc., returned a verdict finding the issues for the defendant, and assessing his damages at $418.70; that motion for new trial by plaintiff was overruled, and judgment rendered npon the verdict in favor of the defendanl; for $418.70 and costs." "Upon looking into the stenographic report of the evidence introduced, and admitted here without objection, it appears that it was conceded by both parties that upon the organization of the Silver Islet Mining and Milling Company certain prop- erties were transferred to it, standing in the name of the plaintiff, Wright, in payment for its stock. A one-half interest had been bargained to what was known as the 'Iowa Syndicate' and John Cudahy, and that certain other shares had been disposed of to other parties, and the residue of the stock of the company belonged, as claimed by Wright, to him, Wright, and as claimed by defendant, Griffey, to Wright and himself, jointly and equally. Six thousand 278 EQUITY IN PEOCEDUEE shares of the stock thus owned by one or both were sold to Lamson for $18,333.33, of which $10,000 was paid in cash to Wright, the plaintiff, and the_ residue was to be paid out of profits, etc. There is no controversy as to the residue, and no evidence was offered tending to show liability of Wright to account for it, and that item, in the notice of set-off, dropped out of the ease. The items of plain- tiff 's account filed with his declaration were practically undisputed, the only contention of the defendant being, that instead of being credits in favor of plaintiff, a part of them were payments made to him by Wright out of and on account of the one-half of the cash received from Lamson. The only contest was as to the ownership of the stock of said mining company remaining after the admitted sales to others. ' ' Wright v. Griffey, _ 147 111. 496-504. (In Illinois the statutory record has an enlarged function in some cases. See Wright V. Griffey; Becklenberg, 232 111. 120). § 345. (lY.) Riverside Co. v. Townshend, 120 111. 1-21. (p. IG) "The proceedings in the action before the justice, cannot be set up, as a bar to the present suit, for the reason that appellant was not s> party to that action. Kampan was the defendant therein, and made no defence, suffer- ing judgment to be recovered against himself. There is no evidence that appel- lant ever had any notice of the suit against Kampan, and its rights here can not be barred by the judgment in that suit, no matter what questions may have been adjudicated thereby." "The second action of forcible entry and detainer was begun, on August 23, ISSl, in the circuit court of Gallatin county, by appellant against William A. Howell and John E. Hall, who are shown by the evidence, to have been tenants of ap- pellees. The ease was tried before a jury, who returned a verdict of 'not guilty,' and, in September, 1881, judgment was rendered against appellant. This judgment is pleaded here, as a bar to the present action of ejectment; Appellees insist, that the validity of their tax deed was or might have been adjudicated upon and determined, in the action of forcible entry and detainer in the circuit court, and that app Jlant is estopped by the judgment of that court therein, from assailing the validity of the tax title in this case. ' ' "But a judgment in an action of forcible entry and detainer cannot be pleaded as a bar to an action of ejectment, for the reason that the questions involved in the two proceedings are different. The object of the action of ejectment is to try the title to property, while, in an action of forcible entry and de- tainer, 'the immediate right of possession is all that is involved, and the title cannot be inquired into for any purpose.' Kepley v. Lulce, 106 111. 395; McGuirk •w; Burry, 93 id. 118 ; Smith v. Hoag, 45 id. 250 ; McCartney v. McMuUen, 38 id. 237; Shoudy v. School Directors, 32 id. 290." Riverside Co. v. Townshend, 120 111. 1-21. See Bes Adjudicata, 1 Gr. & Eud. 171-200; also 4 id. The trilogy of procedure is perceivable in the above cases. Estoppels are odious, or, in other words, Verba fortius accip- iuntur contra proferentem. From the foregoing cases it is very clear that pleadings are a jurisdictional record, and that courts are bound thereby.''" § 346. (V.) Balsewicz v. C, B. & Q. R. R. (1909), 240 111. 238, 70 Cent. L. J. 5. From the latter we quote : "B., 18 years old, was killed at the residence of his parents at Kewaunee, in Burean County, a county remote from Chicago, which city is in the County of Cook. B. had no residence in Cook County, nor did he have any property therein. How- ever, one W. fraudulently and without any right whatever, by some chicanery, got letters of administration from the Probate Court in Chicago, and upon these made a purported settlement with the E. E. and gave it a release. The father in the meantime properly received letters where only they could lawfully be 76— Story's Eq. PI., § 10; Fletcher v. Boot, 241 111. 429; Thomas v. P., 107 111. 517, 47' Am. Sep. 458. ILLUSTEATIVE CASES 270 issued, namely, in Bureau County, and thereafter sued in that County and re- covered a judgment for the death. This judgment was affirmed by the Court of Appeals and was then carried to the Supreme Court, which was composed of both Cokes and Bacons. There, by a divided court, the judgment was reversed, upon these grounds: "Tte B. E. pleaded the general iss-ue (thus it seems. they denied all the facts). Under that issue, a release was offered in evidence; this release was given under the assumed authority of one W., who, by some means, received pretended letters of administration from the Probate Court in Chicago. This court had no territorial jurisdiction as the decedent did not live in Cook County, but in a remote county. Bureau County, through which the E. E. ran, and wherein the death was_ caused ; decedent lived therein with his parent. Beside this, W. had no authority whatever to apply for letters anywhere. All that was known of W. was that it appeared that he called on the E. E. and settled the damages, and gave a release and then vanished. This release was admitted in evidence under the general issue, and was decisive in the Supreme Court. In other words, this release operated as an estoppel of record, although estoppels are odious and must he pleaded, agreeably to the rule that an authority must be pleaded. But in this case the mere letters of administration were held conclusive upon the appellee. This appellee and all in privity with him were free of all fault, free of fraud, free of negligence, free of ignorance. "Estoppel is from the Eoman Civil law, and is a part of that law along with equity. Now one of the maxims of equity is that 'Equity looks at substance and not form'; and so this maxim is expressed and vindicated in the rules of pleading and proving all the estoppels, and especially estoppel of record. ' ' Many cases in Illinois hold that where the judgment or order of a court is relied upon to prove an estoppel or title to property, then the authority to enter the judgment or order must be pleaded, and if the allegations are denied, they must be proved. ' ' From a statement of the facts of the case it is an inevitable inference that the plaintiff was extremely astonished to learn in a trial in Bureau County what the Probate Court in Chicago had done. And all of this iniquity was concealed and masked under the 'general issue.' Nothing could be more at variance with fundamental law — the principles of equity and its cognate principles in res adjudicata or estoppel of record. "There are many decisions in Illinois emphasizing the importance of notice to the adverse side to prevent surprise. "The Municipal Court Act for Chicago also emphasizes the requirement of notice for 'trial purposes.' "It must be conceded that there are liberal intendments to uphold a judgment for some purposes and at certain stages, e. g., when a judgment is sued upon in debt. "But it is not conceded that when a judicial proceeding is desired to operate as an estoppel, and close one's mouth from speaking the truth, then such liberal in- tendment can be invoked. Estoppels are odious when they are not pleaded, and when they are odious, the presumption of regularity can not apply. ' ' Where a litigant sues on a judgment, he necessarily pleads it, so that his opponent has notice of what he is expected to meet, and ample opportunity to plead and prove the invalidity of the judgment, if he can. There, intendments in favor of the judgment may well be indulged. "But the case is very different, where the pleadings, as in the Balsewicz case, do not apprise the opposite party, that a judgment is being relied on as having settled any of the issues in the case. The father of the deceased went into the trial of his case, not knowing of the existence even, of the alleged order of the Chicago Probate Court, much less having had an opportunity to examine the record on which it was based, and thus ascertain whether it was valid. In such a case it is a manifest call of justice, that if the railroad is allowed to intro- duce its release at all, it be compelled to introduce the entire record of the Chicago Probate Court, on which the validity of the release rested. "To hold that this release could be sprung on plaintiff without notice, and that it thereupon devolved upon him to prove its invalidity, is the acme of injustice. It is to require the impossible. It is to put the unfortunate litigant in a hope- less trap. , , . "'Liberal intendments' should not attach to _ make pleadings an instrument of chicane and covine, instead of servitors of justice. Liberal intendments are for 280 EQUITY IN PEOCEDURE convenience, and to advance the due administration of the laws, but they should never be employed to reverse the maxim: ' Fraud vitiates all into vphich it enters. ' "Ex dolo malo non oritur actio is also from the Eoman Civil law, and in judicial proceedings it has no exceptions, unless the case under consideration constitutes, one. • "The Eoman Civil law — ^its equity — its maxims — its principles — is the law through- out America. Another of these maxima is De non apparentiius et non existenti- 6«« eadem est ratio: What is not juridically presented can not be judicially con- sidered. This maxim relates to the mandatory, the common law record. The force and effect of this record depend upon the facts expressed and set forth in it. There are no intendments in favor of the establishment of jurisdictional facts ; where a court must proceed upon facts, they must be shown to exist before any court can sequester or destroy one's rights. "And there is another maxim from the Eoman Civil law, which the Illinois Court is quite familiar with, judging from cases like Harrow v. Grogan (1906), and this maxim is: Omnia prcesumuntur rite et solemniter esse acta: All things are presumed to be rightly, regularly and validly done. "But this maxim is of secondary importance, and is one of convenience, rather that of protection. It rightly applies to the acts of a court, after jurisdiction has been shown to exist. All subsequent steps in the case are presumed to be 'solemniter et rite esse acta.' "The maxim: 'Estoppels are odious and are strictly taken,' on the other hand, is one of protection, and should not be frittered away on light grounds. "Were the maxims of the Soman Civil law better understood, and more frequently applied, there would be fewer failures of justice." In a case where questions of res adjudicata arose, the court disposed of these questions in the following language : "The appellee contends that this decree was improperly admitted in evidence and can not now be considered, 1st, because of the failure to offer in evidence the pleadings on which it is based; 2nd, because in decretal part the property is described as being in range 12 instead of range 13. The property, however, is not only correctly described in the findings of the court, but, moreover, it is shown that no piece of land would fully answer the complete description con- tained in the decretal part. The mistake is evidently purely clerical, and may under the circumstances, be disregarded. "Whatever be the correct rule, as to the necessity of introducing the entire record in a suit on a foreign judgment (See McMillan v. Lovejoy, 115 111. 498), or in support of the defense of res adjudicata (3 Wigmore, Verdicts, § 2110, n. 2), this objection, if valid, may be specifically made at the trial. Chamierlain v. Britten, 136 111. Ap. 290, aflirmed in 234 111. 246. The admissibility of the decree was objected to by the appellee on other grounds which were properly overruled." — P. v. Artesian Stone Co., 111. App. (A. D. 1910). In view of the above language, it cannot be assumed that a defense of res adjudicata was pleaded according to the rules of setting forth that plea ; if it was, and these facts were admitted, then proofs were unnecessary ; on the other hand, if these facts were denied, then the decree proved only one link in the chain of proof, namely, the decree. Introducing a decree alone and without more will not show a coram judice proceeding. The pleadings are essential for a plea of res adjudicata; if they are omitted, then there is the omission of a material allegation which ILLUSTEATIVE CASES 281 cannot be cured by waiver or consent." From the opinion it is fair to conclude no facts were pleaded to sbow a former adjudi- cation; and the rule is that defenses not pleaded are waived. The omission of material allegations, and the presence of a repugnancy in the decree, cannot be cured by the findings of the court.'^® Res adjudicata is an odious defense and is strictly taken; it is not aided or patched out by liberal intendments. If the plea was defective in substance, then the plaintiff could have moved for judgment non obstante veredicto. And of course he could object to it on appeal. When a pleading is bad in substance it is useless to discuss evidence offered to support it.'^^ In conclusion, it seems that a very lax view was taken of the requirements of res adjudicata and its protective rules. See these rules and requirements, 4 Gr. & End. § 347. (VI.) Thomas v. P. (1883), 107 111. 517, 47 Am. Eep. 458, cited and approved, 216 111. 249, 256-258 (Inferior and Superior Courts are governed by the same rules) : John Joiner was a tenant in common with other heirs; he left for parts unknown, and was not heard of for more than seven years. Upon the supposition that he was dead, his brother Daniel obtained letters of administration and caused John's estate to be administered on. In the course of this, a master in chancery, Thomas, was employed, and he collected and dis- bursed the assets in the course of administration. Upon demand he paid to Daniel the proceeds of a partition sale, which was derived from John's interests. John afterward returned and then sued Thomas and recovered a judgment. The proceedings may be cited to sustain several important propositions, among them the following: § 348. Administration of a Living Man's Estate Is Coram NoN JuDiCB. — A court given jurisdiction of a decedent's estate cannot acquire jurisdiction of a living man's estate. Expressio unius est exclusio alterius (The express mention of one thing is to the exclusion of all others). One is presumed dead after an absence of seven years if unheard of.*" But this presumption 77 Jackson v. Pesked, 1 M. & S. 234, note, 1 Wms. Saund. 228, 85 Eng. Ee- print 244-248; 105 Eng. Keprint, 88; Eushton v. Aspinall, L.C. 5, 3 Gr. & Eud. 78— Hitchcock v. HaigM, L.C. 12, 3 Gr. & Eud. 79 Fish V. aeland, L.C. 12c, 3 Gr. & Eud. ; Kenealy v. Glos, § 342, infra. 80 — Nepean v. Doe. 282 EQUITY IN PEOCEDURE is not conclusive; it is disputable. It will not support pro- ceedings that sequester a living man's estate.®^ The jurisdictional facts, the matter of substance constituting the grounds of authority upon which a court acquires juris- diction, must not only affirmatively appear in the right record, but, further, they must he true in fact.^^ If such facts do not exist, and cannot exist, then there can be no exercise of authority that binds anyone or anything. To attempt to bind what does not exist, or to conclude a fact which affects third persons, whether the state or the citizen within the state's protection, is usurpation, and is without binding effect. Fabula non judicium. If such facts fail, then all founded thereon falls. Debile funda- mentum fallit opus (When the foundation falls all goes to the ground). The "central," the jurisdictional, facts, upon which authority depends and must be exercised, must affirmatively appear in the right record. Quod ah initio non valet intractu temporis non convalescit (That which was void in the beginning cannot be- come valid by lapse of time).*^ § 349. One Is Never Estopped by Proceedings to Which He Was Not a Paety. — Audi alteram partem. Nor where he has been deprived of an opportunity to be heard.^* From Thomas we quote : ■* ' Regarding then the administration of a dead man 's estate as a proceeding in rem, and looking to the constitutional limitations of the court 's power in such cases, ■what is the first essential condition to the exercise of this power? Manifestly thS existence of a dead person's estate, for the court has no power to grant administration on any other kind of an estate, and any attempt to do so will necessarily be inoperative and void. In every proceeding in rem, and in every case in the nature (p. 527) of a proceeding in rem, there is some great central controlling fact upon which the jurisdiction or power in the court to act at all depends, and such fact must have an actual existence, otherwise the jurisdic- tion will fail. Thompson v. Whitman, IS Wall. 457; WheelrigM v. Depeyster, 1 Johns. 471, 3 Am. Dec. 345; Bose v. Himely, 4 Cranch, 269. "In the case last cited it is said by Chief Justice Marshall, speaking for the court: 'Upon principle it would seem that the operation of every judgment must de- pend upon the power of the court to render that judgment, — or, in other words, on its jurisdiction over the subject-matter which it has determined. In some cases that jurisdiction unquestionably depends as well on the state of the thing as the constitution of the court. If by any means whatever a prize court should be induced to condemn, as priza of war, a vessel which was never captured, it could not be contended that this condemnation operated a change of property.' 81— Scott V. Neal. 82— Wonderly, L.C. 103, 3 Gr. & Bud. 83— Story's Eq. PI., § 10; title Story, 4 Gr. & Eud.; Becklenberg, 232 111. 120- 123. 84r— Windsor, L.C. 1, 3 Gr. & Eud. See Balsewicz, 240 111. 238. ILLIJSTEATIVE CASES 2S3 "With equal propriety it may be said, if by any means a probate court should grant tetters of administration upon the estate of one still living, the title of tlie owner of such estate could not thereby be affected. The great central fact in tms class of cases, as we have already seen, is the existence of a decedent's estate subject to administration and distribution by the probate court of the proper county. It is confessed, upon the record before us, that in the present case the owner of the estate in question at the time of the grant of the letters was, and still is, alive. It follows, therefore, the grant was unauthorized and void.' "The cases of TTight v. Welliaum, 39 111. 563; Dodge v. Cole, 97 id. 338, 37 Am. Eep. HI, and other cases cited by appellant, are supposed to be inconsistent with the view here taken. "We do not think so. In the Wight Case there was no defect of jurisdiction. There was present the estate of a dead man to be ad- minstered. This actual fact authorized the court to proceed, and a mere irregu- larity in the proceeding could not, as (p. 528) was held in that case, be taken advantage of in a collateral proceeding. So in the Bodge Case, there was an insane person to be cared for and protected by a court of chancery. That was the great central fact in that case upon which the jurisdiction of the court depended. If in that case there had been no insane person, and such fact had . been admitted upon the record, as is here, then that and the present case would be in principle alike. But such is not the fact. Take the common case of a proceeding in admiralty to enforce maritime liens against a ship or water craft. Unquestionably before the court could lawfully proceed, there would have to exist, as a fact, a ship, or other maritime vessel, subject to the order and ad- judication of the court, otherwise it would have no power to act at all. Suppose, in a case of that kind, the liens sought to be enforced ■were, in point of fact, upon a private residence upon dry land, and the court should, nevertheless, after hearing the case, go on and order a sale of the premises, would the owner's title to the property be thereby divested? Surely not. And why so? Simply because tho court had no power or jurisdiction to act at all in that kind of a case." See Windsor v. McVeigh, L.C. 1. 3 Gr. & End., et seq. " All persons are presumed to know the law, and hence, in theory at least, there can be no great hardship in holding that every one acts at his peril in dealing with an administrator who has been appointed upon a mere presumption that his supposed intestate is dead. Everyone dealing with an administrator thus ap- pointed is conclusively presumed to know, if the supposed intestate should sub- sequently turn up alive, the grant of the administration, and all acts done under it, would be absolutely void." Pleadings are essential to invest a court with jurisdiction. Crockett v. Lea, 7 Wheat. E22, 526-527 (Marshall, C. J.) ; Eice v. Travis, 216 111. 249, 256-254, citing Thomas V. P.; BecMenierg, 232 lU. 120-123 (overruling earlier cases). § 350. "Due Process of Law" Depends Upon Jurisdiction OF THE Person;*^ also of the subject-matter, which must be a reality and exist in fact.^® Jurisdictional facts must exist in reality. One obtaining a divorce under false allegations cannot vindicate it.*'' A court has a right to proceed after acquiring jurisdiction of the person and of the subject-matter, if sitting at the right time and place.®* 85 ^Pennoyer V. NefF: 58; Audi alteram partem. 86 Fabula, nan judicium; S. v. Baughman: 268; Weltmer v. Bishop: 268o. 87—107 111 520; Sewall, 122 Mass. 156, 23 Am. Eep. 299; P. v. Dawell, 25 Mich "47 12 Am. Eep. 260; Hoffman, 46 N. Y. 30, 17 Am. Eep. 299; Hood v. S., 56 Ind" 963. 26 Am. Sep. 21 ; Gettys, ci Lea, 260, 31 Am. Eep. 637. g8_Windsor, L.C. 1, 3 Gr. & Eud. 284 EQUITY IN PEOCEDURE Jurisdiction of administration; rigJit to proceed. See Wight and Dodge eases, supra; Mohr V. Manierre, L.C. 68, 3 Gr. & Eud.; Astor v. Grignon's Seirs, 2 How. 319; Fjeem. Judg. 319a, 3rd ed. ; BaXsewicz, 241 111. 238 ; 70 Cent. L. Jr. 5. Jurisdiction cannot attach to a living man's estate. Scott v. McNeal; Springer v. SJiavender, L.C. 24, 3 Gr. & Eud.; Thomas v. P., supra. Contra, Boderigas, 63 N. Y. 460, 20 Am. Eep. 555. § 351. The Death, the Residence and an Estate in the Right Teeritoey Aeb Essential foe the G-eant of Letters or Adminis- TEATioN. — These facts are necessary for the vesting of juris- diction.®^ The mere issuance of letters of administration will not supply the omission of material facts. These facts must affirmatively appear in the right record, and those assuming to carry on the administration must take notice of what the appli- cation for letters shows. To this requirement the maxims of strict construction apply; the state and those within its pro- tection are involved, and for these, jurisdictional facts must affirmatively appear.^" The maxims of liberal construction do not apply where the state and its grantees are involved. The maxim last cited applies for the parties last mentioned. These parties are safeguarded by the principle in Quod ah initio non valet intractu temporis non convalescit.^^ Consensus tollit erro- rem and its cognates apply where there are two parties only concerned. § 352. Pleadings Are Essential and Cannot Be Waived.— A court looks to the pleadings as the charter of its authority, exactly as the attorney in fact looks to his power of attorney to see what he can convey or act upon. From the pleadings the court determines the "cause of action"; this must be stated; each necessary fact must affirmatively appear. There must be allegations to invest a court with jurisdiction of a particular and certain subject-matter.^^ From the court's power of attorney it determines what "cause of action," what- subject-matter, is described. If no subject-matter is described, then the court cannot proceed, for reasons indicated in Thomas; nor can it pro- ceed if a subject-matter is described of which the court cannot take cognizance. There must be a matter described " with cer- 89 — Thomas, supra. 90 — Campbell v. Porter, L.C. 2, 3 Gr. & Eud.; Eushton v. Aspinall, L.C. 5, id.; Sto. Eq. PI., § 10; see Story, 4 Gr. & Eud.; De non apparentibus et non existentibus eadem est ratio. 91— Windsor v. McVeigh, L.C, 1, 3 Gr. & Eud., et seq. 92— Vallandingham, 17 III. 25; Smalley, 19 111. 207; Fletcher v. Eoot, 241 111. 15, 23 (Consent will not confer jurisdiction). ILLUSTRATIVE CASES 285 tainty which the court in its organization can act upon.ss In this description the trilogy of procedure and its corollaries strictly apply for the protection of third parties. Herefrom is perceiv- able the importance of De non apparentibus et non exist entibus eadem est ratio and its corollaries, which are : 1. What onght to he of record must he proved iy record and hy the right record. Planing Mill Co. v. Chicago, L.C. 2d, 3 Gr. & Bud. 2. Pleadings are the juridical means of investing a court with jurisdiction of a sub- ject-matter to adjudicate it. §§ 56-61, 169, 273, 1 Gr. & End. 3. Consent will not confer jurisdiction of subject-matter. Fletcher, 241 111. 15, 23., These conclusions will find conclusive support in the trilogy of procedure, the English and the federal cases; also in the provisions of the Codes, which specifically provide for each pleading, and specify what each shall contain. All of these conclusions are reflected from the following quotation: "Jurisdiction, in the general and most appropriate sense of that term, as applied tcr the subject-matter of a suit at law or in equity, is always conferred by law, and it is a fatal error to suppose the power to decide in any ease rests solely upon the averments in the pleading. It is true that a court is not permitted, on its own motion, to institute a suit between the parties to a controversy. As claimed by appellant, there must be a properly framed complaint or other pleading show- ing a cause of action within the jurisdiction of the court before it can lawfully proceed to adjudicate. But behind all this there must be power in the court, conferred by law, to act in a real case of the character of the one supposed by the pleadings or complaint, and if there is not, the whole proceeding, and all acts done under it, will be inoperative and void." (Pp. 524-525, 107 111.) Next following we paraphrase the above quotation to present its meaning in varied forms, as follows : § 352a. 1. Jurisdiction Is the Power to Hear and Decide. — It depends on jurisdiction of the person, of subject-matter, and the statement of a "cause of action" in the right record. There must be a record, and the court is bound by this record. The pleadings limit the application of the court's powers; what it says or does beyond and without the pleadings and the accessory record matter is ultra vires and void; what it says without authority is a dictum. A court cannot act without its record, and if it does its acts are coram non jvdice.^* § 353. 2. Courts Cannot Choose Their Cases; They Can Only Decide the Cases Which the Parties Have Peesbnted by Theik Statements of the Cause op Action and of the Ground OF Defense.®' — Any other view would tolerate variances and 93_Story's Eq. PL, § 10; U. S. v. Cruikshank, L.C. 232, 3 Gr. & Bud.; Slaoum ■V. Pomery, 4 Gr. & Eud. 94_Wind3or, L.C. 1, 3 Gr. & Eud., et seq. 95— Cohens v. Virginia, L.C. 244, 3 Gr. & Eud. 286 EQUITY IN PEOCEDUBE departures, wHch are inimical to a certain definite procedure. A recovery must be secundum allegata et probata.^^ § 354. 3. A Coram Non Judice Proceeding Will Not Sup- POET A Plea of Ees Adjxjdicata. — Such a record is not in accord "with due process of law. A defect in jurisdictional facts vitiates judicial proceedings and subjects them to collateral attack. From the dissenting opinion we quote a rule well stated, which is : "When a court, not Laving jurisdiction to appoint an administrator of the deceased, is induced by fraud to make the appointment, -we tliink it is subject to attack collaterail.y in the interests of justice, and this view finds support in Sidens- parlcer, 52 lie. 481. Fisano (N. J.), 48 At. 681; BrougMon, 34 Ala. 694, and Sarwood, 70 Tex. 538. ' ' Balsewicz, 241 111. 238, 249. It is a fraud to condemn one or to sequester his estate, unheard. Audi alteram partem. Fraud vitiates all into which it enters. Ex dolo malo non oritur actio. § 355. (VII.) O'Brien v. P., 215 111. 354-376, 108 Am. St. 219. Franklin Union No. 4 v. P., 220 111. 355, 110 Am. St. 248. Cf. Rice V. Travis, 216 111. 249, citing Thomas v. P. and reversing Rice, 117 111. Ap. 644, 4 Gr. & End. ; Becklenherg, 232 111. 120. Pleadings Are Not Essential for Jurisdiction. "1. Jurisdiction does not depend on sufficiency of bill. Jurisdiction of a court of equity does not depend upon the sufficiency of the bill, and if the court has jurisdiction of the parties and of the subject-matter, the fact that the cause of action is defectively stated does not oust the court of jurisdiction. "2. Same — Jurisdiction of subject-matter does not mean jurisdiction of particular case. Jurisdiction of the subject-matter does not mean jurisdiction of the par- ticular case, but of the class of cases to which the particular case belongs and does not depend upon the sufficiency of the pleadings nor the rightfulness of the decision. ^'3. Effect wTien hill for injunction states conclusions. A bill for injunction may state conclusions of the pleader, but if not demurred to and the evidence sup- ports a decree conforming to the general allegations of the bill and the decree is within the power of the court, the court has jurisdiction, and jurisdiction is not lost because of errors in the decision. ■"4. What allegations sufficient to give court jurisdiction. Allegations of a bill for injunction charging defendants with intimidating complainant 's employees, assuming a 'menacing and threatening' attitude and inducing complainant's employees to leave their employment by 'threats and unlawful persuasion,' sufficiently charges such acts of the defendants as give the court jurisdiction to pass upon the bill." (Pp. 354, 863, 110 111.) "5. Duty to obey injunction does not depend upon correctness of decision. If the court has jurisdiction of the parties, and the bill alleges acts of the defendants sufficient to give the court jurisdiction to determine the sufficiency of the bill, the fact that it may have erred in sustaining the bill and issuing the temporary injunction does not affect the duty of all persons having notice, to obey the injunction until the order is reversed. "6. Same — What not a defense to contempt proceeding for violating injunction. 96— Bristow v. Wright, L.C. 135, 3 Gr. & Eud.; see Theory of the Case, also yariance, 4 id.; Fish v. Cleland, 33 111. 238, L.C. 12c, 3 Gr. & Kud. ILLUSTEATIVE CASES 287 L^1efense"raloTe.Sf°° '''^•^ ^r"*^" *'^"" t'^^ allegations of the bill is Snce the order LaS ^thl P'^'"^\.^<"' contempt in violating the injunction, Slowing it voiU ^'^°*'°S *^^ injunction can be collaterally attacked only by "^" fotTctfAh? t^l\T:7^'"""r'"' *° ^»^»«*^°»- A person having actual comDLinant 's emrfnvpi. ?= '"J^i^ehorL restraining all undue interference with a part; to theTu^t '^''' '' ""'°'^^^ *° '''' injunction, even thongh he was not O'Brien v. P. should be connectedly considered with Thomas v. P.; Rice;"" also Windsor v. McVeigh?^ O'Brien may be cited to the point that jurisdiction depends on two elements only: first, jurisdiction of the person; and second, of the subject-matter. Of the latter, the sole question is. Could or might the court have acted upon the matter for which judgment was entered, without regard to the state of the plead- ings? In other words, the trilogy of procedure is denounced, and therefor the trilogy of liberal construction is substituted. Under O'Brien consent can give jurisdiction of subject-matter.9» § 356. (VIII.) Franklin Union No. 4 v. P., 220 111. 355, 110 Am. St. 248, follows O'Brien v. P. § 357. . (IX.) Rice v. Travis, 216 El. 249, reverses same case, 117 111. Ap. 644, 4 Gr. & Eud. Omnia prcesumuntur rite et solemniter esse acta applies alike to superior and inferior courts. The distinction between these classes of courts is obliterated by the decision of the supreme court. The appellate court decided that the value of the property should appear upon the face of the judgment record itself (the justice did not have jurisdiction where the property exceeded $200 in value, in cases of replevin). The latter court cited and followed Crogate's Case} No other case was cited to the juris- dictional point involved. Another very important rule was involved, and to present it we quote (117 HI. Ap. 646) : "One other than an officer, claiming a justification under the proceeding or process of a justice of the peace, must show affirmatively the existence of the material facts upon which the jurisdiction of the justice depends. Barnes v. Barber, 1 Gil. 401 ; Whitney v. SMfelt, 1 Denio, 593 ; Savacool -u. Boughten, 5 Wend. 170 (L.C. 164, 3 Gr. & Eud., et seq.). The jurisdiction of a justice of the peace in replevin is confined to cases in which the value of the goods taken on the writ is two hundred dollars more or less. Appellants are not officers (justifying 97—216 m. 249. 98— L.C. 1, 3 Gr. & Eud. 99 — g.p.^ Buck. Stove & Eange Co. v. Am. Pederation. o'f Lab'or, 37 Nat. Corp. Eep. 710. 1 — 8 Hep. 66o, 67J, 77 Eng. Eeprint, 574, Smith 's Lead. Cas., 8th ed., also 5th, 6tli, 7th eds., omitted in all others. 288 EQUITY IN PEOCEDUKE under regular proceos, Savacool, supra), but persons by whom the jurisdictioa of the justice was invoked. In order to justify or claim under the judgment of the justice it was incumbent on appellants to show by evidence, other than the transcript of the judgment, the existence of facts which gave the justice jurisdiction over the subject-matter." This case should be studied witli Crepps v. Burden.^ The justice failed to find and state the jurisdictional fact of value. The appellate court held this was necessary; but the Supreme court reversed the case and held that it was sufficient if the affidavit in replevin stated the value. In other words, that jurisdictional facts might be gathered from the file papers, exactly as they are in a superior court proceeding under common law powers. In Missouri a similar question is discussed in Doddridge, already mentioned.^ , § 358. (X.) In Taylor v. Sprinkle,* it was held that conclu- sions of law were insufficient to invest a court with jurisdiction. These are vulnerable to the general demurrer, and the ground of the general demurrer is never waived. 'Brien may be cited to the contra. Thomas v. P. quotes and adopts the federal cases, and in these the trilogy of procedure. These require more than two things for the vesting of jurisdiction. O'Brien v. P. fixes jurisdiction on two elements only. This is the irreducible minimum. The addition or the subtraction of an element of jurisdiction has far-reaching effects; it disturbs the entire juridical fabric. Besides, O'Brien may be cited to the point that the mandatory record may be aided or reinforced by matter found in the statutory record ; that probata may supply allegata.^ This view is opposed to the rules of the trilogy of procedure, also of the conserving principles of procedure.^ If jurisdiction does not depend on essential pleadings, then the discussion of these in O'Brien was altogether superfluous.'' Fluctuating views as to the functions of the mandatory and statutory records, and as to the essentials of jurisdiction and 2— L.C. 113, et seq., 3 Gr. & Bud. 3 — § 131, ante; Crepps v. Durden, L.C. 113, 3 Gr. & Eud., et seq. 4—1 111. 1; §§ 315, 341, ante. 5— See Fish v. Cleland, L.C, 12c, 3 Gr. & Eud.; Kenealy v. Glos, 241 111. 15, 23-26; Wright v. Griffey, L.C. 27, 3 Gr. & Eud. (Issues may be identified by evi- dence aliunde). 6— §§ 83-123, 1 Gr. & Eud. 7— See also Eiee, 216 111. 249. ILLUSTEATIVE CASES 289 of the coram judice proceeding, profoundly disturb settled and uniform law. In other words, adherence to and vindication of the trilogy of procedure as in Thomas v. P., on the one hand, and the substitution of the trilogy of liberal construction on the other hand, as was done in O'Brien v. P., make the basis of the law like moving and ever-changing quicksands. These conclusions will find support in a careful comparison of Thomas v. P. and ■O'Brien v. P. A misuse of the records and of the trilogies referred to introduces a veritable Babel. The pole star and its pointers— the trilogy of procedure, the record for which this calls — the mandatory record, and the cog- nate rules, namely, "What ought to be of record must be proved by record and by the right record," and "Pleadings are the juridical means of investing a court with jurisdiction of a subject-matter to adjudicate it," must ever be kept in view. Disregard of these matters introduces the departures and vari- ances, upon which depends the "theory of the case," which has misled prominent authors and several courts.® When the philosophy of the law is lost the law is lost. By TQeans of such changes the law is made to speak all things to slU men. Ubi jus incertutn ibi jus nullum. § 359. (XI.) TUden v. P. (1909), 242 111. 536; criticised, m. Law Eeview, March, 1910 ; also 70 Cent. L. J. 284-285.— The pleadings (indictment) was faulty because it was repugnant. Indictment for forgery; words of manifestly false description constitute a fatal repugnancy. — In an indictment for forging a note, the charge was: ""Wliich said note was in words and figures, in substance, as follows, to-wit:" (Then follows a copy of the note ; in other words, it was set forth in hcec verba.) Held, upon motion in arrest of the judgment, that the indictment was fatally bad. That the words "in substance" vitiated the indict- ment. That they were not surplusage ; that when a particular description is followed by a general description, the latter does Bot control the former. It may be observed that it ought not to be said that this pleading was repugnant. Giving effect to each word, it was not «ven ambiguous, much less repugnant. There was no room for 8 gee Theory of the Case, also Variance, 4 Gr. & Bud. 290 EQUITY IN PEOCEDUEE an application of Verba fortius accipiuntur contra proferentem (Every presumption is against a pleader). To the above words Vt res magis valeat quam pereat (It is better to conserve than, to destroy) should have been applied."* Viewed from funda- mental law, it cannot be conceded that the charge was formally defective, much less bad in substance. The words "in sub- stance" followed by a copy were not misleading; this indict- ment would have been void under tests of res adjudicata — former jeopardy. The instrument in question was present. Res ipsor loquitur. Altogether the charge was certain. Cerium est quod certum reddi potest: That is sufficiently certain which can be made certain. Suppose that the pleader after the words "in substance"' had set the note out according to its legal effect, and then have followed this with the literal copy of the note, would not the description of it "in substance" be mere surplusage? Cer- tainly it could not have been anything more than surplusage, or general description followed by particular. The pleading was not repugnant. Therefore let us ask, what was the matter with it? In relation to the above question, the following maxims should! be considered : 1. Prwsentia corporis tollit errorem nominis, et Veritas nominis tollit errorem demon- strationis : The presence of the body cures the error of the name. 2. Noscitur a sociis: A word is known by its companions. 3. Falsa demonstratio nan nocet: A false description does not vitiate. 4. Surplusagium nan nocet: Surplusages do not vitiate. 5. Utile per inutile nan vitiatur: What is useful is not vitiated by the useless. 6. Veria generalia restringuntur ad liabilitatem rei vel personce: General words may be restrained and confined by a particular description or person or thing plainly appearing. It is instructive to observe that in Estes v. Desnoyer's Co}'' it was held demurrable to set out an instrument in hoec verba. Cases like this destroy the philosophy of procedure and drift it into a morass of statutes and decisions which may well be characterized as "wise saws and modern instances. "^^ The feudal governments viewed law as local and provincial. This influenced their authors and their followers. But there is another way for the jurisprudent, and that is to learn the 9—1 Chit. PI. 237. See also Guedel v. P., L.C. 74a, 3 Gr. & Eud. 10—155 Mo. 577, 583. 11— See Preface, 3 Gr. & Eud. ILLUSTRATIVE CASES ggi orient peaks of the law; those principles that are old and well ■worn, but those which have worn best. Dovaston v. Payne^- is a very strict case illustrating "Every presumption is against a pleader"; and equally strict is U. 8. v. LinnJ^ But Tilden v. P. surpasses the maxim, also the English and the federal cases." § 360. (XII.) • Bishop V. Busse, 69 111. 403, involved this principle: "It is no consideration for one to do what in law he is already bound to do."" In Bishop a builder contracted with the owner to build a tenement at a certain price. During the tune of completion, material advanced in price, and then the builder threatened to abandon his undertaking unless he was paid more than was already agreed upon. It was alleged that the owner, to induce the builder to go ahead and finish his con- tract, agreed to pay the builder. This the owner denied. Upon this "cause of action" evidence was introduced and the jury found against the owner. The verdict was upheld. This was disposed of without any reference whatever to Cumber, or 8tilk, or the well-established rule, that it is no consideration for one to do what he is already bound to do. This decision of "native sons" is reprinted and is taught students, unattended with any reference whatever to the old and long-discussed cognate cases, Cumber and Stilk, and cases cited therewith.^" Obviously, too much is left for the teacher to explain to the class. Such reprints are likely to mislead the student, who should be plainly told that Bishop V. Busse is not the law. § 361. Concluding Reflections on the Foregoing Ca^es. — To illustrate the mischiefs of wabbly, blurred and hazy decisions of courts, reference is made to the discussions of great prin- ciples, not in procedure only, but in contract as well. ' Selections are made showing that Non hcec in foedera veni (I did not come into this compact) and Res inter alios are leading principles — also Ex nudo pacto non oritur actio (No cause of action arises from a bare agreement) — and are much obscured. For this end 12— L.C. 217, 3 Gr. & Rud. 13—1 How. 104; Stephen v. Beall, 22 Wall 239. li—Cf. O'Brien v. P., 216 111. 354, 108 Am. St. 219; Tranklin Union v. P., 220 111. 355, 110 Am. St. 248 (Pleadings are not jurisdictional) ; Moynahan v. P., 3 Colo 367, 4 Gr. & End. ; Balsewicz, § 336, ante. ],5 Cumber v. Wane, L.C. 311, 3 Gr. & Eud.; Stilk v. Myrick, 313 id. ]6_L.r. 311-313, 3 Gr. & Eud. 293 EQUITY IN PEOCEDUEE attention is called to tlie principle that two cannot contract so as to affect or prejudice a third; also, that merely accepting benefits does not make one liable to pay therefor." A contract between two wherefrom a third person derives benefits consti- tutes no obligation upon the latter to pay for these benefits.^* Fundamental principles expressed in Non licec and in Res inter alios acta were all that was before the court in the Illinois cases last cited. Looking from these principles, a half dozen lines were enough to dispose of each case. The fact that, the contracts were specialties between the two contracting parties made no difference whatever. It was not necessary to empha- size that fact. Cutter, supra, which was quoted and followed, was not under seal. But the seal to the contracts was made so impressive, was so magnified and accentuated, that the cases cannot well be cited to sustain the maxims involved. These were not clearly perceived and impressed; they can only be picked and argued out. A brief, terse statement might have been made, for instance: In the absence of a request, express or implied, and a promise to pay for benefits, there was no contract of the third person to pay for the gratuities received.^" Where there is an express contract there can never be an implied one. Ex- pressio unius est exclusio alterius. And here it is asked if Bishop, Walker and Compton cases are good cases for the teaching of leading principles. Also why it is that when the Illinois lawyer crosses his state line he leaves his profession behind, while at home it is an inextri- cable tangle throughout a thousand books, and variant to all other states."* It seems well to cite the great cases and write in the light of them ; and to avoid bungling citation of them ; to correct works relating to them. This kind of work should be followed by digests gathering the maxims and great cases where cited, and 17— Bartholomew, L.C. 302, 3 Gr. & Bud.; Boston, L.C. 320 id. 18 — Non Time; Expressio unius est exclusio alterius (The existence of a special contract excludes an implied one) ; Cutter, L.C. 308, 3 Gr. & Eud., quoted and fol- lowed in Walker v. Brown, 28 111. 378, 81 Am. Dec. 287 ; Compton v. Payne, 69 111. 354. See these principles, L.C. 301-302, 3 Gr. & Eud. 19— Bartholomew, L.C. 302, 3 Gr. & Eud.; Boston, L.C. 320 id.: Cases. Non hmc in fvedera veni; Ees inter alios acta, etc. 19a— Cumber v. Wane, or "Ware," is cited, 116 111. 423; 56 111. 101; 125 IlL €39; Cutter t. PoweU is cited, 27 HI. 494; 28 lU. 384; StUk is not cited. See S 312, ante. ' ILLUSTBATIVE CASES 293 these corrected by competent authors, and digesters. Such. work would add much in value to many reports. Eeasons for these observations will appear from an investigation of the Illinois reports, and also those of Missouri. Whether or not it is best to attempt to found a jurisprudence exclusively on the efforts of local and "native sons" may be judged; also the wisdom of Justinian's edict requiring that juridical writings .should cite the fundamentals. "By their fruits ye shall know them."^" Had that all-swaying trio of the nineteenth century — namely, Chitty, Stephen and Gould — cited and discussed the fundamen- ials, instead of digests, abridgments and incomprehensible deci- sions and quotations, the condition of many states would be different. The provincial lawyer is not trained to view his state agen- cies as a mere expositor of the law, but rather as a creator of the law. Such is the result of teaching that every province may have a separate and distinct body of law unto itself. Accord- ingly, the provincial lawyer is ever befogged with the idea that he must always speak from the words of his statute and what his court said in its latest decisions.^i 90 — See Observations in preface to this volume. ilZ§ 332, ante; see lUinois cases referred to in the preface to this volume. CHAPTER XVII (§§ 362-509) COXSTEUCTION OF PRACTICE ACTS, ILLUSTRATED BY ENGLISH, FEDERAL, MISSOURI AND NEW YORK CASES '"^*'^if«rt?rpnt*nV'?o^*^ -"^ ■*''® possibilities for good which may be realized through the enartment of law is, m my opinion, greatly exaggeratea.'"— Origin of Law, Carter, ' °"'i'Hei"*post'^''** *^® *<"'<^'i »°d J<^a3s the judiciary through the darkness. Rector „. Courts have inherent powers to safeguard the due administration of our laws. 8. ex rcl. Benson i\ Sheppard, 4 Gr. Rud. Statutes must yield to fundamental law. Mallinckrodt L.C. 12a, 3 Gr. & Rud. ; Biddle v. Tt. ..?i'i5'''' f^ 406-437, post; 8. ex rel. Pemiscot Co. v. Scott, \.% 435-443. Xhe liberal provisions of our code" were copied from the statute of Amendments and Jeolalls In England ; and accordingly we construe them as they are construed in England. Andrews v. Lynch, 483-496 ; Bliss, Code Pi., 437-442. This court has ceaselessly tried to teach the bar the distinctions between the statutory and the mandatory records ; but the task appears hopeless. Pennowfsky v. Coerver, 205 Mo. 135. "Attempts to master the code without knowing the older systems is a grope In the dark." —Bliss Codi; PI., § 141 ; see 70 C.L.J. 294 ; 311-314 ; 402-407 ; 455-460. Fundamental principles. %% 333-344, 381. et seq. Can a constitutionalism be conducted In disregard of the trilogy of procedure? §§473, 494. The Cases (§§ 406-509) T. Biddle v. Boyce, |§ 406-427, first American code case. The code provisions not apprehended. A discussion of the first great principle of all protecting systems rf procedure, De non apparentiins et non exist entibus eadem est ratio. IT. Eno V. Woodworth, §§ 428-434. A discussion of the common counts; applicability to codes. m. State ex rel. Pemiscot County v. Scott, || 435-443. The mandatory record is. opened by the court without regard to a motion to arrest the judgment. Our statute does not enlarge the operation of Consensus tollit errorem. Matter of substance cannot be waived. Apply to formal matters only. Dissenting opinion discussing the statutes providing that the mandatory record' is surplusage without a motion in arrest filed. IV. Cape Girardeau E. B. v. B. B., §§ 444-447. Statutes yield to fundamental law. Yet they say defenses may arise from the evidence unless it is objected to. V. Hope V. Blair, §| 448-452. What constitutes a coram judice proceeding. Ele- ments of jurisdiction; pleadings essential for. Munday v. Vail, L.C. 79, 3 Gr. & Rud. Also Cooper v. Beynolds, 2 Gr. & Bud., cited and followed. S.P., Keneahj, § 342; Thomas v. P., 347-354. VI. Bulkley v. Big Muddy Co., |§ 453-457. A statute may dispense with allegations showing who is the wronged party. Elements of a coram judice proceeding erroneously considered. TH. Davis V. Jacksonville Line, § 458. A cause of action must be stated ; the statute of Jeofails applies to formal defects only. VIII. Lilly V. MenTce, §| 459-461. The statement must contain a "cause of action." This cannot be waived; statutes apply to formal defects; necessary parties are jurisdictional. IX. Bateson v. ClarTc, % 462. Error appearing upon the mandatory record will "keep"; it needs neither objection nor exception. 295 296 EQUITY IIST PEOCEDUEE X. Cramp v. Dunnivant, §| 463-479. Criticisms of; was a "cause of action" stated in contract? Can statute-code or practice act dispense with material facts and material allegations? The heartwood of contract discussed: 1. Non hcBc in fwdera veni; 2. Ex nudo pacta; 3. In pari delicto. These principles and pleading of contract are interactions. And oo it is with so-called adjective and substantive law. Fundamental principles discussed. Cf. Carson, holding the opposite, infra. XI. Carson v. Ely, |§ 480-482. The elements of contract and of pleading are inter- actions. Illustrations. Cf. Gramp, supra. XII. Andrews v. Lynch, §§ 483-496 — elucidated and approved. There is no express waiver of pleadings. An important and instructive case. XIII. MallincTcrodt, §§ 497-504. Pleadings a necessity. Statutes apply to formal matters only. Legal conclusions insufficient. Important observations. S.P., §§ 315, 325, 341, ante. Xrv. Hannibal B. S. v. Mahoney, §§ 505-508. Jurisdiction of subject-matter is never waived; the coram judice proceeding is always inquired after. Vehile funda- mentum fallit opus. Wherever the coram judice proceeding is required, the court will open the record and examine it, and will sua sponte take notice of defects in the record offered to evince such proceeding, without regard to the relations of the parties named on the record, or their conduct or wishes. Campbell v. Porter, L.C. 2, 3 Gr. & Eud. XV. Rector v. Price, § 509. Statutes yield to fundamental law. Principles of the prescriptive constitution control. § 362. Missouri; Historical; Introductory Considerations of.— The Field Code was adopted in New York in 1848; this was re-enacted by Missouri, February 24, 1849, to go into effect July 4tli next ensuing. This act was but thirty-six pages, includ- ing forms, law session size. These facts will indicate the brev- ity and general appearance of the original act, which has grown into vast and numberless volumes, beyond human capacity. The first Code case decided is Biddle v. Boyce,^ which related to what the statement of the cause of action must contain. . The second case is Eno v. Woodworth^ (is the language of the com- mon counts for money had and received sufficient?). These first decisions show that each court overlooked fundamental prin- ciples, and looked at verbal expression, or looked to form more than substance. Indeed the Missouri court needlessly expressed its hostility to the Code. As Coke embraced and construed for equity, so the Missouri court accepted and construed for the €ode. It is the purpose to indicate in the following pages that the Code was erroneously construed; that also the immutable ele- ments of procedure were not understood; that they were not 1— (1850), 13 Mo. 532. 2— (1850), 4 N. Y. 249, 53 Am. Dec. 370-374, n. ILLUSTRATIVE CASES 297, perceived as the higher law, and that in their light beneficent construction must proceed agreeably to the maxim : In prcBsentia majoris cessat potentia minoris: In the pres- ence of the major the power of the minor ceases. The cases will show that the courts assumed that a new and revolutionary act had been enacted, and that this must have a new and a radical development, according to the letter of the statute without regard to fundamental law. The constructionists of the nineteenth century did not understand the trilogy of procedure hereafter quoted and explained ; the meaning of these maxims was not comprehended in the Code language ; the courts were led by verbal form, they did not know the substance. Xot knowing the spirit of the law and its fundamental prin- ciples, the court construed variantly, also differently from day to day. The exposition of the Code will constantly remind the reader of the truth expressed in the maxim : Cujus est instituere ejus est ahrogare (He who can institute can also abrogate). § 363. From Great Events Came Great Laws Before Incom- PETENT CoTJETS. — The reformation, the strife of Bacon and Coke, England's two revolutions and wars with America, Mans- field's decisions, and the claims for the invulnerability of legis- lative acts, and the issues relating thereto and discussed in Marhury v. Madison (A. D. 1801), and other conflicts over the division of state power, and over slavery, wherein the dominant party insisted that construction must be literal, and that all legislative acts were valid unless "the finger could be put upon the word or words of the constitution restraining the legis- lature," the coming of the Code, and experiments with legions of eases and their overtoppling digests have borne their fruit- age.3 In the eve of great events the American government was organized, and in the dawn of these, great and overshadowing questions arose, and in the midst of these, the Code was con- ceived and put in operation. Naturally it met great opposition, and had laid to it the mischiefs arising from the ignorance of the legal profession, and the prejudice of the courts. It seems well to illustrate these facts and to keep them in mind. For these facts will plainly indicate that the Code came too 3_Green Bag, Feb., 1910; 34 Am. Bar Assn. 787, 832, 836; 70 Cent. L. J., 294-296, 311-314, 402-407. 298 EQUITY IN PEOCEDUEE «arly, and that the American government found no adequate juristic force prepared to expound and to enforce the new act. One leading mischief in the way was the too great respect paid to legislative power. Generally the bar was educated to place statutory above all other law, if only it was constitutional.* § 364. Early Attacks Upon the Philosophy of the Law; Consequences. — Prior to the adoption of the Code, very impor- tant and innovating statutes had been enacted and continued in force by construction. One of these provided that no error should be entertained nor considered in the supreme court unless such error had been presented in a motion for arrest, in the trial court. As early as 1835, statutes aimed at the impairment of the necessities for res adjudicata, collateral attack, appellate procedure, due process of law, constructive notice, and other conserving principles of procedure had been enacted and constantly applied. This provision was incompat- ible with the Code provision, which provided that filing an answer would waive all formal defects; for hereby the Code recognized that grave jurisdictional defects could not be waived nor cured. § 365. A Statutory Stumbling-Block and Its Consequences.— To illustrate the effect of this act it is well to observe that the m,otion in arrest was made to operate on the mandatory record, exactly as the motion for a new trial and its consequent record, the assignment of errors, operates upon the statutory record. It must be borne in mind that whether or not, and also to what extent the statutory record will be opened, depends upon the assignment of errors and its specifications. The Legislature provided that all errors shown by the mandatory record should be waived unless such errors had been specified and presented to the trial court in a motion in arrest of the judgment. Accordingly, the coram non judice proceeding must, by the waiver prescribed, be waived and condoned. In other words, the fatally defective statement of a cause of action or of a defence might be cured by waiver ; and so it was held to be waived unless such error was described in a motion in arrest of judgment. The operation of this act was to declare a waivable matter, hung 4— Eison, L.C. 253; Blair, L.C. 254, 3 Gr. & Eud. ILLUSTEATIVE CASES 299 up for an indefinite time, and until the stage of the motion in arrest was passed. §366. Judicial Means Surrendered to the Legislature; Jl.xcEPTioNs.-Generally, the judges were inclined to respect this act and to concede its validity. But at times opposition to the act manifested itself, as in Andreivs v. Lynchf also in those cases holding that the statute applies to formal matters only, and not such as would constitute a ground for collateral attack. If this statute applied to formal matters onhj, then matters waiv- alle in character were not definitely disposed of until they were omitted in the motion of arrest. Many cases show that formal error, if waived for an instant, luas waived forever. In other words, formal error was governed by the old law, and the usual rule. Consensus tollit errorem: The acquiescence in formal error obviates its effect. § 366a. Statutes and the Necessities of Courts Conflict.— The attempt to give the maxim Consensus tollit errorem an operation beyond that boundary fixed for it by the Eoman and the English law has had the effect of presenting a humiliating and even a destructive establishment of irrational confusion. The attempt to enforce the commands of the statute on the one hand and to deny them on the other introduced warring systems of procedure, which, for results, thoroughly deranged the due administration of the laws." § 367. Fundamental Law Denied; Local and Provincial YiEws. — It seems that the view generally prevailed that pro- cedure was a local and provincial affair, and that its principles were not protected by constitutions for the reason "that the finger could not be placed on the word or words violated, also the extent of the infraction"; that legislatures had all power except as restrained by a "written" constitution. The English- man's leading maxim was first "the King is the State," but after two revolutions he changed it to "Parliament is omni- potent"; but in the nineteenth century he abandoned this, and found a higher law in the fundamental principles of the Civil law of Eome, the importation and restoration of which he began during the Eenaissance. 5—27 Mo. 167. (Xapton, J.) 6— Dovaston v. Payne, L.C. 217, 3 Gr. & Eud.; Bushton, L.C. 5 id. 300 EQUITY IN PEOCEDUKE §368. "Parliament Is Omnipotent" No Longer.— Now it cannot make a man judge of his own cause ]' and at this tim& Missouri would so hold.® But during slavery days narrow and even perverted views of construction were abroad. Whenever possible each paragraph commenced, "Our Constitution," "Our State," "Our New Code," "Our New Practice Act," or "Our Revised Statutes" regulate the sufficiency of our records and of the necessary means of the judiciary. In other words, there was no prescriptive constitution. If "Our Statute" abolished rec- ords altogether, and made the functions of clerks of courts vain and fruitless, nothing remained but for courts to obey. Plainly it was recognized that the mandatory record could be abolished; that fatal defects therein could be waived, consented or con- tracted away; that the means of Res adjudicata, constructive notice, of a review in appellate procedure, removal of causes, and other conserving principles of procedure^ could be abolished ; also that the rules of the general demurrer could be changed, and the rule that the general demurrer searches the entire record and attaches to the first fault^" could be changed. Indeed the view prevailed that the state — government — had no means of vindicating its position as a third party in the exercise of official action, and that where the mandates of this silent yet dominating party to proceedings were disregarded, it could not enforce respect for its position by an application of Quod db initio non valet intractu temporis non convalescet (That which was void in the beginning cannot be made valid by lapse of time) here, or Res inter alios acta alteri nocere non debet (A transaction be- tween two cannot operate to the disadvantage of a third) there, or Non hcec in fosdera veni (I have not come into this compact) yonder. Still, public policy in contract and in procedure was expressly recognized in Basye}^ But the court did not uniformly see the interdictions of public policy against the coram non judice proceeding. By force of "Our Statute" or "Our Code," 7— Dimes, L.C. 176, 3 Gr. & Bud. 8— State ex rel. Henson v. Sheppard, 4 Gr. & Bud.; Nowaek, 133 Mo. 24, 42 (Statutes yield to fundamental law) ; Cloud, 86 Mo. 366 (Audi alteram partem is "due process of law"). Cf. Haskell, 31 Mo. -435, 437. 9— §§ 83-123, 1 Gr. & Eud. 10— ColHer, 1 Mo. 1 ; Haskell, 31 Mo. 435, 437. lJ-~28 Mo. 41. (Requirement for one answer cannot be satisfied by stipulation that the original and an amendment thereto shall stand for one. Convenience forbids Bueh compacts.) ILLUSTKATIVE CASES 301 a loid judgment or proceeding could be aided or cured by the failure to file a motion in arrest. Consequently a void judgment could not be assailed upon collateral attack, anyway, unless a motion in arrest has been filed after the manner of a motion for a new trial already referred to. Consequently the rule that the ground of the general demurrer could be waived; "but in later cases the court held it would keep.''^^ §369. Fundamental Principles Reaffirmed by the Code Nullified.— The provision of the Code that filing the answer would waive certain formal matters but not jurisdictional defects, was not uniformly viewed and enforced; fatal defects in statements of causes and defences were aided or waived and cured if no motion in arrest was filed, and exceptions saved to the court's rulings upon such motions. Therefore the statutory record (the bill of exceptions) became a necessity in every cause reviewed by the supreme court ; there were no errors nor defects in the mandatory record that the court would sua sponte notice, and act upon. So the coram non judice proceeding would pass as coram judice if only an injured party named on the record acquiesced by failing to object in a motion in arrest. It is need- less to discuss how this singular and illogical procedure affected questions of res adjuJicata and collateral attack. The decisions of the court show many incongruities relating to the conserving principles of procedure. § 370. Division of State Power Nullified.— From many deci- sions it appears that the functions of clerks of courts of record could be abolished by statute, if only it so read. Thus the divi- sion of state power could be abolished, or disregarded, if only "our statute" so provided. To illustrate: If the parties agreed to make of a superior court a justice's court they could do so; if the parties named upon the record chose to eliminate the state as a silent party they could do so ; and this they do when the record and the pleadings are waived. This view of waiver is an enlargement of tbe operation of Consensus tollit errorem, which enlargement immolates the trilogy of procedure, and brings upon governments the condi- tion in Missouri and Illinois.^* 12— llallinckTodt, L.C. 12a, 3 Gr. & Hud. 13 — See Theory of the Case, -1 Gr. & Bud. 302 EQUITY IN PKOCEDUEE §371. The Court Held That Pleadings Are Essential for Ees Adjudicata Pukposes." — They are for more purposes thaa to "apprise the adverse party" ; consequently, to state this alone and emphasize it alone is misleading, as appears in the first Code case, namely, Biddle v. Boyce}^ Pleadings defined and held essential to raise an issue.^® Facts must he pleaded ; conclusions will not do." Fraud — facts showing must he pleaded.^* The facts constituting the protest of commercial paper must he pleaded, and not conclusions of law.^" Appellate procedure depends upon its necessary means, else it would fail. For appellate purposes, facts must be juridically presented, else they cannot he judicially considered.^" "But a motion for a new trial may be as unspeeific as the ingenuity of a defeated lawyer cin find language in which to conceal what he really means." Fage v. Mneberg (1902), 95 Mo. Ap. 127. Still, the court required a motion for a new trial, and an assignment of errors thereon. Uno absurdo dato infinita sequuntur. § 372. The Right Record Must Present the Facts, Which. Must Appeab Thebefkom. — The necessary facts must appear from the right record, else the court is not invested with juris- diction of a suhject matter. A court is bound by its record. The forms of the law are a part of the law.*^ § 373. Constructive Notice Is a Conserving Principle of Peoceduee and Depends Upoh Certain- and Supeicient Eecokd Mattees.^2 The statutory record is essential for its purposes.^^ Lack of exception to error is fatal. The court will not open a record 14_0ffut, 8 Mo. 120, 128; Brown, 10 Mo. 56; Toriley v. S., 13 Mo. 453; S. v. Mueneh (1909). 15— (1850), 13 Mo. 532; K. C, 34 Mo. Ap. 439. 16— Pier, 52 Mo. 333; S. v. Mueneh (1909); Lanitz, 93 Mo. 513. 17 — Barry, 3 Mo. 372 (To set aside a default in the evidence must be pleaded). 18— Nichols (1894), 123 Mo. 96, 45 Am. St. 514. Contra: Pemberton, 6 Mo. 59; Edgell, 20 Mo. 494. 19 — Pier, 52 Mo. 33; Lanitz, 93 Mo. 513. 20 — Crane, 7 Mo. 285 (with note citing a score of cases). 21— Milling Co., 222 Mo. 306 ; 70 Cent. L. J. 402-407. 22— Clark v. Sires, 193 Mo. 502, L.C. 26, 3 Gr. & Eud. ; Benton County v. Mor- gan, 163 Mo. 661. 23— Gale, 6 Mo. 253; Dickey, id. 186; Dobson, id. 599; Crane, 7 Mo. 285 (citing cases); Fulweider, 216 Mo. 582, 591 ("What ousht to be of record must be proved by record and by the right record") ; Eoussin, 15 Mo. 158. ILLUSTEATIVE CASES 303 further than to see that appellant submitted to a nonsuit and did not move to set it aside.-* Consent to error obviates its effect. Consensus tollit errorem quoted and forcibly applied.^^ By failing to demur one waives the right to demur, until the stage is reached for filing a motion in arrest.^" § 374. Frustra Probatur Quod Probatum Non Relevat.— See trilogy of procedure, supra. Its maxims interlace.^^ "The theory of our Code is that the facts in a pleading are constitutive and in order to be proved, must be alleged." Pier, 52 JIo. 333; Hudson, 101 Mo. 13, 30: Sush, 101 Mo. 5S6 (Barclay, J.); Sidway, 163 Mo. 342, 375; J)avis, 126 Mo. 69, 75. "Every substantial fact which the plaintiff, in order to recover, must prove, he must also allege so that an issue can be made thereon." Lanite, 93 Mo. 513: Sidwav. 163 Mo. 375. ' ^ § 375. Statutes of Jeofails Are Affirmative Statutes.— C & A. R. R. V. Clausen.^^ Codes reaffirm the old law, Andrews v. Lynch.^^ ' ' Omission of material allegation not cured by statute in cases of default in Revision of 1845, p. 827."^'' § 376. Limits of Liberal Construction Are Found in Rushr TON v. AspiNAixL.^'^ — What is not properly denied is admitted, and this admission of record is conclusive.^- The discussions over the admission in pleadings and the denial in pleadings in- clude a wide and variant range.** Certain and specific denials are the genius of a Code. Plead- ings are to limit issues and to narrow proofs, inter alia}*' However, the general issue is much countenanced in Missouri.*' § 377. Verba Fortius Accipiuntur Contra Proferentem: Every Presumption Is Against a Pleader.*" — This rule has not 24— Crane v. Daggett (1846), 10 Mo. 408. 25 — Lane, 11 Mo. 408; County v. Corlew, 3 Mo. 12 (irregularities of appeal •waived) ; Cane, 5 Mo. 59 (pleading over waives notice) ; Fulweider, 216 Mo. 582, 591 ; "Warner, 13 Mo. 455 (waiver extends to matters of substance). 26 — Bury, 12 Mo. 298. See Lane, 11 Mo. 408, supra. 27— McCarty, 144 Mo. 397, 402; Mallinckrodt, L.C. 12o, 3 Gr. & Eud.; also Theory of the Case, 4 id. 28—173 111. 100. 29—27 Mo. 167 (Napton, J.). 30 — Neidenberger, 11 Mo. 361 (Napton, J.). 31— Smith Lead, Cas., supra, L.C. 5, 3 Gr. & Bud. S.P., Eoper v. Clay, 18 Mo. 382, 59 Am. Dee. 314, n.; Bush v. Brown, 101 Mo. 586 (Barclay, J.); Stennell v. Hogg, 1 Wms. Saund. 226-228, 85 Eng. Beprint, 244-248, n. 32— Wells V. Pike, 31 Mo. 590; Dare, 31 Mo. 480. 33— See Dickson, L.C. 34, et seq., 3 Gr. & Bud.; 48 L. B. A. 177, 217. 34— Bliss PI. 138. 35— See Illinois, 2 Gr. & Bud. 36 — Dovaston v. Payne, L.C. 217, 3 Gr. & Bud.; also 4 id. 304 EQUITY IF PEOCEDUKB been and cannot be cbanged.^^ Alleging a treasurer in office in 1841, also in 1844, does not allege a continuous tenure through- out and in 1842 and 1843. In other words, alleging one in office on two dates does not allege he was in office at all intervening dates.^^ Averring one was insolvent when a note matured avers that condition at all subsequent dates.^® One is presumed to state his case as favorably for himself as he can and as the facts will permit.*" § 378. If a Pleading Is Silent or Ambiguous, Every Pre- suMPTioN Is Against the Pleader.*^ — Verba fortius applies to affidavits,*^ also to objections made at trials as to the admissi- bility of evidence. Wherefore the rule, general objections are insufficient.** In Missouri this rule is applied with strictness and so far as to include irrelevant evidence.** This maxim has been applied in a wilderness of cases to the statutory record.*^ Where the trilogy of procedure is respected on the one hand and is denied on the other, there the conserving principles of procedure and their interactions upon the rules of evidence, pleading and practice are greatly disturbed. Ubi jus incertum ibi jus nullum. § 379. Pleadings and the Conserving Principles of Procedure Not Comprehended. — From Missouri decisions it is difficult to pick out this definition of pleadings, namely : "Pleadings are the Juridical means of investing a Court with Jurisdiction of a sul)- jeet-matter to adjudicate it." Bushton v. Aspinall; U. S. v. Cruikshank, L.C. 332, 3 Gr. & Eud.; Bush v. Brown (Barclay, J.), supra; MaUinckrodt, L.C. 12o, 3 Gr. & Eud., also in 4 id.; S. v. Muench, 217 Mo. 135, 129 Am. St. 536 (A judgment not supported by allegations is void) ; Campbell v. Greer, L.C. 2a, 3 Gr. & Eud. See Theory of the Case, 4 id. Nor can it be said that the conserving principles of procedure were comprehended and were made a nucleus from which pro- 37— See Theory of the Case, 4 Gr. & Eud.; TJ. S. v. Linn, 1 How. 104; 48 L. E. A. 177; Page v. Eneberg, 95 Mo. Ap. 127 (Contra as to motion for a new trial). 38— Marshall, 12 Mo. 93, citing 1 Chit. PI. 707; Dickey, 6 Mo. 186 (What i» not alleged is presumed not to exist. He non apparentibus) 39— Mullen, 12 Mo. 307; Biddle, 13 Mo. 532. See Continuitv, 2 Gr. & Eud. 40— Loehr, 45 Mo. Ap. 579; Wing, 15 Mo. 174. ^. ^}~^^l^^^' ^^ *^°- ^3; Dickey, supra; BlanTce, 35 Mo. Ap. 519: Clarke, » Mo. Ap. 436; Doddridge, 222 Mo. 146. r , , - 42— Lane, 1 Mo. 353; Lecompte, 4 Mo. 557. 43— Dickey, 6 Mo. 177, 186. ^■trS^V'^'P ^°- ^^^' barber, 139 Mo. 284 (Theory of the ease doctrine will pennit this). See Shutte, L.C. 291, 3 Gr. & End. 45— Magellan, 7 Mo. 42 (Napton, J.); Hughes, 5 Mo. 110; Crane, 7 Mo. 285 r cases; Greenia, 14 Mo. 528; Wing, 15 Mo. 174. ILLUSTEATIVE CASES 305 cedure must be unfolded.*" Nor was it perceived that no log-ical^ nor philosopliical system of procedure could be estab- lished in disregard of the conserving principles of procedure and of the trilogy of procedure, nor was it perceived that all of these matters were interactions with the due administration of the laws. Nor were the functions of the mandatory record in a government of protection clearly perceived. This fact will appear from loose and, indeed, degenerate views of this record. Thereby the statutory record was often made a substitute for the mandatory record. The way for this was paved when the mandatory record was only available in appellate prgcedure, collateral attack and for other conserving principles, to the ex- tent a motion in arrest was filed. In view of these observations, and as a logical consequence thereof, it is defensible to say that the mandatory record became surplusage if no motion in arrest was filed, exactly as the statu- tory record becomes surplusage, except to the extent there is a motion for a new trial, and an assignment of errors founded thereon. § 380. Mandatory and Statutory Records Confused.— From these deductions it should be added that no higher view of the mandatory record was taken than this, that its function was to assemble the suitors and witnesses and that these would dis- cover something and start it going, and that therefrom some- thing could be caught, and from this almost anything could be carved out and set up, this to stand as an adjudication unless restrained or modified by the filing of a motion in arrest.*'' The enlargement of the functions of a motion in arrest, and of the statutory record, became as stumbling blocks and pitfalls throughout all the depths and intricacies of procedure. Conse- quently this leading branch of the law passed beyond human capacity in Missouri, also in other states that departed from the fundamental principles of jurisprudence.*^ §381. Origin of Fundamental Law Not Perceived.— The decisions can be cited to the effect that the fundamental prin- ciples of procedure are not deeper than statutory laws, and that 46— §i 83-123, 1 Gr. & Eud. 47 See 2 Thomp. Tri., §§ 2310, 2311 ; Variance, 4 Gr. & Eud. 48 See Preface, Datum Posts, vol. 3 Gr. & Eud.; Pennowfsky, 205 Mo. 135';' S. V. Jlueneh (]909), 217 Mo. 135, 129 Am. St. 536; Doddridge (1909), 222 Mo. 146.' 306 EQUITY IN PEOCEDUEE the fundamental requirements of procedure can be altered or abolished by statute; that the trilogy of procedure could be varied or changed or disregarded. This trilogy may be stated to be: 1. Ve noil apparentihus et non existentibus eadem est ratio: Where the court can- not take judicial notice of a fact, it is the same as if the fact had not existed,, or in other words, what is not juridically presented cannot he judicially con- sidered, much less decided and disposed of. 2. Frustra probatur quod probatum non relevat: It is vain to prove what is not in question or what is not alleged and denied, or in other words, allegata et probata- must correspond. 3. Verba fortius accipiuntur contra proferentem: The words of an instrument are to be taken most strongly against the composer, or every presumption is against the pleader. From these fundamental rules from antiquity, the next may be viewed as a cognate, namely : "What ought to be of record must be proved by record and by the right record." § 382. The Same (continued) .—Had the simplicity, morality,^ the usefulness and convenience of the above rules been rightly imderstood, the statutes we next quote would never have been construed as they were. Relating to these statutes, we quote from an opinion, as follows: "Fifth — On this point it is sufScient to say that the point was not made before the Circuit Court. In the Supreme Court, it is provided that no exception shall be taken in an appeal or writ of error, except such as shall have been expressly decided in such court." Cornelius (1843), 8 Mo. 59; Taylor, 8 JIo. 701 (applied to a general demurrer and motion in arrest) ; Livengood v. Shaw (1847), 10 Mo. 275 (cited Eev. Code, 1845, p. 906) ; Long, 13 Mo. 4, 6 (Birch, J.). "1. When a party has been summoned as a witness, in accordance with the revised statutes, 1855, p. 1577, and fails to attend, it is no error to strike out his plead- ing and to enter judgment against him." Haskell v. Sullivan (1862), 31 Mo. 435. Cf. Windsor, L.C. 1, 3 Gr. & Eud. ' ' 2. The supreme court will not entertain a motion in arrest of the judgment of the- inferior court. ' ' SasTcell, supra. " (p. 437) After the judgment of the supreme court, the appellant's counsel filed a motion in arrest of the judgment, for the reason that the petition did not state facts sufficient to constitute a cause of action, and cited Eev Stat. 1855, pp. 1231, 1232. "The court refused to entertain the motion, no precedents being shown to authorize such practice." (Note p. 437) "But for error apparent on the face of the record a court of error will reverse the judgment of an inferior court, although no exception be taken therein (See West v. Molloy, 9 Mo. 167 ; McGee v. S., 8 Mo. 495 ; Carr v. Edwards, 1 Mo. 137; Slacum v. Fomery, 6 Cranch, 221, 4 Gr. & End.'). Eep! Haskell, supra." § 383. The Mandatory Record Will Be Opened Only to the Extent Ebquieed by a Motion in Akrest.*' — Other cases reduced the all sweeping provisions of the statute of Jeofails to a 49— Warren, 13 Mo. 455; Davis v. Colt, 31 Mo. 531; Jaecard, 32 Mo. 188 (motion in arrest was made) ; Griffin, 6 Mo. 50 (matter of motion in arrest can bo waived); Rogers, 186 Mo. 248 (General demurrer can be waived). ILLUSTRATIVE CASES 307 reductio ad ahsurduin, by holding that these statutes applied to formal defects oii]y.«» In later cases the tendency was to restrict the statute within fundamental law.^^ The court has rarely cited the maxims of the above trilogy ; indeed, where they have cited them, the writer is unable to find. Counsel cited Rushton in Billings f^ Napton in Andrews v. Ujnclv"' reaffirmed Rushton, as did also Campbell v. Greerr^ But the trend of the decisions justifies the conclusion that the fundamental principles of the law imbedded in the maxims, and the notable old cases illus- trating these maxims, do not appear to have been understood- The origin of principles was thought to be statutes and the decisions of the court. Stephen's Pleadings, so often cited in Illinois and Missouri, is a misleading work. To illustrate: If a formal defect is waived, it is waived instantly and forever.^" This policy of waiver in aider by verdict is ascribed to statutes.^^ Plainly Consensus tollit errorem was not understood. Bristoiv V. Wright was correctly cited and applied in Dunlap.^^ Bristow is a case Judge Seymour D. Thompson did not understand.^* Dovaston v. Payne, while not cited by name, yet its rule, "Every presumption is against a pleader," was followed. Mar- shall, 12 Mo. gs.^o The theory of the case as advocated by Judge Seymour D. Thompson*^ might well find a footing where the statute above quoted was upheld; and also in cases where an answer could arise from the evidenee.*^- 50 — Siflway, 163 Mo. 342, 373; Saxton, 98 Mo. Ap. 494; and this was the view in C. & A. B. E. v. Clausen, 173 111. 100; 1 Mo. 137; Daris, 126 Mo. 69, 78. 51 — Bush V. Brown, 101 Mo. 586 (Barclay, J.). Cf. Pemiscot County, 104 Mo. 26, 32-34 (dissenting views); Humphreys, 98 Mo. 542; Boden v. Helm, 192 Mo. 71 (Barclay, J.) ; Mallinckrodt, L.C. 12o, 3 Gr. & Bud. See also Eoper v. Clay, 18 Mo. 382, 59 Am. Dec. 314, n; Andrews v. Lynch, 27 Mo. 167 (Napton, J.). 53—32 Mo. 265. 54—27 Mo. 167. 55—197 Mo. 463. 56— §§ 53, 103, 1 Gr. & Bud. 57— Steph. PI. 150. 58—105 Mo. Ap. 1, 5, 7. 59 — See Jlissouri, also Variance, 4 Gr. & Bud. 60 — Mullen, 12 Mo. 307; Biddle, 13 Mo. 532. See Verba fortius, post; Dodd- ridge, 222 Mo. 146. 61—2 Thorap. Tri., §§ 2310, 2311. 62 — Dozier, 30 Mo. 216. Matousek, 192 Mo. 588, 596 (plea of Ees adjudicata established from conclusions of law and forensic oral admissions). Contra, Wilson v. Darrow (1909) ; Hof, 213 Mo. 445, 469; S. v. Fasse, 189 Mo. 532, 537 (Conduct in supreme court supplied essential record facts). See Missouri, Vol. 4, Gr. & Bud.; also Theory of the Case and Variance, id. SOS EQUITY IN PEOCEDUEE Again the court defends with great force the rule "What