:ncush CtE^EbKP93 w ahcric MAXIMS A NISf ^ENCRAI. PR9NCIFt.gSI (llnrnpU Slam §rl|onl IGibrata Cornell University Library KF 386.H89 The law restated :the roots of the law, 3 1924 018 811 855 Cornell University Library The original of tiiis 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/cu31924018811855 The Law Restated THE ROOTS OF THE LAW Where they are found and best illustrated in both the old and the latest cases The Great Maxims, General Principles and Leading Cases The SIX LEADING SUBJECTS in MINIATURE Equity, Procedure, Contract, Crime, Tort and Construction. The elements of these aligned and reflected from a Text-Index constituting ready reference and a MASTER KEY to the library The interactions of the six leading subjects The Fundamentals of Procedure: These followed into the Code (See Quis, quid :) These illustrated by the ablest New York cases, also Federal An Epitome of Great Legal Classics The student's guide to these By WILLIAM T. HUGHES Author of "Procedure," Grounds and Rudiments of Law," and "Equity In Procedure" With an Introductory Chapter by WENDELL PHILLIPS STAFFORD Judge of the Supreme Court of the District of Columbia, formerly a Justice of the Supreme Court of Vermont The Roman still holds dominion over this world by the silent empire of his law Melius est petere fonies quam sectari rivulos. (See Alterum non Icsdere.) PUBLISHED BY THE AUTHOR FOR SALE BY ALL BOOKSELLERS l&lo^^f<0 Copyright Dy William T. Hughes and A. E. L. Leckie 1915 PREFACE A restatement of the law from its maxims, general principles and leading cases has been long awaited. Many think it will come in the next half century. Anent this great question enough has been said in a general way ; the time has come to get down to bed rock facts and see if there are not now some "Datum Posts" that can be agi-eed upon, fixed, and therefrom a preliminary survey made. These pages are burdened with that demonstration. For this we choose the six leading subjects of the law. Equity, Procedure, Contract, Crime, Tort, and Construction, and for each pick out and gather from overtoppling bulks of matter the data above referred to. For each of these subjects we pick and gather and set the leading matters of substance that has not been changed and which cannot be changed (page xvii. Equity In Procedure) and intro- duce these with the least amount of formal or adjective law as it has come to be called. Each of these subjects has a law of substance that is protected by a higher law — the law of all ages — the Prescriptive Constitution ; also that each has interactions with the other. To demon- strate this latter fact we pick and discuss the greatest maxim of juris- prudence (AUerum non laedere, as we call it for brevity) and from it show Equity In Procedure; also the other subjects. Anent Crime we indicate a close relationship to tort and to contract (See R. v. Cases). The opening pages are prefatory and therefore we can be brief here. This restatement will present all of the major-organic maxims in which the law is embedded, and general principles and leading cases. We offer it as the best and most portable condensed history of the great cases. The elaboration will be attended with a bibliographical effort to point to the ablest and fullest resume of all of these essentials as they can be found in all libraries, English and American. The effort is not for local or provincial use but for all countries. To illustrate': We shall point out that the best statement of Pasleij v. Freeman which has been reprinted so often in England and in America is most ably repre- sented in Davis v. Trent, — la. — , 49 L.E.A.(]ST.S.) 1219, 1224; also that the ablest statement of the matter to be presented by the mandatory record in the criminal case is in Gray v. P., 261 111. 140, 49 L.R.A. 3 4 PEEFACE (N.S.) 1215. For the presentation we shall pick from the old — ^the archaic, also the latest. (See Garland v. 8; Garrett; Momingstar.) Under Alterum we indicate that the law can be articulated from a few principles. As we look at the map and see the Rhine and its twelve thousand tributaries, so in a few sections we present the main stream and by means of the Text-Index sprangle out until we touch and inte- grate the entire body of the law. We might also illustrate with the tree, its roots, .trunk, limbs on into the stem, leaf, and bud. We shall present all, at least Broom's Maxims, Smith's and White and Tudor's leading cases, the principal annotated cases, the leading rules of Story, of Green- leaf, of Bishop, of Mechem and of other of the best eilorts ever made for the uplifting of the profession. The manifest efforts to stamp out the text-books in the last generation are now followed by addresses in Bar Associations of which every student should take notice. After informing himself, then he can see if this generation of lawyers have not something to ponder over. (See Story; Rushton; Alterum; Litera- ture, and the matters referred to under these titles.) In reference to the above titles facts are stated and matters are re- ferred to which allow us to ask if there is one good work on Pleading, or the Code, and if there be one, which is it ? ( See Pomeroy ; Feudal Lawyer. ) Procedure lies at the base of a logical and philosophical adminis- tration of the laws. Therefore the importance of Pleading. From these facts the above questions are of great significance and of far- reaching consequences. (See Story; Rushton; Gulling.) The practitioner will be introduced to the genius, the logic and the philosophy of the mandatory record ; how it arises from necessity in a constitutionalism; how it is dictated by the logic and the philosophy of the Trilogy of Procedure (see §§ 1-13, Eestatement) ; how these major maxims of the law demand and safeguard this record, which if obscured and silted over by statutes and decisions destroys all symmetry and harmony in Procedure and hereby spreads chaos throughout the whole law. This view necessarily includes questions that are not one Babel alone, but a hundred more ; and such as the distinctions between this record and the statutory record which very able courts declare can- not be taught their practitioners. (PennowfsJcy v. Goerver, Mo.) It cannot be said that the leading courts in American states have so de- fined and explained the respective functions and operations of these two records that their logic and philosophy have been understood. Nor PEEFACE 5 has one Feudal or blackletter author. (The failure of Blackstone is referred to § 15, 1 Gr. & Kud.) The mistakes of practitioners over the uses of these two records are the most prolific sources of fatal error and of delay in Appellate Procedure. Light over these records and their respective uses is needed in all American courts. With a clear under- standing of the latter fact we have sought to give the required elucida- tion. We think that many will accept this effort alone as a Eestatement of the Law, Grasping and defining the organic principles of Procedure and demon- strating these to be Universal, Constitutional principles underlying all systems, including Codes and Practice Acts, yields the mastery so long sought. These principles are shown to be the trunk wherefrom the various kinds or systems issue and are extended by local and fiat laws. The roots and the trunk are the same, but the grafts may be somewhat different in detail or regulation. Especial attention is given the Code. For it we pick from the mass of confusion in New York three of the best considered cases namely: Campbell v. Consalus, Clark, v. Dillon, and Tooker v. Arnoux and point out that these cases and their cognates reaffirmed the roots-organic maxims referred to, and that to these most worthy cases have lately come Palmer v. Humision, 45 L.E.A.(]Sr.S.), and MiTbra, 46 Id.; and that these cases simply reaffirm the old principles and best cases {BusMon, Bristow, and Dovaston) . Also that the Municipal Court Act of Chicago has finally come to be construed by the same tests {Walter, 250 111. 420). Also that late Federal eases sustain the same views. (See Nolle v. Oyster; Vicksburg v. Henson.) These show that the old law of substance is still with us, also that the modem law is the old law. By the above plan we weave the Codes and Practice Acts into or deduce them from the trunk referred to. (See title, Code.) And accordingly we demonstrate the unity, the logic and the plii- losophy of all systems and elaborate a work for all jurisdictions. It is cosmopolitan. It is Eoman, English and American. It cites a multitude of Federal cases. It reduces as far as possible the old matter to the late and current series of annotated cases. The popular and widely found L.E.A. has been much sought and cited. Thus we have presented much in a bibliographical way for the student. The author's Key-Number plan embraces all books — the Eoman, 6 PEEFACE the English and the American. (See Hughes' Procedure Vol. 1, pages 44r-46; Callaghan & Co. 1905.) Afterward a part of this idea was appropriated as an accessory of utility to a vast digest system. It is submitted if this was not a detraction from the broader plan. (See the title "Finding the Law" in the Text-Index.) Attention is called to the value of the author's Text-Index as a neces- sary means for this Restatement of the Law. It is a concentrate of maxims, principles and cases all set under an alphabetical plan. Believing that this effort would appear pretentious and even Utopian, to some minds, assurances were sought; for this distinguished members of the Washing-ton City Bar were consulted. Among these were Mr. Joseph W. Cox, E. Hilton Jackson (see his ante publication letter) ; also one who is a lawyer, jurist, author, orator and poet. His introductory chapter will speak for itself. We know that it will be accepted as a crowning charm of the offering. We have reason to believe that a generous profession will give this Maximus in minimis deserving attention. We can assure them that we have sought to serve them faithfully and well, as we always shall. W. T. Hughes. Washington City, D. C, February 2, 1915. RESTATING THE LAW FROM ITS FUNDAMENTALS The Universal, Constitutional principles in the language of all nations picked and aligned. These are the * 'Datum Posts." See Maxima ita dicta, etc. The leading subjects of the law rest upon a few principles : These picked, enumerated and defined. See Multi utilitus est pauca, etc. CODES AND PRACTICE ACTS ARE FOUNDED ON THE OLD LAW The mystery of the Code laid bare. Its great cases introduced. THE TRILOGY OF PROCEDURE ENUMERATED AND DEFINED The cases that illustrate its application. The great principles and their literature. The great cases and their literature. The principles in leading cases indicated. A Text—Index of the maxims, general principles and leading and annotated cases. Herein the few fun- damentals are worked out. 1 "The law is founded upon a few fundamental principles well comprehended and worked out." — Adelbert Moot. "These should be clearly expressed and defined; they are the law of all ages. They are the law of substance which control local and fiat law." — James C. Carter. Melius est petere fontes qxuim, sectari rivuloa, 8 THE LAW RESTATED By William T. Hughes. IIsrTKODUCTOET CHAPTER By Wendell Phillips Stafford, Associate Justice of the SuPEEME Court of the District of Columbia, formerly a Justice of the Supreme Court of Vermont. The author of The Law Restated is not to be measured with the law- book makers of to-day. His intellectual descent is to be traced from the greatest in the past. He is a disciple of Bacon, maintaining with him that the body of English law came from past ages, largely through Ro- man channels ; that it is capable of concise statement, and has been thus stated in the Latin maxims, constituting on the whole the most compre- hensive and clear-edged summary of fundamental law ever given to the world; that by such a summary the law is best taught and to it all questions are finally to be referred, no matter how remote the deduc- tions at first sight may appear; and above all, that -Equity, which is the very life principle of the maxims, is not a mere incident or department of the law, but a moral force pervading all its parts, — not a separate stream, but "a river without a main" finding its way, underneath the surface, through the whole field of law, and certain in the end to super- sede all narrow and conflicting rules by virtue of its own intrinsic superiority. He also believes with Bacon that the main body of the law when thus stated and taught should be accompanied by the leading cases which best illustrate the application of the principles, and which may be made to carry any subject of the law into the most distant and minute divisions, exactly as a tree spreads out into innumerable branches, twigs, and leaves. One who will dwell patiently upon this 9 10 THE LAW KESTATED view of the law as an entirety, and allow himself to be shown how closely its leading principles are related, one to another, and how rules and decisions which he had been accustomed to regard as standing by themselves are really only different expressions of the same general truth, will not be inclined to blame the author for glorifying the maxims as he does, nor for repeating them with a fervor and fre- quency which must be tiresome indeed to one who fails to perceive their philosophical connection. To the author himself they are stars that shine by their own light, — couriers who carry in their messages their best credentials, and which nobly illustrate the motto, "jSTot authority for truth, but truth for authority." To him it is no objec- tion that they are hoary with age. As Pater wrote of certain portions of the Eoman liturgy, " ' We are so old and you are so young,' they seem to say to those who fail to understand them." They are ven- erable not with years only, but with world-long usefulness as well. Far more modern in their spirit than those doctrines of the common law with which they came in conflict, they have overcome these by their own primal and still youthful vigor, — in England through the slow but complete triumph of equity over law, and in America by express statutory declaration that when the legal and the equitable principles are opposed, the equitable must be followed. Equity is to the law what the ISTew Testament is to the Old. That there should be any active conflict between them is only due to the failure of legal minds to accept the broader and better rule, — the too-common in- ability to keep step with human jorogress. Maxim-law — Equity — is thus at the same time very old and very new. It is new, as all truth is fresh and perennial; it is old, as having approved itself to men of old time, and as having found clear and masterful expression on their tongues. We cannot hope, we do not need, to state the old truths bet- ter. There are some things — the Golden Rule, for example — that are not capable of improvement. The same is true of the golden rules of equity. How shall one ever find intellectual happiness in the study of the law, unless he can find there some principle of harmony that can bring order out of chaos ? Never till then can the morning stars mTKODUCTOKY CPIAPTER 11 sing together and all the sons of wisdom shout for joy. If there be such a harmony, and there must be if the soul of law is justice, then it is only reasonable to suppose that the main body of truths that com- pose, it is capable of luminous expression and has found such expres- sion in the past. When, therefore, we find sentences that have sur- vived the deaths of empires and retain their power to mold men's thought and action under every sky, sentences that are scattered through every volume of the law, is it a Quixotic effort to attempt to bring them all together, to arrange them in their natural order and relations under the leading divisions of the law, and to offer them as a compendious statement showing the "truth, unity and concord" of jurisprudence? If such a restatement of the law in its entirety, occupying less than fifty pages, be supplemented by a text index for ready reference, wherein the searcher may find his way at once to the principle which directly controls or is most nearly related to his question, and to those cases where the ablest courts have been engaged upon it, — cases around which annotators have amassed the wealth of decisions that enrich the subject, — shall we not have been offered the best handbook, the best starting-point and guide, the best key to the library, and the best solution thus far found to the problem that con- fronts the lavsryer of to-day ? ■ The mass of case law is crumbling under its own weight. Not only is it impossible to master it, it is not desir- able even if it were possible. What we do want and must have is a text of universal principles from which we may start and to which we may return, with plain and reliable guideposts to those great historical decisions from which, by the help of annotations, we may extend our exploration as far as we may need. The author for us is the one who places in our hands the silken thread that will lead us back from any winding of the labyrinth to the central principle, and show the con- nection between that universal truth and the dimmest corner or recess our search has found. I wish to speak briefly of the author's presentation of the great sub- ject of procedure. Here, too, his view is deep, searching, and clarify- ing. Procedure, he rightly insists, is the backbone of the law. The 12 THE LAW EESTATED study of procedure is nothing less than the study of government. Due process of law includes a constitutional method of procedure. Not all requirements of such a procedure are expressed in the written consti- tution. Many of them are implied, but not less sacred and manda- tory. A court must have a record and he bound by it, or else there is no protection against the exercise of illegal and arbitrary power. The clerk is a constitutional officer, because contemplated by the con- stitution as the proper officer to make up and keep such a record. The record shows the authority or want of authority in the court to proceed to judgment. If the authority can be presumed from the mere fact of its exercise by the judge, or gathered merely from the judge's own recitals in his judgment, his authority is beyond attack, and the party's rights are entirely at his mercy. Such is not the law. His jurisdic- tion is limited and defined by the pleadings. It must appear from the record that there was an issue before him, proper to be tried and within his authority to determine. He cannot act in court as an arbi- trator. The consent of the parties cannot confer jurisdiction as to the subject-matter. His authority is derived from the law. Therefore the parties cannot dispense with pleadings altogether, nor waive them to any such extent that the foregoing requisites need not be observed. The record exists not for the parties only, nor indeed primarily, but first of all for the State and the public. The same considerations require that the complaint shall disclose a cause of action. Courts are established to right wrongs, and the complaint must show that a wrong has been committed. It must also disclose who is the party wronged and who is the wrongdoer. To say that such a complaint may be waived by the defendant is to say that a party may confer upon the court jurisdiction over a subject not committed to the magistrate by law, or dispense with a record which the State requires for its own purposes. The rights of the public are concerned because they are bound by constructive notice of the proceedings, and are entitled to a record whereby they can ascertain the facts of which they must take notice. The State and the public are entitled to a substantial record for the further purpose that it may always be known what was decided INTRODUCTOEY CHAPTEE 13 in A former case, when it is claimed that the same matter is being drawn in question a second time between those who should be bound by the first decision. The State is interested that there be an end of litigation, and that the judicial machinery shall not be used over and over again for the same question. It is also known as the common-law record, or record proper. In this record are preserved such facts, and such facts only, as are neces- sary to show jurisdiction of the court over the parties, and over the subject-matter described in the pleadings; also a verdict, judgment, or decree within and founded upon the issues raised by the pleadings. Anything beyond this may be waived by the parties. This nonjurisdictional, or waivable, or error matter must be pre- served in and be shown by a separate record, the statutory, or bill of exceptions, record. This record is for an appellant, and for appeal purposes only. It was unknown at common law. Jurisdiction once being established and shown by the common-law record, and not until then, the maxim. Omnia prwsumuntur rite, etc., comes into play, and under it all error committed by the court in the progress of the case is cured unless preserved by the statutory record, and error duly assigned thereon with precision and certainty. The author has brought to light the reason for the necessity of these two records, that is, that each is governed by a maxim peculiar to itself. To the mandatory record applies the maxim, Debile funda- mentum fallit opus. There is no presumption in favor of this record. It must affirmatively show its validity upon its face. But, jurisdiction once being thus established, the maxim Omnia prcesumuntur then applies, under which all further proceedings are presumed to be correct, unless error therein is affirmatively shown and duly excepted to. It is to this record that the doctrine of waiver ap- plies, not to the common-law record, where the interests of the State must be met, and cannot be waived by the parties nor be overlooked by the court. Perhaps the highest single service the author has rendered has been by making plain the "great giilf fixed" by reason and the needs li THE LAW EESTATED of government between the mandatory and the statutory records. So far as I am aware, he has been the first to adequately state and defend the grounds upon which that distinction rests, and to show that free constitutional government itself is bound up with the essentials of procedure; that as the law arises out of the facts, the facts must always appear that justify the judgment; that the inter- ests of the State require it, and that the parties cannot bargain it away. This is the great forgotten truth which he has brought to light, and has illustrated with a clearness of comprehension and a wealth of learn- ing that place him among the greatest legal authors. The alarming extent to which this distinction has been lost sight of is shown by the long array of cases criticized in these works, some of them emanating from tribunals of the greatest importance. ISTeither are the recog- nized writers upon pleading free from confusion and inconsistency upon this point, a fact to which much of the contrariety of decisions must be traced. Let him who is not to be awed by reputations read the author's criticism of Chitty, Stephen, and Gould at § 113 and following of his work entitled Equity in Procedure, and ask himself if the criticism is not sound and just, and whether the author has not pointed out in Sergeant Williams's misleading note the little rift in the lute which has led to all the discord that has become so painful. If any matter of substance can be waived, why cannot all be waived ? Where is the dividing line, if not between form and substance ? The courts of many states have followed the false premise to its logical and violent conclusion, and have held that all pleadings may be waived. Such is the condition to which we have been brought upon a subject which involves life, liberty, property, the rights of the citizen against the exercise of arbitrary power, — even the existence of constitutional government itself. Another mark of this man's writing, and one which cannot be too highly praised, is the morality which runs all through it like a thread of gold, giving richness and luster to the whole web. He never fails to show that the law is, in its controlling purpose, ethical, and not for- mal merely. Again and again, and not seldom where we should least INTEODUCTOKY CHAPTER 15 expect it, we are taught that the minor maxim or the familiar rule is only a phase of a broader rule, expressed in terms that leave no doubt of its relation to fundamental truth and justice. Pie himself has lived so long in the companionship of the great maxims that he instinctively judges of all questions by them; and the result is that his view has a soundness and wholesomeness not otherwise to be obtained. This I say not only from a study of his works, but from hours of conversation in which I have watched his mind as it grappled with practical ques- tions then first propounded to him, and observed the celerity and certainty with which he handled them, always finding their solution in the proper application of fundamental principles, and at the same time pointing to the leading illustrative cases. His ethical quality is shown not merely by his intrepid attitude towards decisions and texts that are responsible for the chaos into which the law has been thrown, but by the fairness and candor with which he treats those to whom he is most strongly and consistently opposed. He has a passion for accuracy, realizing that, no less in law than in religion, it is the truth that makes us free. His life has been a singular example of the power of a great idea, which can subdue unto itself all personal inter- ests, and make the whole man its herald and protagonist, willing to spend and be spent for the truth which it has been given him to see more clearly than his fellows. He "sees law steadily, and sees it whole." He is the apostle of the unity of law and the sanctity of con- stitutional procedure, — a doctrine which is to some a stumbling-block and to others foolishness, but to those who are able to comprehend it, both the power of law and the wisdom of law. • Now a few words by way of illustration. The author's whole view of the law is related to that maxim which has been aptly called the G-olden Eule of Jurisprudence: Juris prcecepta sunt hwc, honcste vivere, alterum non Icedere, suum cuique tribuere: The precepts of the law are these, — to live honorably, to hurt nobody, to render to everyone his due. . "To hurt nobody," — alterum non Icedere, — that is the precept which must appear to have been broken before any court has a right to call upon one individual to answer to another. Conse- 16 TI-IE LAW EESTATED quently the plaintiff must state in his complaint facts, which, on their face, show that a wrong has been done to him, and done by the defend- ant. If he fails to do so, the court has no authority to proceed. Its jurisdiction does not attach; it cannot be invoked by anything less; there is nothing for the court to act upon. The test of the complaint is the general demurrer. That is only a means of calling the atten- tion of the court to the fact that there is nothing for the court to act upon. The court of its own motion may take cognizance of the situa- tion, and refuse to proceed. It ought to do so if it observes the plight in which the case stands. ISTo lapse of time, no failure to raise the question, can mend the matter. Even by express consent the parties cannot give the court jurisdiction over a subject-matter which the law does not recognize as sufficient to call upon the court for action. Hence it follows that the general demurrer cannot be waived. Our author leads us at once to this fundamental truth, and shows us where runs the dividing line between matter that may be waived and matter that cannot be waived. His teaching is fundamental, logical, sound; and if it had been followed by decisions everywhere we should have had a sane and consistent procedure, instead of the wilderness of contradic- tions that has taken its place. Therefore if you have a question of pleading, turn to his pages upon this subject, and get your bearings by the fixed stars. By these you can determine how far any particular court in any particular decision has gone astray, and even if you can- not hope to overrule the decision you can at least have the satisfaction of discerning the truth and of stating it, as a lawyer is bound to do. Better still, you may be able to prevent any further departure from reason, and to arouse a just appreciation of the subject. You will find the matter of pleading dealt with as an expression of substantive law. You will learn the relation of the general demurrer to appellate procedure, collateral attack, res adjudicata, and due process of law and be shovm the interest the State has in matters of procedure inde- pendently of the interest of the parties to the proceeding, and that the interest of the State is beyond the control of the parties cannot be conceded away by either, nor by both. You will find a demonstration INTEODUOTOKY OHAPTEE 17 that all the above subjects have interactions, and that they all run back to the fundamental maxim, AUerum non Icedere. This illustrates my meaning when I say that the author's works are not only logical and philosophical but also profoundly moral. The truth he teaches upon this subject, although it is as old as jurisprudence, will be to many lawyers a new discovery, — an element as rare as radium, and one that will be found as precious and as powerful. Or suppose your question relates to Fraud or Illegality. You turn to those titles in the Index, and are pointed to the maxims and cases that will serve you as keys and guides. You find. In pari delicto potior est conditio defendentis, and Ex dole malo non oritur actio, with their cognate maxims and their illustrative cases, and are referred to the appropriate sections of the Restatement itself. Here you will have in hand the clues to the whole library. If your case involves the prin- ciple that no one can act where his integrity and his interest are in conflict, before wasting your time over a search for cases as nearly like yours as possible, in their accidental circumstances, you will look at Agency, Trustees, or Equity, and be pointed to the major maxim, Idem agens et patiens esse non potest. Therefrom you will be led to the most important cases and the best discussions of the principle in opinions, text-books, and annotations. The same course is to be pur- sued if you are interested in the law of Assent as applied to a contract, or in the Liability of Infants, or the liability of a husband for the debts of the wife. If you are concerned with Eemoteness or Privity of Causation, these topics will conduct you to In jure rum remota, to the Squib Case and exhaustive resumes of this important principle. The law of Intent in Crime will be looked for under the title Intent, and you will find your point of departure in Actus non facit nisi mens sit rea. And so on in other cases. It would seem to require no argu- ment to demonstrate the advantage of examining every question in the light of such principles, and of getting one's bearings, to begin with from the fixed and unalterable landmarks of the law. The value of any book depends largely upon the reader's familiarity with it and his habit of keeping it at his elbow, and of consulting it on every ques- tion that arises. Such a use of the present book will, I am confident, make good all that I have said. A Restatement of The Law From Alterum Non Laedere Embracing the great star and the rivulets below. From the fundamental immutable principles of liberty and free- dom, ignored by Imperialism and Feudalism (§ 21) and their off- shoots, Commercialism and its ally Empiricism. (See Feudal Lawyer.) Why the general demurrer cannot be waived ; the attitude of the state safe- guarded and vindicated by the Prescriptive Constitution. Tiie sources of attacks upon these pointed out and explained (see Literature ; also §§ 17, 21, 25, 26). The failure of the Feudal authors and their followers (§21); "Parliament is omnipo- tent," a misleading motto of Feudalism which has wrecked the Codes and Practice Acts; also the logic and philosophy of the law. The six leading subjects of the law — Procedure, Equity, Contract, Crime, Tort, and Construction — are embedded in the maxims of the Prescriptive Consti- tution. These named and explained. A CHAPTER OF MAXIMS, GENERAL PRINCIPLES, AND LEADING CASES Codes and Practice Acts discussed in the light of these and the best Federal Cases that can be picked and cited. The Rules of Res Adjudicata, Collateral Attack, "Due Process of Law," and Appellate Procedure, are shown to be paraphrases of the maxims. Codes and Practice Acts : Their Leading Cases Stated and Cited, Campbell v Consalus, Clark v. Dillon and Tooker v. Arnoux. The cognates of these cases Nalle V. Oyster, Vicksburg v. Henson, Sache v. Wallace, S. v. Muench cited there- with and explained. The "Theory of the Case" a euphemism. THE MYSTERY OF THE CODE REVEALED The universal, constitutional principles of all ages stated and discussed. Meaning of the rule that "What ought to be of record must be proved by rec- ord and by the right record. " This illustrated in the light of Afondei u. Steel, L. C. 77 etseq., 3 Gr. & Rud.; also Milbra, 46 L.R.A.(N.S.) 274, 277, 27^; Palmer v. Humiston, 45 L.R.A. (N.S.) 640; also Kewaune County v. Decker, L. C. 30, 3 Gr. &Rud. A TRUE DEFINITION OF PLEADING ALSO of the MANDATORY and of the STATUTORY RECORDS Herefrom Important Rules of Appellate Procedure. Pleadings are shown to be a jurisdictional element, and cannot be bargained away (Campbell v. Consalus), nor waived, nor legislated out of procedure. They are to limit issues and to narrow proofs THE MUNICIPAL COURT ACT FOR CHICAGO The errors of Sergeant Williams. Blackstone, Tidd, Chitty, Stephen, Pomeroy, and the Code authors that have followed the Feudal authors. How these have led into a Babel,— a legacy of bewildering: litera- ture that is laeyond human capacity. Melius est petere fontes quam sectari rivulos 19 CHAPTEE IL § 1. Organic Law Is Embedded in the Major Maxims. Major maxims are the fundamentals of the leading subjects of the law, which are Procedure, Equity, Contract, Crime, Tort, and Construction. Thus the fundamentals of the law are in Latin, the language of all nations, and, of course, of the great lawgivers, who organized the law and per- ceived its logic and philosophy. They are for all climes and all ages. (See Logic.) The few fundamentals from which the law is deduced are best expressed in the Latin. This may be perceived from what we shall demonstrate of Procedure, which rests on three major maxims that should be taught and well impressed. These we shall pick and set, and for brevity call the Trilogy of Procedure. They are: 1. De non apparentibus et non existentibus eadem est ratio: What is not juridically presented cannot be judicially considered, decided, or ad- judged. 2. Frustra prohatur quod proiatum non relevat: It is vain to prove what is not alleged. 3. Verba fortius accippiuntur contra proferentem: Every presumption is against a composer, or pleader. These are the major maxims of the subject; in other words they are the dominant initials from which the subject is deduced. They are the central ideas — the organic principles. They have mutual interactions, and from various standpoints they present phases of many minor max- ims. To illustrate : When we say that what one does not allege he can- not prove, we apply to him Verba fortiiiSj the third maxim above. When we say that the actor must prove his allegations (Adore non probante reus ahsolvitur, or Semper prwsumire pro negante), we also present phases of Verha fortius. Thus we see Veria fortius lying at the base of the burden of proof, one of the cardinal rules of evidence, which has vast ramifications. It is related to many rules of great importance to the practitioner. § 2. Ramifications of Verba Fortius; Observation upon Au- thors. Likewise we may trace Verba fortius, indeed the Trilogy of Procedure itself, into Res Adjudicata and all of its ramifications, as where Verba fortius is paraphrased thus: "Estoppels are odious and 21 22 THE LAW EESTATED are strictly taken" (see Vicksbiirg v. Henson) ; or thus: "Every in- tendment is against the estoppel." These are the State's rules of con- struction in vindication of its attitude as viewed from Interest reipuh- liccB ut sit finis litium. Herefrom it is disclosed that the general de- murrer cannot be waived ; that it searches the substantial pleadings, and attaches to the first fault even at the stage of collateral attack, as well as in Res Adjudicata and in tests for "due process of law." The Trilogy of Procedure are the tests of a pleading at all stages of the general de- murrer, at all of its correlatives, Avithout variableness or shadow of turning. (See Bouv. Die. Eawle's 3rd Revised ed. Title "Pleading".) A judgment is a contract, and as such its foundations are always tested by the general demurrer and its correlatives. Herefrom we see the Trilogy of Procedure bottoming the highest form of contract, to evince which the State demands a record which we call the mandatory record, which was never cleared and defined by Feudalism and its followers. This their works on pleading and cognate subjects will show. They have led away from the above logic and philosophy, and not to it. See Logic. The two records, the mandatory and the statutory, are a mire of bewilderment, from the Federal Supreme Court on down, notwith- standing some truly excellent cases like Nalle v. Oyster and Vickshurg V. Henson. The same is true in every court where it is held that allega- tions, admissions, denials, and issues may be waived. (See Garland v. 8. 232 U. S. 642.) Such waiver assails the bulwarks of protection per- ceivable in the Trilogy of Procedure, and of course ignores the State's attitude and interest above referred to. Such waiver makes way for usurpation, judicial arrogance, and oppression, as is clearly set forth in the dissenting opinion of Judge Talbot in Gulling v. Banl-, 29 Nev. 266-280. Upon this question Story is on one side and Thompson on the other. (See Literature.) The latter is generally preferred by American courts ; for a full generation he was the most prominent and popular author, although neither understanding nor caring for funda- mental law. § 3. Observations upon Authors Continued. The latter author denied that pleadings in a civil case were jurisdictional. He did, how- ever, recognize the indictment as essential, and by this he showed that he did not understand the logic and philosophy of procedure. In the civil case his theory was that the pleadings were functus officio when the judgment was entered. He simply denied the Trilogy of Procedure ^and all its cog-nates. X(iwhere did he mention 7?e.s Adjudicata, or col- mOM ITS LOGIC AND PHILOSOPHY 23 lateral attack, or jurisdiction and say how the pleadings were involved in these subjects. He never cited a maxim nor explained one. He claimed in the broadest way that every presumption is in favor of a pleader, that if irrelevant evidence were admitted, this became a jurid- ical element and would stand for pleadings ; that a case did not depend upon allegata but on probata alone. See his 2 Trials, §§ 2310-2314, quoted under the title "Variance," 4 Gr. & End. To him procedure was a local and fiat question, a question of statutes and cases, without regard to fundamental law (see Literature) which he denied in a broad, sweeping, and most extended way. Cases like Gulling v. Bank and S. V. Fasse (Mo.) would pass as coram judice with him. His work last cited was regarded as high authority for a full generation, and earned for him a foremost place with the American profession. His career was that of a writer and not of a practitioner. His works in general have been very popular with the Cyc editors, as well as in many schools. The 31 Cyc is largely prepared along the lines he con- tended for as a "new dispensation." And the same views are indorsed in Smith's (since labeled Clark's) Elementary Law, in attempting to elucidate the maxim, "Equity regards as done that which ought to be done." Neither of these authors understood the above Trilogy. They can be cited to deny it, and the whole of it. (See Story, Jurisdiction.) § 4. A Great Maxim : A Test of Jurisdiction. Quod ah initio non valet intractu temporis non convalescit: That which is void in the beginning cannot be cured by waiver, acquiescence or lapse of time. This may be classed as one of the major maxims, although it is a logical deduction from the Trilogy of Procedure. It may be viewed as a shield against usurpation or abuse of power. If no crime is charged, or no "cause of action" is stated, the court has nothing before it, and it can- not consider or adjudicate anything. Its attempt to do so is barred by the application of Quod ah initio. A court cannot start without juris- diction, and pick it up in the course of the proceedings, as by a stipula- tion that it may proceed, or by the introduction of irrelevant evidence. (See Campbell v. Covsalus, IST. Y.) JSTor can jurisdiction be acquired by an amendment after the trial. (See Amendments.) In an action of specific performance, if the description of the land sought were omitted, this description could not be inserted after the trial. So, too, if neither party is named such an omission could not be supplied after the trial. Nor could any of the essentials called for by Quis, quid. 24 THE LAW EESTATED coram quo be then supplied. Such procedure would offend the require- ments of the State, and these cannot be waived. The State is a silent third party to the record, and its interests cannot be waived. Res inter alios acla. Alteram nan Icedere. These conclusions are deducible from the Trilogy of Procedure. And so we may view this maxim as a minor one. However, it is very useful and instructive, and elsewhere we con- sider it at length. It well illustrates the rule that the general demurrer searches the entire record (substantial pleadings), and attaches to the first fault. In the light of the Trilogy and of this maxim, the rule of the demurrer may be clearly seen and thoroughly impressed. Accord- ingly we see this maxim opposed to the theory of the case as advocated by Judge Thompson. It is comprehended in § 10, Story's Eq. PL, § 47, Hughes' Equity In Procedure. § 5. The Most Instructive Maxim of Pleading. Quis, quid, coram quo, quo jure petatur et a q'uo; Recte compositus quisque libellus habet: Every statement correctly drawn must state with certainty to what court application is made (see Terms of court), who complains, of whom he complains, what wrong he did, and the amount of damage done (see Ad Damnum, ) . Garrett. The names of the plaintiff and of the defendant must be stated with certainty. (See Names, also Wiebold v. Herman, L. C. 98, 3 Gr. & Eud.) All of the above five requirements are jurisdictional requirements in all courts. There may be more, but in no cases are there less. They may be called the "irreducible minimum." The general demurrer and all of its correlatives would be stages whereat objections could be made to a statement wherein any of the above essentials was omitted (see Quod ab initio). At all of these stages the general demurrer would search the entire record and attach to the first fault. This maxim may be viewed as one enumerating the essentials re- quired by the Trilogy of Procedure ; for this it is very useful and most instructive. It should be read connectedly with §§ 10, 25-28, Story's Equity Pleading, also 47 Hughes' Equity. § 6. The Five Maxims of Substantial Procedure. The above five maxims — De non, Frustra, Verba fortius, Quod ab initio, and Quis, quid, coram qvx) — are the Eoman fundamentals of substantial procedure. These are the roots of procedure in the countries of the Continent of Europe and of Latin America and generally of all countries into which the Eoman arms were carried and wherever the Eoman held court (See FEOM ITS LOGIC AND PHILOSOPHY 25 diapter I. Fountains of the law, 1 Gr. & Rud.) Because of their uni- yersality and organic character they ought to be presented in all works on pleading and cognate subjects. (See Maxims.) These maxims have a profoundly constitutional character. Indeed they are maxims of the Prescriptive Constitution. They are the higher law. Local and fiat laws cannot abolish them in a constitutionalism. ~Eo constitution has greater principles. The attempt to abolish them by statutes of amend- ments and jeofails has failed. § 7. An Instructive Maxim Continued. Quis, quid, coram quo, calls for parties. Essential parties are jurisdictional. (Williams v. Bankhead, L. C. 93 et seq., 3 Gr. & Eud.) It is jurisdictional that only a, wronged party can complain, and he must state his wrong by setting forth the descriptive facts; this rule is dictated by the necessities of Res Adjudicata, in other words the interests of the State; therefore it cannot be waived. Consent cannot confer jurisdiction of subject-mat- ter; this must appear from the facts stated. For this, conclusions of law will not do. One who is not injured cannot sue. Fabula nan ju- dicium. The injured party must appear, and describe himself with certainty, and describe a wrong known to the laws of the land. He must describe something that the court is authorized to act upon, otherwise the proceeding is coram non judice, i. e., beyond the authority conferred by the State. § 10, Story's Equity Pleading. Quis, quid, is reaffirmed by all Codes. What we observe of Camp- hell V. Consalus, Clark v. Dillon, and TooTcer v. Amoua:, all N. Y. Code cases, will prove instructive in all jurisdictions. These cases present many phases of the major maxims above discussed. Codes require the statement of a "cause of action." They also provide for the general demurrer, and that the recovery must be within the facts stated. Mun- day V. Vail, L. C. 79 ei seq.; Vickshurg v. Henson. Story. Authors who omit, exclude, and deny the fundamentals, and lead furthest away from them, have been most prominent, and most sought by the legal profession, for the last two generations. How much they aided in the construction of the Code is indicated by cases like Gulling V. Bank and Weher v. Lewis (IST. D.). The student should seek the work on pleading that presents the fundamentals with congruity and in the light of logic and philosophy. § 8. The Substantial Maxims Construed Away. Lord Mans- field, in Robinson v. Raley, L. C. 45, 3 Gr. & Rud. stated that the rules of substantial pleadings were founded in "strong sense and the closest 20 THE LAW KESTATED logic," in other words, in reason and philosophy. And he is borne out in that statement by an understanding of the Trilogy of Procedure and its cognate maxims. These are canons of sense and of logic to be studied and followed by the courts in a constitutional government. Herefrom the Code appears as a grand piece of declaratory legislation. If in the first Code case, Biddle v. Boyce (Mo.), and in Eno v. Wood- worth and Allen v. Patterson (N. Y.), the courts had quoted the Trilogy and had stated in clear-cut language that these canons of sense and of logic would be respected more than the motto that "Parliament is omnip- otent," or the letter of the statute (Ita lex scripta est), the history of the Code would have been far different. The courts and authors should have said in plain language that there are but a few principles or ele- ments of procedure, and that these were well gathered and expressed by antiquity. But, instead, the courts stumbled, and the authors followed, crying for more cases and more legislation. The prefaces of Profes- sor Pomeroy and of Judge ISTash, elsewhere set forth, show this. All, courts and authors alike, avoided the elements expressed in the maxims of old ; they turned away from these, and gave heed to the "late ease," and the letter of the Code. They never cited or paid respect to Verba fortius as a great universal, constitutional principle, for they sought to extirpate it, to destroy this canon of sense, of logic, of construction, of evidence and of pleading. And the result is that the profession is be- wildered with discussions of cases like Olarh r. Dillon in I^ew York and C. & A. B. R. v. Clausen (Illinois). Clark is discussed by ISTew York authors, as appears from Bradbury's Rules of Pleading, pp. 9-16 ; 1564-1570; also Baylies' Code Pleading and Practice, 1-4. Such pages show the attempts to renounce and depart from the maxims of sense and logic. Elsewhere we cite the sections of Thompson and the elementary works extensively used in schools. The law has no greater principle than Verba fortius. It is a Datum Post in construction, evidence, and pleading. But what has the Feudal lawyer and his followers done for it? Look at the above authors, at Tidd, Chitty, and Stephen, and see if each did not ride astraddle when they mentioned it. They cited it in relation to Jackson v. Peshed and sometimes Dovaston v. Payne, L. C. 217, 3 Gr. & Rud. For it each dec- ade, each province and school, has selected its own group of cases. The Federal court has generally vindicated it; but in Baker v. Warner it gives notice that the old rules, so long respected and adhered to, must give way to the "new" and "modern" views. That case can be cited FEOM ITS LOGIC AND PHILOSOPHY 27 against Verba fortius; etc., also the Code cases Campbell v. Consalus, Clark V. Dillon and Tooker v. Arnoux. It is a case that is likely to 'give the profession endless trouble, unless that court declares itself for the ancient rules of sense and logic. These have never been cited and explained by the court. (McFaul v. Ramsey.) Its decisions, like those of state courts, have been Feudal in character. All courts have at times applied and upheld those principles, but the trouble is they do not adhere to their decisions nor put them on the true grounds. As to these rules of sense and logic there is no stwre decisis. Everything is decided every way, as will appear from the authors above cited. Plad some American court picked and stated the Trilogy of Proce- dure, and explained its maxims, the history of procedure would have been different. (See Logic.) To a profession that did not understand the rules of sense and logic upon which pleadings depend, the Code was given, only to be destroyed by construction. Benedicta expositio quando res redimitur a destructione. § 9. TheTrilogy of Procedure: The "Manner of the Romans." Adore non probante reus absolvitur : The plaintiff must prove his case or the defendant is absolved. Whoever alleges must prove. Semper prcBsumire pro negante : The presumption is with him who denies. One must allege a case (De non appareniibus) , and if it is denied, the plain- tiff must prove the allegations that are denied. This maxim is not a major one, but it is a corollary oi Be non apparentihus, already intro- duced. In Paul's Trial (see Acts, xxv.) the Trilogy of Procedure was up for discussion, and Festus instructed the Scribes and Pharisees touching the "manner of the Romans." Therefrom it appeared that the manner of the Eomans involved sufficient allegations in distinction from a conclu- sion of law, that it recognized that the burden of proof devolved upon the prosecution, and that the accuser "must prove the crime as laid ;" that the evidence must correspond with the allegations and be confined to the points in issue (1 Gr. Ev. 51). This maxim ought to be studied in connection with the Trilogy of Procedure, the primary organic maxims.. Adore calls for the issue in all cases, both civil and criminal ; there is no difference. It calls for the allegation, the denial (see Dickson v. Cole et seq., 3 Gr. & Pud.), and the issue (see Issue). Where there is no issue there is nothing to try. {Munday v. Vail, L. C. 79, 3 Gr. & Eud. ; Garlamd v. S. 232 U. S. 642.) 28 THE LAW EESTATED The issue must appear from the mandatory record. (See Id.) But this is denied by the "theory-of-the-case" advocates. (See Id.) Also C. J. Cyc 66, 100 — bills of particulars, evidence, and opinions ad- missible to prove. The burden of proof is a rule of great consequence to the practitioner. It is a rule of substantial right. (See Bonnell v. Wilder, L. C. 185, 3 Gr. & Eud.) It often presents a phase of Verba fortius. There is a presumption against him virho alleges or claima. (See Tinker, 231 U. S. 681; the rule is not one of- fixed right.) § 10. Rules of Res Ad judicata; The Rules of Pleading and Certainty. Juridically presenting and proving a plea of Bes Adjudi- cata is a fine illustration of the Trilogy of Procedure, also of Adore. This plea has no presumptions in its favor, but, on the contrary, all pre- sumptions are against it. This plea must appear wholly from the man- datory record. The matter of the statutory record is inadmissible to prove it. These views the "theory-of-the-case" advocates have not and cannot meet. They write volume after volume and article after article in Cycs on Pleading, Evidence, Practice, Trials, and Trial Practice, without mentioning the plea of Res Adjudicata, — how it must juridical- ly appear, and how it must be proved. This plea and the practice relat- ing to it is tested by the Trilogy of Procedure. It is the most learned plea of the law, except the pleadings in equitable exceptions to the statute of frauds. (See Lester v. Foxcroft, L. C. 341, 3 Gr. & Eud.) In the criminal law perjury involves the most refined pleadings and proofs. Here there must be an issue, and it must appear from the pleadings, — the right record. (MoTidel v. Steel, L. C. 71, 3 Gr. & Eud.) To support the charge of perjury it must appear that there were pleadings, an allegation and a denial, and a material issue, judged by the tests of the Trilogy of Procedure. Thus the claim that a case arises from the evidence, bills of particulars, arguments, instructions and opinions, and not from the pleadings, is answered by the require- ments for pleading and proving perjury. Una absurdo data infinita sequuntur. The rules of Res Adjudicata, the equitable exceptions to the statute of frauds and of perjury, are all in accord with the Trilogy of Procedure. And all of these are at war with the "theory of the case." But they are in harmony with Code provisions. (See Campbell v. Consalus; Clark V. Dillon and Tooker v. Amoux.) § 11. The Trilogy of Procedure Is International Law. The Trilogy of Procedure pervades the highest of laws, not only constitu- FROM ITS LOGIC AND PHILOSOPHY 29 tional law, but the law of nations as well. To illustrate: If England demanded of Mexico an accounting for the slaying of Benson, a British subject, and the defense of Mexico was that he was executed according to "due process of law," then the usual incidents of this defense would be called for. For this, local and fiat law and the law of some province in disaccord with fundamental law, would not be thought of for a mo- ment. For this the "manner of the Romans" must be presented. For this a record (the mandatory record) would be called for, which must present a charge of a crime {Quis, quid, coram quo), and this charge would be scanned and tested for a presentment, and for notice of it, and an opportunity to be heard, and for a sentence in accord with the pre- sentment and the notice. (Standard Oil Co. v. Missouri, 222 TJ. S. 270, 272.) If no suiEcient charge was presented, — if it would not pass the gener- al demurrer, — the investigation would close then and there. The tri- bunal had no jurisdiction to begin with, and it could not pick and gather it up on the way of a trial. That would be a "theory of the case," which England does not recognize. On the contrary, the maxim Quod ab initio would be applied. The general demurrer searches the substan- tial pleadings, and attaches to the first fault. With no crime charged, to start with, the investigation would proceed no further (Story). If there was no crime charged, then it matters not what the evidence was. Evidence cannot supply allegata. Jurisdictional averments must ap- pear in the right record. Prohata is one thing and allegata is another. Fru-stra prohatur qvx)d prohatum non relevat. Statesmen and diplomats would be governed and would find accord- ing to these maxims, and upon these submit the case to the nations of earth to judge from. These maxims would be laid down as the law of nations, and, too, in the language of all nations, not in the language of some province or state which may have declared its law as suited the legislature of that province. The prescriptive constitution would guide in such a case, and not local and fiat law, nor the late case in oppo- sition to those maxims. The principles of "due process of law" that would govern in such a case would be the Trilogy of Procedure, — the "manner of the Romans." There must be some test for such an inquiry, and that test is the maxims referred to. If it appeared that notorious enemies openly proclaimed and crowded themselves in as judges and triers of the status of the slain party, then the 30 THE LAAV EESTATED proceedings would be condemned as coram non judice. And it would be vain to show that Benson did not object or take exceptions. One cannot consent to what offends public policy. Alterum non Iwdere. In this connection read Oakley v. Aspinwall, 3 IST. Y. 547, 549-554, the ablest exposition of Nemo debet esse judex in propria sua causa. This maxim is there declared to be the first principle in the due ad- ministration of justice in ISTew York, and to be above statutes and Con- stitutions. (Lead. C. 222, 3 Gr. & Kud. ) In prceseniia majoris cessat potentia minoris. In extradition proceedings the character and the nature of the offense charged is determined from the mandatory record, and not from epheme- ral and evanescent vestiges and scraps. If one is accused of perjury, then the materiality of the issue is a matter of substance, and this would not be sought from matter in or belonging to the statutory record, nor from oral evidence, nor from stenographer's minutes. But the man- datory record would be opened, and this record would be construed by the rule, "What ought to be of record must be proved by record, and by the right record." (Fiunt enimj Equity In Procedure 218—231.) The issues would be sought according to the rule in Mondel v. Steel, L. C. 77, 3 Gr. & Eud.; Milbra, 45 L.E.A.(W.S.) 274, 277, 278; Palmer V. Humiston, 46 Id. 640. If no material issue appeared from the right record, the charge of perjury would fail. Dehih fundamentum fallit opus. Equity In Procedure, 206-217. If no "cause of action" was presented, then there was no material or relevant evidence, and there- fore no coram judice proceeding, and therefore there was no wrong. Fabula non judicium. Frustra prohatur quod probatum non relevat. The "theory-of-the-case" advocates cannot have any standing in In- ternational Law, from the above viewpoints. (See Story.) The Plead- ings cannot be waived. (§§ 83-124, 1 Gr. & Eud.) § 12. The Mandatory Record a Constitutional Implication. The maxims of sense and logic call for tremendous implications for their application and operation. And among these implications is that para- mount essential, the mandatory record. This record is indispensable for the due administration of justice. Indeed it is a constitutional im- plication. By it must be determined what is juridically presented, con- sidered, adjudged, and determined. For this purpose it is the ex- clusive and the best evidence. To it is strictly applied, Expressio unius est exclusio alterlus. As the deed or the note is called for to prove the rights of a claimant under them, so the judgment and its supportino' FROM ITS LOGIC AND PHILOSOPHY 31 record is called for when the judgment is relied upon to prove an es- toppel of record, a plea of Res Adjudicata, or a title founded thereon. And as a deed or a note may have defenses not indicated on its face, so may a judgment. It may be shown to be coram non judice by the at- tending record upon which it depends. (Windsor v. McVeigh, L. 0. 1, 3 Gr. & Hud. ; Vichsburg v. lienson; Nalle v. Oyster.) In all courts au- thority must be shown for the entry of a judgment; it is not presumed. A judgment does not carry presumptions of regularity on its face. Jurisdictional facts must affirmatively appear. And at all stages this supporting record is tested by the Trilogy of Procedure. The general demurrer is never waived; it searches the entire record, and attaches to the first fault. And this is the rule at the stage of collateral attack, of Res Adjudicata, of "due process of law." (See Collateral Attack.) This record is governed by the rule, "What ought to be of record must be proved by record and by the right record." {Fiunt eniin de his coro- tractihvs.) It is the state's record and cannot be waived. Res inter alios acta; Alterum non Icedere. Codes and practice acts are governed by the above deductions from the Trilogy of Procedure. Campbell v. Consalus; Clark v. Dillon; Tooker v. Arnoux; S. v. Muench (Mo.). (See Mandatory Record.) § 13. The Statutory Record Is a Formal Record; Its Office and Functions. The statutory record (bill of exceptions) is entirely different from the mandatory record. It is for entirely different pur- poses. It is not opened at the stage of collateral attack, nor on ques- tions oi Res Adjudicata. (Alterum:) It is for an appellant in a court, of errors, and is for no other purpose. It may be waived in whole or in part, and as may please the appellant. (See statutory record.) Nothing is of more consequence to the practitioner than an accurate technical knowledge of these two records. And, it must be added, noth- ing is more illy understood. (See Pennomfsky v. Coerver [Mo.] ; Planing Mill Co. v. Chicago, L. C. 2d, 3 Gr. & Rud. and sections in 1 Gr. & Rud. there cited ; also L. 0. 290a-299, 3 Gr. & Rud. ; Abatement. ) At this point let us ask if it is not apparent that the rules of "sense and logic," upon which pleadings depend, should be introduced and taught as great organic principles of the prescriptive constitution, com- mon to all systems, including the Code ? Should the rules not apply as well to courts created for cities, like the Chicago municipal court (see Id.) ? Do not these major maxims underlie not only pleading, but its related subjects as well ? Should not every work on pleading introduce 32 THE LAW RESTATED and elucidate them? Would not the Trilogy of Procedure be a yalu- able addition to every work on pleading and to every article in Cycs, on evidence and practice, on trials and trial tactics ? Can any greater or more useful rules of procedure be named? Is not the vision greatly widened and cleared after a careful consideration of the Trilogy of Procedure? Why, then, have all the works on pleading and evidence omitted the major maxims ? Is it not certain that they must be stated and made prominent in any logical and philosophical restatement of the law ? § 14. Equity; Its Trilogy; Its Major Organic Maxims. 1. Juris prwcepta sv/nt hcdc: Honeste vivere; Alterum non Imdere; Buum cuique tribuere: These are the precepts of the law: We should live honestly; injure no one, and render to every man his due. This is the greatest maxim of the law. No case can be cited that presents all its phases. Alterum non Icedere is widely cited in tort, and it may be cited also in crime. We have cited it to sustain the state's attitude in procedure, and especially to the proposition that the g-eneral demurrer cannot be waived. (See Alterum,.) Eor brevity we often cite it simply as Alterum. 2. TJhi jus ibi remedium. There Is no wrong without a, remedy. AtKby v. White, L. C. 273, 3 Gr. & Rud. 3. Eegula pro lege si deficit lex: Where the law is deficient the maxim rules. End. Stat. 182. This maxim is very important in construction. It is adopted by the courts of Continental Europe and of Latin America. It indicates the importance of the prescriptive constitution as a body of organic, funda- mental law. Constitutions and statutes are governed by the higher law. Indianapolis E. B. v. Horst, L. C. 223, 3 Gr. & Eud. ; Church of The Holy Trinity v. U. 8. 2 Gr. & Eud. ; S. ex rel. Henson v. Shepherd, 4: Gr. & Eud. ; Oahley v. Aspinwall, L. C. 222, 3 Gr. & Eud. See Nemo debet esse judex: Also Hughes' Equity, §§ 509-522. In prce- seniia majoris. The major maxims of equity were not assigned as the basis for equity jurisdiction and operation in the seventeenth century, when Coke was in power. See chapter I. 1 Vol. Gr. & Eud.; Equity, 2 Gr. & Eud.; also title Equity, post. § 15. Contract; Its Trilogy. Having presented the major max- ims of procedure and of equity, we will next gather and present those that are the substance of other leading subjects. These shall be only the FEOM ITS LOGIC AND PHILOSOPHY 33 familiar maxims that are fundamental in the discussions of those sub- jects. The American Bar Association recommends that the familiar maxims be taught in the schools. Prom these we pick a few of the most important, such as should be comprehended by all students. We have already endeavored to show why the organic maxims of procedure should be understood as the basis of all systems of pleading and prac- tice. Maxims are like a river without a main, percolating under the entire body of the law; and especially the great maxims of sense, logic, and morals. This is illustrated by a consideration of Idem agens et pa- ttens esse non potest, in §§ 509—522, Hughes' Equity In Procedure. There are maxims of the law that are a necessary part of a good edu- cation. Having introduced Procedure and Equity we will next pre- sent: CONTRACT: 1. Non hcec in fwdera veni: I did not come into this compact. This ia equivalent to saying I did not assent to this contract. It involves the law of assent. See Lampleigh v. Brathwait, L. C. 301, 3 Gr. & Rud. 2. Ex nudo pacta non oritur actio: No cause of action arises from a bare agreement. In other vpords a consideration is essential to support a simple contract. See Rann v. Hughes et seq., 3 Gr. & Rud. L. C. 312. 3. In pari delicto potior est conditio defendentis: In equal fault the posi- tion of the defendant is preferred. In other words, "he who hath done iniquity shall not have equity." A party to an unlawful agreement can- not enforce it. The state interdicts illegality, and therefore its courts will not entertain jurisdiction of contracts made in violation of law. It involves a question of jurisdiction, and this involves questions of plead- ing and proof; See Holman v. Johnson, L. C. 363 et seq., 3 Gr. & Rud. Maxims and cases of Contract, see 1 Gr. & Rud. §§ 280-290 ; also 3 Gr. & Eud. 301- 417 ; also Equity In Procedure, 466-472. Contract has interactions with equity, procedure, crime, tort, and construction. To demonstrate this, we have only to study In pari de- licto and its cognate maxims. "These are trite and familiar maxims we all know," Justice Peckham, in McMuUen v. Hojfman, 174 U. S. 639, 654-660. He also said these maxims were in all the works. But in this he was mistaken. We have popular elementary works and works on "brief making" that do not present one of these "trite and common- place" maxims that the justice called the organic law of Contract from of old. To-day in schools in ISTew York city are professors who have no more use for maxims than had Judge Seymour D. Thompson. (See 34 THE LAW EESTATED Story.) In McMvllen, several paraphrases of In pari are set forth and discussed as jurisdictional maxims; thus as Procedure. Paraphrases are given which relate to equity. He did not cite Crimen omnia ex se nata vitiat: Crime vitiates all into which it enters. But he well im- pressed Ex dolo malo non oritur actio. This is a most useful maxim in the law of tort, in misrepresentation, deceit, and cognate cases. These maxims interact with crime from many viewpoints {B. v. Wheatley, L. C. 19, 3 Gr. & Pud.) ISTor did he observe that the coram non judice proceeding in the field of procedure was an example of In pari in contract. ISTor that a judgment is one of the classes of con- tract, the contract of record^ and that the judgment depended upon the coram judice proceeding, without which the judgment is In pari, so to speak. (See Windsor v. McVeigh, L. C. 1, 3 Gr. & Pud.; also 8. v. Baughman, Weltmer v. Bishop, Beaumont v. Reeve, L. C. 268, 268a^ 367, 3 Gr. & Pud. ; Fdbula non judicium; Scott v. McNeal, 4 Gr. & Pud. ; Jurisdiction. ) § 16. Contract; Pleading of. The statement of a contract which showed it was In pari would not pass the general demurrer, and this is never waived. Alteram non Icedere. The welfare of the state cannot be waived. Solus populi suprema lex. Res inter alios. All of these propositions can be picked out of McMullen, 174 U. S. 654^660. Therein is cited Holman v. Johnson, L. C. 363, 3 Gr. & Pud. ; Trist V. Child, L. C. 214, 3 Gr. & Pud. et seq. (by construction the welfare is defended). Benedicta expositio quando res redimitur a destructione. McMullen is perhaps the deepest and broadest discussion of In pari. And yet it comes from a judge who can be cited to sustain the view that there is "new" and "modern" law, for he held that jurisdiction of form- al matter could be conferred without regard to an assig-nment of errors. Such decisions speak far and wide. In McMullen it was conceded that a few maxims founded and formu- lated the law of contract. Now if this is so, does it not follow that the same elements in other branches of the law are also equally im- mutable ? A study of In pari, will answer this question. (See Equity; Feudal Lawyer.) The attitude of the state must be respected in contract law. McMuJ- len, supra. Alterum non Icedere. Must it not be respected in all re- lations? And if disregarded, are not the proceedings subject to col- lateral attack {Windsor) ? FROM ITS LOGIC AND PHILOSOPHY 35 § 17. Contract; Outline Considerations. Every legal contract is respected by government, and will be enforced by it as far as possible ; this is the duty, the obligation, of government. The law protecting contract from impairment is not local and fiat, but arises from organic principles of society. Local law may reaffirm this older law, but this is not making the law. The law of contract, its protection and enforce- ment, is old and archaic, and not "new" and "modern" law. Every law- ful contract must be respected. This idea is well expressed in : Pacta conventa quw neque contra leges neque dolo malo inita sunt omnimodo ohservanda sunt: Contracts which are not illegal and do not orig- inate in fraud must in all respects be observed. What this maxim means is well stated by Judge' Peckham in a truly notable and instruc- tive case McMullen v. Hojfman, 174 U. S. 639, 654-660, which, with Oakley v. Aspinwall, Riggs v. Pahner, and Clarh v. Dillon, stands for the prescriptive constitution. In these cases the supremacy of the state and its interests are well set forth. With Oampiell v. Consalus they speak for the higher law. Solus popvli suprema lex. A statement that presents an illegal contract will not attract jurisdic- tion; it is subject to general demurrer, and this cannot be waived. Lampleigh v. Braihwait, L. C. 301, 3 Gr. & Pud. Herefrom will ap- pear the depth and importance of the maxim. In pari. (See discussions of McMullen, supra ; also of the expression Coram non judice in proce- dure.) In contract law we call illegality In pari, while in the law of procedure we call a defect of the judgment contract, Coram non judice. The idea is the same in each case. The prescriptive constitution dictates the law of the leading subjects. The higher law cannot be changed without eating into the very struc- ture of government, changing its obligations and operations. (See Ju- risdiction; Trist V. Child, L. C. 214, 3 Gr. & Rud.) The endless discussions of Cumber v. Wane, L. C. 311, 3 Gr. & Rud. are nothing more than phases of Ex nudo pacta (Equity In Procedure, p. 46T). For the discussion, one professor selects Cumber v. Wane, while another selects Foakes v. Beer and another Piiuiel's Case, and still another, Sihree v. Tripp (Equity In Procedure, 467). ISTow, whether the old unchanging statements of the law, in the maxims, or the ever-changing and fluctuating cases, best present funda- mental principles, the student must judge for himself. It is maxims, not cases, that have stood the tests of time. Only the cases that best il- lustrate these are worthy. The rest may be recalled or blown away. 36 THE LAW KESTATED Even admitting the excellence of the case system, still its advocates ought to agree on the right and true cases, and explain and impress these, and the fewer the better. (See Case System, 2 Gr. & Eud.) The discussions of Cutter v. Powell, L. C. 308, 3 Gr. & Eud.; p. 471 (Equity In Procedure), involve phases of Non hwc in fcedera veni as well as phases of procedure. When one denies that he entered into a contract, he denies that he injured the plaintiff. One who has not in- jured cannot be held responsible. Courts were not created and given jurisdiction to condemn those who are not guilty or liable. Courts can- not make contracts for parties. Hoare v. Bennie. Parties must make their own contracts; only the contracts parties have made and plainly agreed to can be enforced. Contracts made for the benefit of a third person and enabling the latter to sue in his own name involve questions of procedure as well as of contract. To present this question, one professor or school chooses Button V. Poole; another chooses Hendrick v. Lindsay, L. C. 319, 3 Gr. & Eud., while another will choose Lawrence v. Fox, and gather from the ISTew York reports the nearly 300 citations of this case; and from this mass who shall pick that case which comprehendably teaches the true principle of procedure, around which all of these cases revolve? ISTot one teacher will cite Actio non datur non damnificato : An action is not given to one not injured. 4 Brit. E. C. 425. Not one will clear- ly state the principle that only an injured person can complain to a court, and that this is a jurisdictional question (see Jurisdiction) ; that a statement of a "cause of action" must present an injured person (Quis, quid, coram quo), otherwise the statement will not pass the gen- eral demurrer (Story; Eushton). The Button, Hendrich and Law- rence cases well illustrate the interactions of contracts and procedure, and the fact that pleadings lie at the base of protection and of contract, and show how cases can be made to illustrate the maxims. These cases are further stated in other relations. From Gutter v. Powell and Button v. Poole may be perceived parts of the major-organic maxims of contract above referred to; also how these ramify equity, procedure, contract, crime, tort, and construction. These principles have fared badly in the scholasticism of Feudalism and its overtoppling bulks of digests and Cycs filled with myriads of cases that cannot be reconciled. Its hurrah for these various selections as "statements of the law that have stood the tests of time" on the one hand, and, on the other hand, that the "law is the last interpretation of FROM ITS LOGIC AND PHILOSOPHY 37 the law by the last judge," but such are the ways of commercialism. It claims that more than 5,000 new principles are stated and developed each year, and that this "wonderful development" demands their unend- ing lines of chaff pads and jargon. From these the student must turn and seek the logic and philosophy found in the maxims. To illustrate the condition, we call attention to the judicial anarchy relating to the pleading of a contract. This will appear from a con- sideration of Bowen v. Emerson on the one hand, and on the other Weber v. Lewis, 34 L.R.A.(E".S.) 362-374. (See Contract, post; also Lampleigh v. Brathwait, L. 0. 301, 3 Gr. & Rud.) We oifer the view that the law of contract is evolved from a few max- ims, and not from cases. Cases may, and often do, break the law (see Clark V. West), but breaking the law is not making the law. This was well said by James C. Carter, and very plainly intimated by Judge Peckham. These high authorities spoke for the old and the higher law. Melius est petere fontes quam sectari rivulos, 18. Trilogy of Crime. CRIME: ITS ORGANIC MAXIMS. 1. Ignorantia legis neminem excuswt: Ignorance of fact will excuse; igno- rance of law will not excuse. Levett's Case, 4 Gr. & Rud. ; R. v. Esop, 4 Gr. & Rud.; McNaghten's Case, L. C. 195, 3 Gr. & Rud. Legislatures have sought to abolish this maxim of the prescrip- tive constitution, but in vain. Courts and juries refuse to convict the nurse for administering a noxious drug when ignorant of its nature. In petty crimes and in police regulations the intent may be presumed, but not in felonies. P. v. Rohy, 4 Gr. & Rud. 2. Actus turn facit reum nisi mens sit rea: The act does not make one guilty unless his intention were so; or, act and intent must concur to constitute crime. McNaghten's Case, L. C. 195, 3 Gr. & Rud.; P. v. Rohy, 4 Gr. & Rud.; Brown v. 8. — Del. — , 25 L.RA.(N.S.) 661, cites, R. v. Prince, R. v. Tolson and R. v. Bishop, all in 4 Gr. & Rud. 3. Qui primum peccat ille facit rixam: He who is guilty of the first offense is liable for the whole strife. This is an important maxim in the law of self-defense. C. v. Self ridge, 2 Gr. & Rud.; Squih Case, 4 Gr. & Rud. Note.— Crimes : See 1 Gr. & Rud. §§ 291-297; R. v. Cases, 4 Gr. & Rud.; C. V. Cases, 2 Gr. & Rud.; P. v. Cases, 4 Gr. & Rud.; S. v. Cases, 4 Gr. & Rud.; U. 8. V. Cases, 4 Gr. & Rud. See also the respective subjects in the Gr. & Rud. in its alphabetical place. 38 THE LAW KESTATED § 19. Tort; Its Trilogy. TORT: 1. Alterum non Icedere: Injure not one another. This is a part of Juris prcEcepta sunt hwc: 2 Gr. & Eud. See Sic utere; Fletcher v. liylands, 2 Gr. & Eud.; Squih Case; §§ 23, 97, Hughes' Equity In Procedure. 2. Volenti non fit injuria: He who assents or invites his own injury ought not to be heard to complain of it. Dames v. Mann, 2 Gr. & Rud. ; Eegarty v. Shine, 2 Gr. & Eud. The negligence of one ought not to be charged to another. § 97, Hughes' Equity. This maxim and Actiis non facit reum nisi mens sit rea (see Crime, supra) and Verba fortius accippiuntur contra proferentem (see Proce- dure, supra) are three maxims that have been strongly assailed by legis- lation. They are of the prescriptive constitution and self-vindicating. In the nature of things courts are bound to respect them. 3. In jure non remota causa sed proxima spectatur: The law regards the immediate, and not the remote, cause of any event. See Causation. This maxim has long been elucidated in the "Squib Case," 4 Gr. & Eud. Its most extended discussion is found in Gilson v. Delaware Canal Co. 36 Am. St. 802-861, ext. n. j 2 Gr. & Eud. There are many cases which savor of both crime and tort and also of contract. See R. v. Wheatley, L. C. 19, 3 Gr. & Eud. ; Coggs v. Bern- ard, L. C. 350, 3 Gr. & Eud. (Bailments) ; Iladley v. Baxendale, 2 Gr. & Eud. (Breach of Contract) ; Broivn v. W. U. Tel. Co. 234 U. S. 542 ; Pasley v. Freeman, L. C. 375, 3 Gr. & Eud. (Deceit; False Eepresenta- tions that Cause Injury) . § 20. Construction; Its Importance; Its Leading Maxims, General Principles and Leading Cases, l^othing is of more con- sequence to the practitioner, or to one examining titles to property, than to know how to construe pleadings and judicial records ; and there is nothing that presents a gi-eater barrier to the progress of the student than to confuse the logic and philosophy involved. The law relating to the subject is simply chaos, as will appear by starting from Collateral Attack and examining the conflict. The discussions around the motto, "Parliament is omnipotent" the statute of amendments and jeofails, and the "liberal provisions" of the Code, and the attempts to create courts like the Municipal Court of Chicago to practically dispense alto- gether with pleadings and all certainty in judicial records, will exhibit a mire of bewilderment. Cases like Crepps v. Burden (records of in- FROM ITS LOGIC AISTD PHILOSOPHY 39 ferior tribunals) are simply beyond human capacity. Relating to this question, the diiSculty will appear by examining the cases of the Federal court concerning the Green County Bonds, which arose in Kentucky (108 Ky. 116-135). The maxims we shall next cite are submitted to the consideration of the student, with the suggestion that he can gain more light from these than he can from the jungle of cases that are laid before him for instruction. We ask a consideration of the subject from the old' and the high law, and ask that this be compared with the "late" cases and the "new" law that is supposed to have come. See Baker v. Warner, 231 U. S. 588-593; Eighmy v. P. (N. T.) ; Rice v. Travis (111-) The principles of construction are embedded in the Prescriptive Con- stitution. These underlie and pervade the entire body of the law. They are its reason, logic, and philosophy. (See Logic.) To start with, the Trilogy of Procedure are canons of construction; they are major-organic principles. Construction has no more import- ant principle than that expressed in the maxim of all ages. Verba fortius accippiuntur contra preferentem. This maxim and its cognates should have due and full consideration at the very threshold. Herefrom the student may judge of the old as well as of the "new." Looking at the dreadful confusion it is time that the few fundamental principles were picked and set and introduced to the student so that he can see and judge for himself. Accordingly we present him the few principles that lead and light up the way of construction. We introduce him to the Trilogy of Procedure, which are the state's rules, the rules of strict construction, which cannot be waived nor disposed of by the parties. (See Campbell V. Consalus.) Wherever the state has an interest these rules apply. These views are dictated by the greatest maxims. Alterum non Iwdere; Interest reipublicce ut sit finis litium; Res inter alios acta. Parties cannot stipulate away pleadings, nor waive them, directly nor indirect- ly. (Campbell v. Consalus.) There are limitations of Consensus tollit crrorem. The state's interests are safeguarded by the major — the or- ganic, the universal, constitutional maxims of procedure, already intro- duced. These rules are dictated by Res Adjudicata, which is founded on Interest reipublicce. At the stage of Res Adjudicata the rules are strict for and on behalf of the State. And these are just the same at the stage of the general demurrer ; there is no difference. It is absurd to say that at the stages of collateral attack or Res Adjudicata the State applies rules different from those applied at earlier stages. Logic, reason, and 40 THE LAW KESTATED philosophy require that the tests be uniform. And the tests nre uniform on general demurrer and at all of its correlatives. (See Collateral At- tack; Res Adjudicdtaj Due Process of Law.) But this is denied in Eawle's 3rd Eevised Edition of Bouvier's Dictionary, volume 3, title "Pleading." When we demonstrate that the general demurrer and all of its cor- relatives are all governed by the same tests — by the Trilogy of Proce- dure, then we make the rules and tests of all these matters rules of construction, and show that all radiate from and around the Trilogy of Procedure, which includes Verba fortius. § 21. Feudalism and Imperialism Have Led into Bewilder- ment. The Feudal author and his followers never perceived and vin- dicated the prescriptive constitution. He could not have done so while defending his motto, "Parliament is omnipotent." This motto barred the idea that there were major-organic maxims above local and fiat law. Consequently he either ignored the maxims, or presented them along with cases like Jackson v. Peshed (see Logic), or as Professor Pomeroy did (see Pomeroy's Code, 533, citing Antisdel v. R. R. and the con- trary in § 546). We know of no author or case or article that plainly indicates that the attempt to reverse the operation of Yerha fortius is a thrust at the vitals, the logic, and the philosophy, of the law, or that the law of procedure has immutable principles which imperial statutes and resolves of government cannot abolish. There are no better cases than Dovaston v. Payne, L. C. 217, 3 Gr. & Eud. ; Clark v. Dillon (N". Y.) ; 0. & A. R. R. V. Clausen (111.) ; Rose v. Milne (Va.). See this maxim discussed in Hughes' Equity. This is the maxim that statutes of amendments and jeofails, the liberal provisions of the Code, and municipal court acts like that of Chicago, are enacted and established to overwhelm. It is over this maxim that a furious conflict has raged, and has dismembered the logic and philosophy of the law, and made of it a mire of statutes and cases. All courts have vindicated it at times, but not continuously nor con- gruously. (See Theory of the Case.) Every court that holds that a pleader may be allowed what he has not alleged violates this maxim. (See Henry v. Billiard, — N. C. — , 49 L.E.A.(N.S.) 1-44, cited and discussed in relation to Lester v. F oxer oft.) § 22. The Prescriptive Constitution Opposed to "Parliament Is Omnipotent." The maxims require that a cause of action be stated. Bacon, Mansfield, Kent, and Story all reaffirmed the law of antiquity, — the prescriptive constitution. The state in its scheme of FROM ITS LOGIC AND PHILOSOPHY 41 protection has reaffirmed that law by its Codes and practice acts. The supreme law of the land when dealing with the removal of causes de- mands it. And there are other demands for it. (See Consensus tollit errorem, also §§ 83-123, 1 Gr. & Eud.) The late Code cases de- mand it. Palmer v. Humiston (0.); Milbra v. Steel Go. (Ala.) The latter cites and follows Mondel v. Steel, L. C. 77, 3 Gr. & Eud. Plead- ings must present the case. It cannot arise from irrelevant evidence (see 1 C. J. Cyc, 66, 100). "What ought to be of record must be proved by record and by the right record." Milbra; Campbell v. Covr solus. At all stages the pleading must be tested by the Trilogy of Pro- cedure, n Verba fortius accippiuntur contra proferentem, and its cog- nates. Even in Res Adjudicata the judgment is construed and limited by the pleadings. Verba generalia restringuntur ad habilitatem rei vel personam. Vichsburg v. Henson; Munday v. Vail, L. C. 79 et seq., 8 Gr. & Eud. A judgment outside the pleadings is void. Vichsburg v. Henson (U. S.). It is void for purposes of Res Adjudicata. How, then, can this void judgment be of more effect at the stage of Collateral Attack, or at appellate procedure, or the motion in arrest ? Should not con- struction be uniform? It is the State's interest that dictates the con- struction at all stages. And is not this interest the same at all stages ? Goldhan v. Edwards. Contra, Baker v. Warner (U. S.) ; also Bouv. Die. 1914 ed. title Pleading. But the maxims are denied by the statutes and the late cases referred to. This the discussions of Clark v. Dillon^ in New York, will show. (See New York.) At the stage of appellate procedure the pleadings are still jurisdic- tional and are opened without regard to exceptions or assignments of error. {Nolle v. Oyster.) At the stage of Res Adjudicata the judgment is construed by the pleadings. {Munday v. Vailj Vichsburg v. Hen- son; cases cited; Mondel v. Steel, L. C. 77, 3 Gr. & Eud.) How, then, can any lawyer deny that pleadings are jurisdictional and cannot be waived? (See Campbell v. Consalus and cases cited; Federal Pro- cedure.) Plain as the last proposition may appear, still in almost all of the American courts it is held that pleadings may be waived (see "Theory of the Case;" Thompson's Trials, 2310, 2311, quoted under the title Variance, 4 Gr. & Eud. ; Smith's [now Clark's] Elementary Law, in relation to the maxim "Equity regards as done that which ought to be done;" Ovlling v. Bank; Henry v. Hilliard, 49 L.E.A.(]Sr.S.) 1-44). Also the 1914 edition of Bouvier's Dictionary, title Pleading. The 13 THE LAW EESTATED "theory-of-the-case" sect contend that with the entry of judgment the pleadings become functus officio. They deny that they are jurisdic- tional; they deny the maxim Quis^, quid, coram quo; they deny the Trilogy of Procedure. They never cite nor explain these maxims, nor the necessities of Res Adjudicwta, nor its rules and the interactions of these with the rules of evidence, pleading, practice, and construction. This sect does not recognize the attitude of the state in procedure. They do not cite and explain Interest reipublicoe ut sit finis litium, nor recognize that the state demands pleading and the mandatory re- cord (P. V. Gray, 261 111. 140, 49 L.E.A.(N.S.) 1215) for reasons of public policy. AUerum non Icedere. Res inter alios acta. Campbell V. Consalus, et seq. § 23. The Prescriptive Constitution Continued. The attempt to write and to teach the law without regard to its fundamentals is before us. {Gulling v. Banlc; Henry v. Hilliard, 49 L.E.A.(]Sr.S.) 1^4; 8lo- cum V. Ins. Co. and Baiter v. Warner [TJ. S.J.) These cases show that the entire juridical field is pervaded with the notion that the law is local and fiat, and may arise from statutes and cases. Look at the attempts to establish courts and systems that will abolish pleadings. The claims for this by the journals and forensic orators have now to be measured by the decisions in Illinois which have reaffirmed the Trilogy of Procedure as the fundamental law and applicable to the Municipal Court of Chicago. Walter Cabinet Co. v. Russell, 250 111. 420. Affi- davits and stipulations will not enlarge or diminish pleadings. Id.; Campbell v. Consalus (K Y.). "A cause of action" must be stated. Devine, 162 111. App. 629. Quis, quid, coram quo. The contentions over the Chicago court indicate the state of the professional training in Illinois (see Feudal Lawyer; Jaclcson v. PesJced). Elsewhere we refer to ISTew York, Missouri, and other states. The truth is abroad that the law must be restated, exactly as Bacon prophesied. And now that restatement will come to a nation in judicial anarchy, and to a legal profession inviting by its attitude all the consequences of a fail- ure of the due administration of the laws. The lawyer, his judiciary, his literature, and his schools vitally affect the welfare of the country^ its commerce, its morals, the titles to property, the education of the people, and all upon which a nation's prosperity can be built. Multitudino imperitorem perdit curiam. This proposition is self-evident. However we will cite Goldham v. Edwards (Eng.). FROM ITS LOGIC AND PHILOSOPHY 43 If a "cause of action" must be juridically stated, then there must be some test of the sufficiency of this statement. For such a test, what case or rule gives more light than the Trilogy of Procedure and its Cognates ? Bacon, Mansfield, Story, Kent, Cooley and Jackson (Legal Maxims) perceived the logic and the philosophy of the maxims. Blackstone in re- lation to Juris prcecepta sunt hcec intimated the fundamental character of the maxims. But no author has taken the time and space to demon- strate the existence of such logic and philosophy. There has long been need for iiii-e than hints, intimations, and repetitions of what some great judge or author has said. It is time to make some important facts plain. Therefore we will in this connection attempt one demon- stration, and for that we shall choose an old and trite rule, no longer understood, namely, "The general demurrer cannot be waived." This is not understood in the "theory-of-the-case" courts. The reason of the rule has been lost, like the dominating initial from which the Parthenon was drafted. To begin with, let us note that the unity, symmetry, harmony, and philosophy of the law are a battered and helpless wreck upon the shoals of empiricism and commercialism, with their vast and unwieldy bulks of supposed legal literature. Causes for this are perceivable in the discussions of the general demurrer and its correlatives. We are taught to con the rule that the general demurrer cannot be waived. Then this rule must be protected by construction at the stages of the motion in arrest, appellate procedure, collateral attack, Res Adjudicata, and due process of law. § 24. The Prescriptive Constitution and the General Demurrer. Look at the Trilogy of Procedure, its trio of principles, and see if they are not indeed "the condensed good sense of nations," each and all standing to protect the attitude of the State in procedure, which de- pends upon the rule that the general demurrer cannot be waived. Look at Campbell v. Consalv^ and Clark v. Dillon, and note that there was something relating to the functions of pleading that the courts did not roundly express and make prominent. And so it will appear from C. & A. R. R. V. Clausen (HI.). Suppose that in any one of these cases the court had said, "There is a trio of principles that are major-organic maxims, that must direct the construction of all codes and practice acts," and had named the Trilogy of Procedure with its cognates. What digest, what Cyc, what rows of books, would have told us as much, and done as much to light up the jungle ? 44 THE LAW RESTATED Campbell v. Consalus and Clarh v. Dillon arose under the New York Code ; and yet does not each sustain the trio referred to ? Does not the Illinois case do the same? To make pleading easy and possible for Chicago lawyers a Municipal Court act was enacted. It was hailed by forensic orators and laAv journals as the emancipation of the lawyer from the yoke of technicality, until the higher courts refused to con- strue the act by legislative rules, and construed it by the Trilogy of Procedure. The law of Campbell v. Consalus (Guest v. Warren) (Eng.) is paralleled in Walter, 250 111. 420; and Clark v. Dillon is paralleled in C. & A. R. v. Clausen. Mondel v. Steel, L. C. 77, 3 Gr. & Rud., is reflected from all of these cases. Thus the rules of the general demurrer and the Trilogy of Procedure are reaffirmed in a variant language. Take all these cases together, and see if they are as worthy of at- tention as the Trilogy of Procedure. These are in the language of all nations, while if we seek to express them in cases, we meet with great perplexity, and uncertainty attends our efforts. Cases are multitudi- nous, and each province, each coxirt, each author, each school, each pub- lisher is ambitious or interested to select a new or a different set. Mr. John W. Smith, the progenitor of leading case books, selected Rushton v. Aspinall (De non apparentibus) ; Bristow v. Wright (allegata et pro- bata must correspond); and Dovaston v. Payne (Verba fortius). Of all these cases selected, which is unworthy and ought to be recalled? Which could be recalled vnthout consequent judicial anarchy? Whose are better? These stand for the Trilogy of Procedure. For 'New York we have selected Campbell v. Consalus, Cl^rh v. Dillon, and Tooker v. Arnoux; for Illinois, Thomas v. P., Wright v. Dodge, and Fish V. Cleland, L. C. 12c, 3 Gr. & Rud. Elsewhere we present the Federal cases and those from other states. The lines of cases selected are endless and constantly changing. Story would reject those that Thompson and other professional writers would choose. Commercial- ism insists on the "late" case, and advertises this as the "ease winner." But choose as you may you cannot choose better cases than did Smith (see L. C. 5, 135, 217, 3 Gr. & Rud.). Cases may come and cases may go, but the maxims go on forever. They are the law, and the cases merely illustrate their application. They are old and well worn, but then they have worn best. § 25. The Prescriptive Constitution the Organic Law of Pro- cedure. The attitude of the state has not been taught the student, and TROM ITS LOGIC AND PHILOSOPHY 45 therefore he does not appreciate the importance of the maxim Interest reipublicoe ut sit finis litium, and the rules of evidence and of plead- ing that it dictates. (See Eules of Res Ad judicata, 4 Gr. & End.) Many authors make no mention of the requirements of the state, and Story himself merely intimated some of these. The Code cases followed the English, as did Campbell v. Consalus, Clark v. Dillon, and Tooker V. Amoux. Illinois made notable decisions in Thomas v. P., Walter, 250 111. 420 (Municipal Court act), and in P. v. Gray, 260 111. 140, 49 L.I{.A.(N".S.) 1215 (what the mandatory record mtist show in the crim- inal case). In the latter case it is held that the indictment must appear. In the other cases it is held that the statement of the cause of action must juridically appear. So we see that pleadings are required in civil and in criminal cases alike. (1 Gr. Ev. 61-65.) Mondel v. Steel, L. C. 77, 3 Gr. & Eud. applies to all cases alike. It is cited and followed in Milbra (Ala.) 46 L.E.A.(]ST.S.) 274, 277, 278; Palmer v. Humiston (O.) 45 L.E.A.(]Sr.S.) 640; Nalle v. Oyster, 230 U. S. 165; Vicksburg V. Henson, 231 U. S. 259 ; (pleadings are jurisdictional and limit the judgment — a judgment without or beyond the pleadings is void) ; Munday v. Vail, L. 0. 79, et seq.j Garrett. Look at the maxims — Trilogy of Procedure — -and note how they inter- act, and that from each all can be deduced, also, their very important . Huinistnn : ililhra v. Steel Co.; Mondel v. Steel, cited and fol- lowed in Milbra; (Sayre J.) Short v. Taylor (Barclay J.), 110 Mo. 630, .38 Am. St. 626, 38 S. VV. 9C2; .Jolirdahl, 72 ilinn. 119, 4,') L.R.A. 541, 71 Am. St. 471, 473, citing Mondel. Whoever will master this Jlondel Case will per- ceive limitations of Aider. Omission of material allegation can- not be eured. These are jurisdictional. Palmer v. Humiston ; Xalle v. Oyster; Yickshurg v. Benson. Such a defect Aider. — is available upon Collateral Attack. Windsor v. McVeigh L. C. 1, 3 Gr. & Rud. and cases cited. Nalle. The logic and the philosophy of Procedure has been wrecked by the application of Aider. ( See Mandatory Record. ) Aider is limited by the Trilogy of Procedure. §§ 1-13, Restatement. Clark V. Dillon; C. d A. R. R. v. Clausen (111.) ; See citations to these cases in the Restatement. Concordare leges legibus est optimus interpretandi modus. 2 Gr. & Rud.; Bliss Code Pleading § 141. Aider can be mastered from the at- titude of the state. Alterum connect- edly considered with Quod ab initio and Consensus tollit errorem. See also Rushton, Dobson and Goldham o. Edwards. From these maxims and their citations in the Restatement the logic and the philosophy of Procedure can be comprehended. As Contract is embedded in a few maxims (§ 17, Restatement ) , so is Procedure. The attempt to write Procedure from stat- utes and cases has led into bewilder- ment. The law of Aider in the Amer- ican courts will illustrate this fact. Of such have come the gifts of Feu- dalism, its Jackson v. Peskeds and its Stennell r. Hogg. "When its philosophy is lost the law is lost." AI.IENS: Tracing title through. 37 L.R.A.(X.S.) 108. ALLEGANS CONTBARI.V NON EST AtT- fliendus: He is not to be heard who al- leges tilings contradictory to each other. 2 Gr. & Rud. See Kihil prussumus con- tra rcritatcm. This is the leading max- im ot the estoppels. Repugnant pleadings are void. Pain, ex parte, L. C. 107, 3 Gr. & Rud. : Hum v. Vole. 1 Gr. & Rud. (equitable estoppel). One cannot admit and deny at the same time. Dickson v. Cole, et. seq.. 3 Gr. & Rud. One offer- ing incompetent evidence cannot object to it. Jackson, 35 App. Cas. D. C. 41. (See Modus et Conrentio) . ALLEGATA ET PROBATA JMUST COB- respond. See Frustra protiatur quod pro- hatum non relevnt. A recovery must be Secundum allegata et probata. Bristow r. Wright. L. C. i:;r>. 3 Gr. & Rud. A "cause of action" must be alleged. Quia, quid, quorum quo; De non apparentibus ; sec- tion 10. Story's Equity Pleading, quoted in section 47, Hughes' Equity In Pro- cedure ; Campbell r. Consalus ; Walter. 2.j0 111. 420 (municipal court case) ; Magruder, 7 App. Cas. D. C. 303. 310; liroune, 39 Id. 415 ; Vicksburn r. Henson, 231 IT. S. 2,-.fl. See Allkc.atioxs, 2 Gr. & Rud. There must be allegations to give jurisdiction. De non; Qiiis. quid. Entry of a judgment does not render the pleadings functus o/flcio. Vick-sburg i\ Henson; Munday v. Vail, L. C. 79 3 Gr & Rud. ; 'Nolle v. Oyster. 230 U. S. SC.'i ; Palmer v. Humiston (Ohio) ; \cudeeker SI N. Y. 296, 00 L.R.A. (N.S.) 14 ; ililbra. TEXT-INDEX 59 Allegata, etc. — 45 L.R.A.(N.S.) 277. Moniingstar, 211 N. Y. 465. 52 L.R.A.(N.S.) 740. Al/I-ISN V. PATTERSON, 7 N. Y, 476, 57 Am. Dec. 542. Cited, sec. 8, Restatement. AI/rEBUM HON LAEDERB: Hurt not one another. Cited, Preface, also sees. 4, 11, 12, 13, 14, 16, 19, 20, 21, 22, 25, 26, Restatement. This maxim is a part of Juris praecepta sunt haec, &c. post. For brevity we cite it as Alter- um. This has long been conceded to lie the most instructive maxim of tlie law. It has been thought to contain the germs of the law. From it the law can be unfolded. We have called it the Lawyer's Golden Rule." We al- so make it one of the Trilogy of Eq- uity ( see Equity in Procedure ) . Man- ifestly it is related to Interest reipub- Ucce and its cognates. So we see tliat it involves Res Adjudicata — Former Jeopardy — ^their cognates and rami- fications. Thus it is related to Salus populi suprema lex, and its cognates. It is on the title page of Broom's Maxims, next after which he intro- duces Salus, and discusses it without any mention of Alterum, which he nowhere cites in the body of his work. We think this was a grave omission or oversight. While Broom had a good idea his vision was not broad. Alterum, by Interest rcipub- licce, is related to the rules and the necessities of Res Adjudicata and its public policies. These call for and dictate the Mandatory record and its Requirements — the substance which Serjeant Williams unwisely thought could be waived or legislated away. (See Williams, Serjeant; also Story.) It is also related to In pari delicto, which is so variantly expressed. The maxims of Equity are: "He who hath done iniquity shall not have equity;" "One must come into courts with clean hands;" "He who seeks equity must do equity." Of the last we may well observe here that one must "render unto Caesar the things that are Csesar's" — which, in a general way, may be said to mean, he must give to the court the record required if he would have a Coram Judice proceeding. For this he must know and respect the Trilogy of Procedure and its cognates and especially Quis, quid. The mandatory record, its require- ments, rules, tests and ramifications, have nowhere been better outlined than by Story. Most authors and courts have either dodged or straddled its re- quirements and left them in cloud and fog. Judges on the bench at last ac- Alterum, etc. — knowledge this fact, as Judge Lamm did, in Pennowfsky v. Goerver. The failure to dwell upon the man- datory record and its cognates has been a grave sin of omission, while the open denouncement of that record by authors and courts has been a, sin of commission of still graver consequence. We refer to some of these instances in speaking of Story. The initial of Con- stitutional Procedure lies in that rec- ord. It is a constitutional implication. No useful protecting court can be oper- ated without it. The Greek knew the initial from which the Parthenon was drafted, and that initial perished with him. The Roman knew the initial from which Constitutional Procedure must be drawn and developed, and but for his maxims the Prescriptive Con- stitution, the initial of good govern- ment, would also have been lost, like the initial from which the Parthenon was drafted. But humanity was blessed by the preservation of the greatest bulwarks of all our rights and liberties, as we shall, from many angles and viewpoints, show. If a Sheik in Morocco would respect the foregoing, he would give a better government than would an American court which denounced and denied the Prescriptive Constitution, because no one could "put his finger on it" in the Declaration of American Independence, and in the Constitution of the United States. To this pass we have come at last. See Gulling; also Story, Rushton. This maxim is also related to Res inter alios acta: (Sec. 4, ante) a maxim important in the law of Evi- dence. One of its phases is Non hceo infcedera veni — ^the law of assent in Contract. Two cannot waive or affect what belongs to a third. Id quod nostrum: Pacta conventa: Pactis privatorum juri publico non derogatur. The "theory-of-the-case" courts cannot understand why the parties cannot stipulate away the Pleadings. See Gulling; also Story and Rushton. A great case was decided in New York on the Code. It held that "The parties could not by stipulation dis- pense with the Pleadings." This was in the case we cite so often, — cite and try to make prominent in order to in- dicate its Importance — Campbell v. Consalus. But it is a naked decision, quoting and following Guest v. War- ren (Eng.) The logic and philosophy of these decisions is imbedded in the 60 THE LAW RESTATED Alterum, etc. — above maxims. These defend the atti- tude of the state — Ctesar — in judicial proceedings. Failing to make these facts comprehendible has been a sad omission, and the leading away from them has been sadder, and we say that good government should not have per- mitted it. But it did, and as a result we have the jargon of judicial anarchy for legal literature. We have cited enough clues to justify these accusa- tions. The call for "Revolution" in Bar Associations is well warranted. The legal profession is not of less im- portance to this government than is its military establishments. See Mul- titudo imperitorem perdit curiam. The contention for a judicial hier- archy is abroad. For it is contended that courts are not bound by their records. Any decision that they are Is timely. Yicksburg v. Henson; Wal- ter, 250 111. 420 (Municipal Court Act of Chicago). See Story; Introductory Chapter, Restatement. Melius est petere fontes quam sectari rivulos. (4 Gr. &, Rud.) The general demurrer and its rules must be comprehended from the foun- tains of the law. There are high poli- cies of Procedure of the state, and one of these is Res Adjudicata, which, is founded on Interest rcspublicw. Tlie test of the mandatory record for this function begins at the stage of the gen- eral demurrer, whieh continues, throughout, the same thing although it changes its name at one stage to Motion in Arrest, at another to Order of Repleader, at another to Appellate Procedure, later to Collateral At- tack, to Ses Adjudicata; and to Due Process Of Law. The general prevailing view that at these dif- ferent stages the rules of Construc- tion vary is opposed to first principles. Ooldman v. Edwards. For you have only to consider that at all stages the question is a jurisdictional one. This question concerns the state, and not more at one stage than at another. For the state — the third person — the tests are always the same. No one can waive, to affect the state Alterum, etc. lies inter alios, etc. The general demurrer cannot be waived (Sees. 4, 10, 11, 22, 26), but it could be, if at the stage of the motion in Arrest Biore liberal rules could be applied than at the first stage. But many courts and authors assert that the further the case progresses, or the ger the test is delayed, the more Alterum, etc. — liberal will be the construction to up- hold a pleading; and that a pleading^ that would be held fatally bad on gen- eral (not special), demurrer, may be good at a later stage. 3 Bouv. Die. Rawles 3d Revision (1914 ed.). Title Pleading. And with blindness to reason and congruity and to the continuity of the logic and philosophy of the law, it is constantly held that on down, at each successive stage, the construction to uphold the pleading deepens and wid- ens until the verdict is reached, where- from it is held that the omission of material allegations is cured! (See liushton; Story; Magis.) That from the jury's findings, the pleading that would have been fatally defective on general demurrer is made good by the verdict! {See Hitchcock v. Eaight, L. C. 12, et seq., 3 Gr. & Rud.) To illustrate: In Henry, 49 L.R.A.(N.S.) 1-44, there was an omission of the main and leading equity in that kind of an action (Lester, L. C. 341, 3 Gr. & Rud.; Ealligan, 49 L.R.A.(N.S.) 112-120), but the omission of this main equity was held supplied from the findings of the referee (the verdict in an equity case) . From the findings, and from irrelevant evidence, the omitted allegation was imported into the hill in Equity. See Story. The referee and the trial court found for the defendant, but on appeal the case wag reversed. Here it seems well to observe that if one material allegation can be imported from the findings, so can another, and thus on until aU material allegations are supplied; and therefore from a bare verdict the en- tire pleadings can be found! (Pro- hatis extremis prwsumuntur media.) And so we see how it is that the gen- eral demurrer can be waived in some courts. The sophistry and loose talk about this important matter is indi- cated in Rushton; also under Story. See Quod ah initio, etc. Vno ahsurdo dato infinita sequun- tur. That the law is a spirit, and not type on paper, is illustrated by Alter- um non Icedere and the maxims that are cited with it in the Restatement. It is cited in the Preface; also in sec- tions 4, 10, 11, 14, 16, 22, 26. It is a part of the Lawyer's Golden Rule, the greatest maxim of the law, as indi- cated in the Introductory Chapter; also in the Preface and in section 26. The Restatement of the law is not dug TEXT-INDEX 61 Alterum, etc. — from the ground, but it is triangu- lated from the Mount Everests of jurisprudence (See Preface, Equity In Procedure) and chief among these is Alterum. To comprehend this fact is most important to the student. In the Restatement, this maxim and its cognates are gathered for a center, and the vital principles of the six leading subjects are gathered and set out around this center, in a periphery. And as will be seen the reasoning is both centrifugal and centripetal. See Preface; also §§ 16, 26, Restatement. This maxim protect"? the attitude of the state; wherefrom the logic and the philosophy of the law begins. Deduc- tions herefrom are the rivulets flow- ing on down below. Melius est petere f antes quam sectari rivulos (4 Gr. & Rud. ) . On the other hand the Feudal Lawyer took for his center the mottoes of Imperialism (§ 21), such as "the King can do no wrong," and next, "Parliament is omnipotent." With these ideas he next gathered his stat- utes and his cases and commenced his career of confusion and bewilderment. (See Feudal Lawyer; Equity; Liter- ature; Story; Rushton; Codes.) See how he emasculated the Code. And now after a, domination of two thou- sand years what block, what stone or brick has Feudalism given that can be laid into the foundations of a great government? See the truth of this proposition from The Law Restated. AMENDMENTS: Liberal rule stated in Neuieck, 37 App. Cas. D. C. 576. Equity In Proc. ANDKEWS V. ANDREWS, 188 U. S. 14-43. A record is not a verity. The entry of a judgment does not foreclose inquiry into the facts upon which it was entered. Sufficient facts must ex- ist and must appear in the right rec- ord to sustain a judgment at all stages, times and places. Entry of a judgment does not render the plead- ings functus officio. They still con- tinue a part of the judgment record, and at all times they limit the judg- ment to the facts stated in the plead- ings. A judgment rendered on insuf- ficient facts, or above and beyond the facts ( Viclisiurg v. Benson ) , is null and void. Whenever the judgment is offered in evidence, it must be at- tended by the pleadings, and these are opened without regard to the com- pacts {Campbell v. Consalus) or the relations of the parties, their wishes. Andrews, etc. — exceptions or objections or assign- ments of error. Nalle v. Oyster. The facts upon which a judgment is entered must be real, bona fide, and show a right to recover. Scott v. Me- Neal; Fabula non judicium, false and sham pleadings do not attract juris- diction. Graver, L. C. 103, 3 Gr. k Rud. Ex dolo malo: Haddock. Pleadings are jurisdictional. De non. The general demurrer testa them and it is never waived. Alterum. ANDREWS V. liYNCH, 27 Mo. 167. Stated in Equity in Procedure. Limita- tious of liberal construction. Dobson v. Campiell. There are fixed and funda- mental rules that cannot be consented nor contracted away. Catriphell v. Con- salus. Toolcer v. Arnoux. There are limitations of Aider. Rushton. General denial will not aid an omitted allegation. See Aider. ANIMALS: Liability of owner. May v. Burdett, i Gr. & Rud. 2 R. C. L. 1055- 1219. ANOTHER ACTION PENDING: 2 Gr. & Rud. ; Equity In Procedure. ANSWERS: 2 Gr. & Rud. Defences must be pleaded. Andrews v. Lynch; Palmer V. Humiston. May be waived. Henry v. HilUard stated under Lester v. Fowcroft. See Aider. ANTICIPATING A DEFENSE: 2 Gr. & Rud. ; Equity In Procedure. It is not surplussage. Johnson, — Ind. — , 39 L.R.A.(N.S.) 1207. Contra: Florida Co. V. Bell, 176 V. S. 326. ANTICIPATORY BREACH: Frost 1). Knight, L. C. 308, 3 Gr. & Rud. : As a basis for Specific Performance. Miller, 68 W. Va. 526, 36 L.R.A.(N.S.) 408. See ANTlSDEl' V. R. R. 26 Wis. 145, 7 Am. R. 44, Pom. Code, 533. This case is a cognate of Dovaston v. Payne, also of Clark u. Dillon. The latter is a Code case extendedly discussed under the title Code. The student cannot do better than connectedly read these three cases. They stand for Yerba for- tius. Antisdel also stands for the rule that a statutory record must affirma- tively state that it iiicludes "all of the evidence." This is a most import- ant rule of Appellate Procedure. The learned editor of the American Re- ports did not include the Procedural features of Antisdel. These he omit- ted. He made a Railway case of it. See LiTEBATUEE. The rules in Antisdel are among the most important to a practitioner. It also shows that Yerba fortius is an important rule of Appellate Pro- cedure. The rule involved was made a special demurrer by Serjeant Wil- liams in, Dovaston v. Payne. By ref- erence to this case we can see the kind of matter he cited to support his points. And such is the matter cited in Tidd, Chitty, Stephen and their followers. 62 THE LAW EESTATED APPEARANCE: See Process; Pennoyer, L. C. 58, 3 Gr. & Eud. APPELLATE PKOCEDURB. Error must be presented. Windsor, L. C. 1, 3 Gr. & Eud. Appellant must present it. Yan- deventer. It must prejudice. De min- imis; Morningstar. Assignment of errors depends upon the mo- tion for a new trial. S. v. Dunn; S. v. MoCray; sec. 53, 1 Gr. & Eud. ; Con- sensus. Formal error; how presented. See Statu- tory Eecord ; Leading Cases 2900-299, 3 Gr. & Eud. ARMORY V. DELAMIRE, Smith's Lead- ing Cases, L. C. 180, 3 Gr. & Eud. See Omnia prcesumuntur contra spoliatorem. ARRAIGNMENT OF PLEA: Essential to invest a court with jurisdiction Grain ■11. V. S. Contra: Garland v. S., 232 U. S. 642. Many cases cited in 27 L.E.A. (N.S.) 1181-1187. ASHBY v. WHITE. Smith's Leading Cas- es, L C. 273, 3 Gr. & Kud. VM Jus ibi remedtum (who is one injured — who is a wronged party) ; Actio non datur: 31 L.R.A.(N.S.) 1106-1112; 2 British Eul. Cas. 709. ASSENT: Essential to a contract. See Non hwc, etc.; Lampleigh v. Braithwait, L. C. 301, 3 Gr. & Eud. Contract. ASSIGNMENTS OF ERROR. See 2 Gr. & Eud. Depends on motion for new trial. (S. V. Dunn, S. v. McCray. ASSUMPTION OF RISK: Tolenti; Priestly ik Foivler. AUDI ALTERAM PARTEM: The law hears before it decides. Standard Oil Co., 224 U. S. 270 ; Windsor, L. C. 1, 3 Gr. & Eud. (ablest rfeumS). Due Process of Law ; Hughes Proc. 51-77. "Quicunque aliquid stauerit, parte in- audita altera, JEguum licet statuerit liaud aequus fecerit." (He who de- cides anything, a party being un- heard, though he should decide right does wrong.) Bro Max. 113; 1 Hughes, Proc. § 77. AUTHORITY: An authority must be pleaded. See Res Adjudicata ; Manda- TOKY Ebcokd; Wilson v. Loioenthal; Pleadings, AUTOMOBILES : Contributory negligence of driver of horse meeting on the high- way. Dreier, — la. — , 50 L.E.A. (N.S.) 566, n. When used for members of family of own- er: 50 L.E.A.(N.S.) 59-68, n. Owner's liability for injury to guest: 50 L.E.A. (N.S.) 1100. Driven by a third person; liability of own- er: Sigler, — Cal. — , 51 L.E.A. (N.S.) 772. Damages by child driving: Kayser, 125 Minn. 277, 51 L.E.A. (N.S.) 970. Taxing of; validity of excise or license tax upon. HofEert, — S. D. — , 52 L.E..4. (N.S.) 949-959, n. Homicide by operation of. S. v. Goetz, 83 Conn. 437, 30 L.E.A. (N.S.) 458, n. ; Min- or, 65 Wash, 428, 42 L.E.A.(N.S.) 1178 (care required of pedestrians). Who liable for negligence of the chauffeur. Meyers v. Tri-State Co. Minn. 44 L.E.A. (N.S.) 113-119: Cases. Forbes, — Ark. — , 51 L.E.A. (N.S.) 1164 (liability for chauffeur) . Oivner liable when the machine is driven by another. Stowe v. Morris, 147 Ky. 386, 39 L.E.A. (N.S.) 224, stated 41 L.E.A.(N.S.) 777: cases; McNeal, — Okla. — , 41 L.E.A. (N.S.) 775. Liability for acts of chauffeur, — Mich. — , 37 L.E.A. (N.S.) 834, n., 134 N. W. 14. Garretson, — Wis. — , 40 L.E.A. (N.S.) 457, 136 N. W. 186. Milne T. Kane, — Wash. — , 36 L.E.A. (N.S.) 88. See Agency ; McManus v. Crickett. Qui sentit commodum sentire debet et onus. This maxim is the burden of the above cases. Statutory liability of oicner. Daugherty, — Mich. — , 45 L.R..4..(N.S.) 699, n. : White Oak Coal Co. — Ohio — 46 L.E.A. (N.S.) 1091. n. Unlicensed as affecting damages. Bourne 209 Mass. 155, 35 L.E..\.(N.S.) 701, n! R. R. Cros.sings; Care required at. Walters Mont. 46 L.E.A. (N.S.) 702, n. Care to be exercised in the use of Kel- logg, 204 N. Y. 92, 39 L.E.A. (N.S.') . See Authority. Speed of; To show negligence: Dugan Pa. — , 34 L.E.A. (N.S.) 778-784. Insurance: Relating to. Harris v Am Co — N. J. — , 44 L.E.A. (N.S.) 70-76. ' TEXT-INDEX 63 B BAII/MBNTS! Coggs v. Bernard, et seq., 3 Gr. & Rud. Duty of carriers to pas- sengers. Readhead v. R. R, BAILY V. HORNTHAt, 154 N. Y. 648, 61 A. S. 643. Conduct before a court may supply pleading. Gulling. See Campbell v. Consalus; Bartlett. Allegations may be supplied by oral statements of counsel. Pleadings may be dispensed with. See Campbell v. Con- salus; Knickerbocker; Bartlett v. Cro- sier, L. C. 6, 3 Gr. & Rud. Pleadings cannot be supplied by affidavits and oral claims. Walter, 250 111. 420, cited in the Restatement. See Gulling and its cluster. Verba fortius applies to a pleading. Bowen; Knickerbocker; Minnesota; Munday; Clark V. Dillon. See Baker v. Warner. BAKSR V. WAKNEB, 231 U. S. 588- 593. Cited, sees. 8, 20, 22, 23. Re- statement. See Goldham; Garrett, North Carolina. BANK: lilability for default of corres- pondent. Brown, 59 Pla. 608, 52 L.R.A. (N.S.) 608-668, ext. n. BARRON V. BALTIMORE, 7 Pet. 243, L. C. 241, 3 Gr. & Rud. States not bound by Federal Constitution unless tbey are named to be bound. Roy n'est, etc. Tbe iirst ten amendments do not apply to tbe states. Vhbanks, 208 U. S. 481 ; Ensign, 227 D. S. 597. BARTLETT T. CROZIER, 8 Am. Dec. 428. De non apparentibus. Kent re- affirmed Rushton in Bartlett. It is a cognate of Campbell v. Consalus; Garrett. BEAUMONT t. REEVE, 8 Q. B. 483, L. C. 367, 3 Gr. & Rud. Cited, sec. 15, Restatement. Entry of judgment does not foreclose inquiry into tbe "cause of action." Andrews v. Andrews: Haddock; Fabula non judicium; Alterum. BELKNAP V. SCHILD, 161 D. S. 10, L. C. 260, 3 Gr. & Rud. Hopkins, 224 U. S. 636, 35 L.R.A. (N.S.) 243-251. Sov- ereignty can only be sued by Its consent. Rex non potest peccare. BENBDICTA EST EXPOSITIO QUANDO res redimitur a destructione : Blessed is tbe exposition wben tbe thing is saved from destruction. 4 Coke, 26. Cited, sees. 8, 16, Restatement. BENIGNAE FACIENDIAB SUNT INTER- pretationes propter simplicitatem lai coram ut res magis valeat quam pereat : et verba intentionenon e contra debent inservire : A liberal construction should be put upon written instruments, so as to uphold them if possible. See Vt res magis valeat quam pereat; Verba inten- tione debent inservire. 2 Gr. & Rud. ; This is the rule of construing a pleading on general demurrer also on motion in Arrest and at all other stages. But see Baker v. Warner, 232 U. S. 588, 593, BIDDLB V. BOYCE, 13 Mo. 532-534, Hughes' Equity In Procedure. Cited, sec. 8, Restatement, The first Code Case. A glimpse of the Code from Biddle and its cognates Gramp v. Dunnivant with which we cite Carson v. Ely, which is opposed to Gramp and, both in the same volume and almost on succeeding pages, also from Bowen, Weber v. Lewis, and Biddle, etc. — Clark v. West, Eno v. Woodworth and Allen V. Paterson, (the latter three N. Y.) will be very instructive to the student. With Biddle the black clouds began to gather over the way and these have gathered and darkened until guiding stars are quite lost to view ; now, the only "Datum Post" and guide are the gather- ings of cases from digests and Cycs. None of these have plainly pointed out that the thing lacking is familiarity with a few fundamental principles which we gather and state in §§ 1-13, Restate- ment. See Logic ; Munday. These have not been cited and explained. (See Pom- eroy ; Chitty ; Stephen ; Literature ; Logic.) The guiding star has been "a jargon of words," — Coke's three degrees of certainty. Dovaston v. Payne. Ex- position of the Code has been in the style of Jackson v. Pesked, and of Byre. J. in Dovaston. The quotations from Tidd under the title of Literature will show. The bold, direct, unequivocal and quite clear style of Story has been avoided ; his sections are among the best Code sections, still he is not quoted and followed. (See Story ; Rushton; reprinted in Bartlett, by Kent.) How to plead a contract under the Code has not been settled and the more cases and statutes that have come the greater the confusion. Tooker v. Ar- noux (N. Y.) stated under the title Codes, Restatement, will introduce the facts ; and so will Bowen and Weber ; also Logic. Gather the above data in the original, and connectedly look at it, and see it the Code has not failed by attempting to construe it by Feudal theories and its local and flat doctrines. (See §§ 1-20, Restatement ; also consider Baily and Baker, supra aad their cognate cases). An impression gained by such investiga- tion will disclose facts that the student should know. See Munday v. Vail; Wing. BLISS: Code Pleadings, § 141, fundamen- tal principles rightly construed are tbe best code. Campbell v. Consalus; Wal- ter, 250 111. 420 (Municipal Court Act for Chicago). End Stat. 162, 182. See Codes. BONA FIDE PURCHASERS: 2 Gr. & Rud. : Cases. Also Equity In Proc. See Swift; Miller v. Race; LeWeve; Bassett. BONI JUDICIS EST AMPLIARE JURIS- dictiouem : It is the duty of a judge, when requisite, to amplify the limits of his jurisdiction. Lex non exacte; Ex- pressio eorum. To uphold fundamental law the letter of the act may be de- parted from. Receditur a placitis juris. BONNELL v. WILDER, 67 III. 327, L. C. 185, 3 Gr. & Rud. Cited, Equity In Procedure, also sec. 9, Restatement. Actore. BONUM NECESSABIUM EXTRA TERM- inos necessitatis non est bonum : A thing good from necessity is not good beyond the limits of the necessity. See Self Defense, 4 Gr. & Rud. Like a plea of accident it must be unmixed with negligence or illegality. Salisbury. BOWEN v. EMMERSON, 3 Or. 452, Hln- ton's Code cases 8, stated, 34 L.R.A. 64 THE LAW KESTATED. Bowen, etc. — (N.S.) 371, in the dissenting opinion to Weier v. Leicis. It is also stated in Equity In Procedure page 446, also un- der the title Vt res magis. In this case Verba fortius was more strictly applied than it was in Dovaston, The hopeless conflict over the maxim last cited is indicated in the notes to Weber^ wherein many cases are cited and Pomeroy is quoted and approved, also other Code au- thors. But in none of these discussions is the maxim quoted and vindicated bet- ter than was done by Pomeroy who both approved and denounced it. (§§ 533, 54b, Code Remedies.) Fie never cited the English cases that discuss that maxim. Bowen is a most instructive Code case. See Gulling. BKEACH OF CONTRACT: See RESCIS- SION. In limine breach: Frost; Hochster. Enticing to break: Quinn v. Leathem. Cause for rescission: Van Houten ; Willard V. Stone : Ex ilolo malo. BKISTOW V. WBI«HT. Smith's Leading Cases, L. C. 135, 3 Gr. & Rud. Citi'd Preface, also sec. 24, Restatement. Alle- gata et probata must correspond. See Frustra probatur, 2 Gr. & Rud.; Milbra ; Codes ; Vickensheets v. Kaufman, 28 Ind. 257; Tooker v. Arnoux ; Neudecker, 81 N. y. 296, 50 L.R.A.(N.S.) 14; Jaquette, 34 App. Cas. D. C. 41. Rushton, Bristow and Dovaston re- spectively L. C. 5, 135, 217, 3 Gr. & Kud. are the most important of Pro- cedure cases. They ought to be con- nectedly considered with Story's sec- tions and §§ 62-65, 1 Gr. Evidence; also with §§ 1-13 of the Law Restated. Whoever will look at the above data will wonder how empiricism could lead courts to countenance the "Theory of the case." See Gulling. When questions of Equity are ar- gued the old cases and maxims are sought as well as late cases. Now why are not the maxims and old cases of Procedure sought? We will have to search far and wide to find where the above classics are cited. These cases are neither cited nor are they understood. But they are denounced. Bristow, etc. — Why these things are so the stud- ent should stop, pause and consider. See Feudal Lawyer; Literature; Logic; Departure; Restating the Law; Pomeroy; § 18, title Codes, Restate- ment. In all systems of Procedure where Pleadings are required there must be allegations. Allegations are jurisdic- tional; therefore one thing cannot be described and a different thing recov- ered. Expressio unius. There shall be no departure; therefore variances cannot be waived. Frustra proiatur quod prohatum non relevat. It is claimed in some quarters that the rules of Equity are more liberal than they are at law. Now what these are in Equity may be judged from Lester v. Foxoroft. If one sues for specific per- formance of an oral agreement he must allege possession taken under and in pursuance of the agreement in order to state a case. Lester, L. C. 341, 3 Gr. & Rud. Without this alle- gation he states no "cause of action." Probata will not supply the omission of that allegation. Lester, Contra: Henry v. Hilliard; Gulling, Refer- ence to these cases will indicate to the student the importance of the ques- tion in Bristow. Bristow applies to all systems, gen- eral or special. It is a Code Case. BBONSON V. KINZIE, 1 How. 311, L. C. 238, 3 Gr. & Rud. Ex post facto laws. Calder v. Bull, 2 Dallas 386, L. C. 237, 3 Gr. & Rud. ; 227 U. S. 150, 161. BKOVVN V. S., — Del. — , 25 L.R.A. (N.S.) 661. Cited, sec. 18, Restatement. BKOVVN V. WESTBKN UNION TJSL,. CO, 233 U. S. 542. Cited, sec. 19, Restate- ment. BURDEN OF PROOF. See Actore. A phase ot Verba Jortiui. TEXT-INDEX 65 c CAtTE'S CASE, Smith's Leading Cases, L. C. 356, 3 Gr. & Rud. Bailmpnts-Inn- keepers. 35 L,.E.A.(N.S.) 350: 45 L.R.A. (N.S.) 300. CAMPBELL V. CONSAIiUS, 25 N. Y. 613, 616. An instructive case. See Codes. CAUSE OF ACTION. Must appear from the right Pleading. De non; Quis, quid. See Allegations. Campliell v. Consalus: Walter, 250 111. 420. "What ought to he of record must 6e proved hy record and by the right record." Mil- bra, Ala. 46 L.R.A. (N.S.) 274, 277, 27S, citing Mondel v. Steel, L. C. 77, 3 Gr. & Rud. Alterum: CAVEAT EMPTOK: Let the purchaser beware. Chandelor v. Lopus, L. C. 374, 3 Gr. & Rud. also post. Pasley v. Free- man, L. C. 375, 3 Gr. & Rud. ; Laidlaw V. Organ. See Leading Cases 374-384, 3 Gr. & Rud. Also under appropriate titles In this work. CERTAINTY: Pleadings must have. See Trilogy of Procedure, §§ 1-13, Restate- ment. Already introduced. R. v. O'Brien; R. v. Vandercoml} ; R. v. Wat- ers; R. V. Wheatley ; V. S. v. Perez, et seg., 3 Gr. & Rud. See Res Adjudicata ; Collateral Attack. Rules of certainty are dictated by require- ments of Res Adjudicata and Due Process of Law ; Kewaune County v. Declcer, L. C. 30, 3 Gr. & Rud. ; Clark v. Dillon; See Codes ; Vicksburg v. Hensnn. CERTUM EST QUOD OERTUM REDDI potest : That is sufficiently certain that can be made certain. Vt res magis val- eat quam, pereat. These rules are ap- plied to uphold a pleading or a record. Benignae faciendiw. CESSANTE RATIONE LEGIS CESSAT ipsa lex : Reason is the soul of the law and when the reason of any particular law ceases, so does the law itself. Lex non exacte. CHAMPERTY. S. V. Chitty ; See Champ- erty, Maintenance and Barratry, in 2 Gr. & Rud. ; also in 4 Id. CHANDELOR v. LOPUS, Sm. L. C, 374, 3 Gr. & Rud. Deceit ; Caveat emptor ; 35 L.R.A. (N.S.) 292, ext. n. Pasley v. Free- man, stated, 49 L.R.A. (N.S.) 1219-1224 (able resum^). CHICAGO & A. B. B. V. CLAUSEN, 173 111. 100, 103, 70 111. App. 550, 43 Chic. Leg. News. 357-359. Cited in Sees. 8, 21, 24, 25, Restatement. This ia one of those progressive cases that recognizes a limitation of legislative authority to interfere with the neces- sities of the judicial department. These cases might well be noticed by those who attempt to treat Constitutional Law as a partitioned and irrelative subject. In this connection consider Bliss Code PI. §§ 138, 141, quoted un- der title Codes, 4 Gr. & Rud.; also Clarh V. Dillon; Rose v. Milne, 12 Leigh (Va.) 204, 37 A. D. 346; 1 Gr. Ev. 73; Davis v. Jacksonville Line (Judge Barclay, Mo.). Follow these cases through the Restatement, and the Chicago, etc. — Prescriptive Constitution will be dim- ly outlined. Statutes cannot change the substance of Procedure. Walter, 250 111. 420. Nor can the parties con- tract it away. Introductory Chapter ante. See Codes.; Campiell v. Con- salus. Loolc from these cases and see what Constitutional authors omit. CHICAGO MUNICIPAL COURT ACT: Universal, Constitutional principles — the Trilogy of Procedure applies to. See Preface; also §§ 13, 21, Restate- ment. Oral statements and affidavits will not enlarge or vary Pleadings; a "cause of action" must be stated Walter, 250 111. 420. Mondel v. Steel, L. C. 77, 3 Gr. & Rud. This title should be read along with G. & A. B. V. Clausen; and Campbell V. Consalus. Popular and brilliant re- formers and essayists are filling lay journals and Bar Association Reports with their oratory and demands for "plain and speedy justice" without any regard whatever to the funda- mental principles. Indeed it is dif- ficult to find where they have ever specified one for which they show any respect. (See Story.) CHILDREN: Must be guarded. McDer- mott; Lynch; Turntable. See In- fants. CHITTY: The following article is one of three which appeared from the pen of Edward D'Arcy, in the Central Law Journal at pages 99, 415. After his re- view those who were older and who had owed a duty to the young Bar to speak before so much damage had been done to the profession, then ven- tured out to mention the shortcomings of Chitty, — of whom it was observed that learning the logic and philosophy of the law from his works is like learn- ing astronomy from an almanac. Whoever will read the article will get the clues that lead to the truth con- cerning the Feudal Lawyer and his fol- lowers. (See Literature.) Elsewhere we refer to the manifest high crimes against good government. ( See Codes. ) Why did not the Feudal authors cite and explain the maxims intro- duced in the Restatement? (See Pom- eroy.) Instead of those he relied on forms of actions, and forms of plead- ing. He did not drink at the foun- 66 THE LAW KESTATED Chitty.— tain, but instead he wandered down the rivulets. (See Meius est petere font- is. ) Chitty taught from forms — Forms of Actions and Forms of Plead- ing. He did not "drink at the foun- tains." "Limitations op Chitty : All must con- cede that a subject wMch lies at tUe base of the administration of justice must necessarily be founded on certain im- mutable principles which cannot be ignored or abolished. Now did Chitty express and impressively elucidate such great, high, true principles? In our first article on the high principles, there were enumerated : "1. De non apparentibus et non existentitus eadem est ratio: What is not juridically presented cannot be judicially decided, considered or determined. Proceedings must be coram judice; this is the first rule of res adjudicata. The state de- mands this as an implied third party to the record, and therefore its mandates cannot be waived by the parties named on the record, Kes inter alios acta. In effect the state says : 'Don't injure or deny my interests in your procedure.' Alterum iion Iwdere. These interests of the State are safeguarded \>y^ the general demurrer and its correlatives, as ex- plained in Hughes' Equity in Procedure, what will not pass the general demurrer cannot be waived, and therefore it re- sults that the general demurrer cannot be waived. 'It will keep.' "2. Frustra prohatur quod prohatum non relevat: This maxim is a logical deduc- tion from the first — De non. But did Mr. Gould understand these principles and this logic? A reference to his Preface and the matter of his work will show that he did not perceive the logic really involved. His Preface, 1832, also shows that he did not believe in Blackstone, Tidd, Chitty and Stephen. "3. Verba fori i us accipiunl ur contra pro- ferentem: The words of an instrument are construed most strongly against the composer or, in other words, every pre- sumption is against a pleader. "This maxim is also a logical deduction of De non, above stated. "Now, how stand Chitty and his followers on the above trio of principles? Whatever that standing may be, we find that Gonld, Tyler, Heard, Swan and Pomeroy wholly overlooked the above principles and failed to gather their true meaning from Chitty. Gould, in 1832, expressly says that the science of pleading cannot be learned from Chitty and Stephen ; that their books are for rd'erence rather than teaching the philosophy of law. The student who will read the matter referred to can see that discord and even aversion filled the minds of tbc great authors who have led the profession. Not an author fully compreheudod the nature and im- mutable character of the great principles above enumerated. The antiquity and simplicity of these principles is beyond their comprehension. They thought there could be different systems in a constitu- tional government ; they thought proce- dure was a local and fiat establishment. To illustrate this fact, wr quoto the pref- ace from Swan's Pleading and Practice. It is as follows : Introduction. '• 'The system of pleading in Ohio is con- tained in the seventh Title of the Code of Civil Procedure, and occupies five Chitty.— pages and a half of the published stat- utes of the state. " 'AU pleadings are to be tested by it. " 'Much of the Common Law System of Pleading consists of rules to determine the construction and legal effect of al- legations and the technical interpretation of language. " 'There is an omission of all such rules in the Code, and an express abrogation and exclusion of them. Language and al- legations, instead of being interpreted by the rules of Common Law Pleading, are restored to their ordinary meaning. " 'One of the objects of this work is to en- force and illustrate this difference be- tween the two systems — a difference radi- cal and irreconcilable, frequently over- looked — sometimes perversely disregard- ed. (See Pomeroy.) " 'The vindication of the Code from the ar- tificial and technical rules of common pleading must devolve upon the rising young men of the profession who have mastered both systems ; and, " 'To the Young Gentlemen of the Bar This W^ork " 'is respectfully dedicated. " 'September 1, I860.' "So we see how a prominent and widely re- spected author was writing in 1860. No doubt he had seen the first code cases, Biddle V. Boijce (Mo.) and Eno v. Word- ■ivorth (N. Y.) also McFaul v. Ramsey (U. S.), and Farni v. Tesson, 1 Black. 309. These cases and the above preface plainly show tbat the immutable ele- ments were not understood, for, had they been, such nonsense would not have been written. In Heard's preface to Stephen's Pleading (1867), the McFaul and Farni cases wore quoted with commendation. All the editors of Stephen's Pleadings have looked through tlie decisions but never once have they taken a squint from the trio of fundamental law above quoted. The latest editors of that work, and of Gould, are also so wedded 'to the cases' that they have no room to make promi- nent and vindicate the great principles that antiquity has given us. They all follow Tidd and Chitty who for texts gouged from cases and statutes. They did not quote and impress the trio of great principles above introduced which, if understood, is worth more than all the myriads of cases, and their unwieldy I>igests, Cycs, and annotated cases. "Next came Tyler's Preface. He was im- pressed with Chitty, Stephen and tbc above opinions of the Supreme Court of the United States. And Tyler got off what Charles O'Connor is said to have written to David Dudley Field, namely that practicing under his Code was like "An old woman telling her yarn." (Com- pare the May number of Case and Com- ment which has Field's picture and is eulogistic of the great jurist.) Now if O'Connor wrote that letter, then he should be consigned to the same class as the judges in the Biddle, Eno, Bamscu and Farni cases, and all those judges who do not know the elements of "due process of law.' Great courts that never quote and vindicate a great principle so that all can see and understand, cannot lead the bar to an appreciation of the principles needed for the establishment of mutual confidence among individuals, states and nations. Commerce, the greatest clvilizer, depends on the lawyer and his judiciary. Now what has been the lawyer's gift to the United States? TEXT-INDEX 67 Chitty.— What has happened to the American Tidd, Chitty, Stephen, Gould, Pomeroy, Heard, Tyler, Thompson and Perry pref- aces? See these prefaces and judge. Look at Par. 2, Preface 1876, I'omeroys Code Pleading ; also his sections 75, 509- 514, 533, 546, 596, et seq. ; 2 Thomp- son's Trials, Sections 2310, 2311, quoted in 4 Grounds and Rudiments, under Title Variance. Head all the Prefaces under the light of the above trio of principles, from of old, and then judge. Is not Section 10, Story's Equity Pleadings, worth more than all these local, fiat, provincial, 'late case' and statutory systems^ as countenanced in all the above Prefaces? We also quote from one of the latest works. In 190S, Gould reappeared as Will's, Gould, and from its preface we quote : " 'The aim of this edition is to exhibit plead- ing as both a science and an art. Dur- ing the development of the art there have been, in the regulations that govern its practice, alterations, elisions, addi- tions and substitutions. But the old rules and the modern rules of pleading, taken together, form but one entire sys- tem.' "Now, what are the old rules, except the maxims quoted ; and are not they the everlasting rules, and always the same? And are they not of all systems? Does changing the verbiage change the rules? "In the first letter of this series (74 Cent. L. J., 99-101) we attempted to show that it is as easy to learn astronomy in an almanac, as to learn the philosophy of pleading in Tidd, Chitty, Stephen and their followers. The study of the above masters and our modern book factory output has taught procedure so that the 'ignorance of the lawyer is appalling ;' and the Dean of Harvard Law School is all at sea, as appears from a truly as- tonishing speech of his on page 836, 34 Am. Bar Ass'n Report (1909). He won- ders why the English 'bench, bar and law books are the best.' He had only to look and see why the English student is ahead of the American. To get abreast, the latter must drop his 'late case' hunt and pause to learn a half dozen principles and perceive their logic and philosophy. To illustrate the condi- tion, let us ask a student the reason for the old rule that the general demurrer cannot be waived ? "Ask twenty lawyers this question and see if any two will give the same answer. Their answers will show why it is that 'the ignorance of the lawyer Is appalling.' 34 Am. Bar Ass'rt Rep. 787. "If Chitty and his followers do not explain the rule, and the principles on which it is based, is it reasonable to expect the bar to be able to do so? "If there are such principles, is It not time to abandon text-books which do not teach them, and turn to books that do? "Is not that the true way out of our 'ap- palling' condition? Edward D'Arcy." CHURfJH OF THE HOI.Y TRINITY v. V. S. 143 U. S. 457 ; Cited § 14 Restatement. A statute will be construed against the letter in order to make it accord with reason and the intent. Lex non exacte definit; Bumma ratio pro religione facit. Washington Terminal, 36 App. Cas. D. C. 186, 190. This case can be cited to sup- port the Prescriptive Constitution. Biggs V Palmer ; Oakley v. Aspinwall, L. C. 222, 3'Gr & Rud. V. 8. v. Kirby. There is a higher law than statutes. In prwsentia majoris: Clark v. Dillon. CLARK v. DIDtON, 97 N. T. 370, Brad- bury's Rules of Pleading 9-16. Cited : §§ 7, 8, 10, 12, 21, 22, 24, 25, Restate- ment. The burden of this case is the maxim Verba fortius; it is the same as Bovaston v. Fayne, C. & A. R. R. v. Clausen, Rose v. Milne; Kewaune County V. Decker, L. C. 30 Gr. & Rud. ; 50 L.R.A. (N.S.) 1-32. It is a cognate of Camp- hell V. Consalus; and Tooker v, Arnoux. These cases are the basis of our pages on the Code. They involve the leading questions of Code discussions. They ought to be mastered. They can be cited to sustain the Prescriptive Constitution. Indianapolis v. Horst. L. C. 223, 3 Gr. & Rud.; Dunnivant ; Taylor v. Sprinkle; Thomas v. R. R. Mallinckrodt, I. C. 12a, 3 Gr. & Rud. CLARK V. WEST, 193 N. Y. 349. Cited : S 17, Restatement. Denies Clark v. Dil- lon. In relation to Codes we refer to the unsettled views prevailing in New York. The origin of the trouble is indicated in Clark V. West; we make further refer- ence to this case under the title Codes. It is an interesting case on both the Code and Contract. See Story. CODES: § 1. The titles Cliitty, and fol- lowing titles last above set out will lead to discussions that illustrate why the Code has failed. The two original Code states, New York and Missouri, are at this time asking commissions to try and formulate something to res- cue the land from manifest bewilder- ment in these states. In each it is rec- ognized that there is something funda- mentally wrong in the operations of its Code. Each is attempting to solve the trouble by more legislation and more decisions but under the guidance of the Feudal motto, "Parliament is omnipotent." Neither appears to be seeking light and guidance from the few fundamental canons of all ages, and from the truth that all Codes and Practice Acts must be construed by these. (See Literature.) Neither ap- pears to recognize that it is these great stars of all ages and climes that control, and not local capitals, legis- latures and courts. Neither appears to perceive that the Municipal CJourt Act of Chicago and the Code of New York have been construed to mean the same thing. {Campbell v. Consalus.) The idea of something "new" is most pronounced and leads the way. (See Literature.) It is not apparent that the new system or proposed amend- ments will better serve the necessities of Res Adjudicato and of "Due Process of Law;" nor that these conserving principles of Proceduro* will dictate the meaning of the legislation now sought to be brought forth. We know of no Code that has been brought forth and construed to serve those ends except in a hazy, indirect and haphazard way. Starting from those high principles 68 THE LAW RESTATED Codes. — ■we can see that there is a unity, a logic and a philosophy of Procedure that has not been clearly pronounced and defended by any court or author, certainly not by any Feudal author. Local and tribal laws are threaten- ing the dismemberment of the "due administration of justice;" and courts, authors and schools do not seem to grasp the fact. (See Feudal Lawyer, also Literature.) The lawyer and his establishments have not comprehended the Code. How fallacious is the the- ory, that Procedure is of local and fiat origin, and that it may be partitioned off and taught without reference to the leading subjects of the law, we have tried to show in the Restatement. We have sought to show that Procedure must be broadly taught; that its ma- jor-organic maxims are canons of Evi- dence, Pleading and Practice alike; that these are Constitutional, Uni- versal Principles, applicable alike to all systems and, of course, to the Codes and Practice Acts. The maxims re- ferred to, we for brevity, call the Trilogy of Procedure (Sec. 1 et seq.. Restatement). Further we have sought to demonstrate that these max- ims are also rules of the general de- murrer, of the motion in Arrest, of Appellate Procedure, of Collateral At- tack, Res Adjudicata and of "Due Process Of Law." In the argument of these matters we have defined our posi- tion so as not to be mistaken, well knowing that our propositions are op- posed to prevailing doctrines. We con- fess that we are unable to cite a single authority fully to support our views, except the maxims, the cases of Mansfield, Story and others referred to under the title. Literature. Every "theory-of-the-case" advocate denies the above propositions. Elsewhere we contend that it is this "Theory of the Case" that has shattered and distorted the logic and the philosophy of the law. (See Story; Rushton; Logic; Literature.) We have sought to give full credit to Story and Greenleaf, al- though it must be conceded that neith- er of these authors so clearly and pre- cisely stated the heart and vitals of Procedure as to impress their own gen- eration, much less the succeeding (see Literature). The Code was enacted in 1848, and its expositors at once as- sumed that a "new dispensation" had come (see Pomeroy; Chitty) and that they were the appointed ones to pre- Codes. — sent its logic and philosophy. Not one of them picked the underlying maxims that were reaffirmed, nor the leading ' sections of Story and of Greenleaf, or pointed out that it was these sections that had been paraphrased by the legislatures. Not one plainly stated that the fundamental maxims per- ceived in sections 10, 25-28, Story's Equity Pleading, and 63-65, 522-540, ] Gr. Ev.; also 7, 2 Id. also 10, 3 Id., also 35-37, Id., had been merely paraphrased and reaffirmed. Had they done this there would have been no "theory-of-the-case" sect. ( See Litera- ture. ) Such teaching would have ex- cluded the notion that the law can be learned in a partitioned way (see Bish. New Crim. Law pp. vi, vii. Pref- ace). From little and narrow teach- ing the Code failed; and finally it has given us cases like Gulling and its cluster; also the idea that lawyers can be made by statutes; and it has ended in a jargon of judicial anarchy as to what these cases mean. (See "Theory of the Case;" Story; Rushton and the situation described under these titles.) At the beginning, the old law, the Trilogy of Procedure and the sections above referred to should have been gathered and impressed and the fact pointed out that Codes must be con- strued by these and not by the letter of the acts. (7 to lex.) (Bliss did hint this, see Codes, 2 Gr. & Rud. ) It should have been made clear that Greenleaf discussed Frustra probatur quod probatum non relevat in his sec- tions 49-74, Vol. 1, also that this was a maxim both of Evidence and of Pleading. Had the Federal supreme court in some of its excellent cases like Slacum, and Nalle v. Oyster and Vicksburg v. Benson only clearly stated and ex- pressed the Trilogy of Procedure and declared that all systems of Procedure are bottomed thereon and that all stat- utes must be construed accordingly, such a decision would have been an- other Magna Charta. It is long overdue from some court to state and defend fundamental law away from local and tribal attacks (see Prescriptive Constitution, Equi- ty), and to announce that these prin- ciples will govern construction, and that the letter of Codes and Practice Acts must be made to harmonize with TEXT-INDEX 69 Codes. — organic law, whose principles are su- preme. In prcesentia majoris cessat potentia minoris. § 2. No Code author has done more for the Code than Story and Green- leaf. As to Judges, Stephen J. Field, in California did much; not enough, however, to enlighten the adjacent states which have sought needed light from California. This will appear from Gulling and its cluster. Later decisions in California have a marked "theory-of-the-case" tendency. Wis- consin must be viewed as altogether the best Code state. There able judges have spoken in Kewaune County v. Decker, L. C. 30, 3 Gr. & Rud.; and Judge Marshall of that state has done much in cases like Emerson v. Nash to withstand the commands of "theory- of-the-case" legislation and tendencies. Several of the late cases show a strong disposition to renounce Kew- aune County. But after all it must be admitted that these very able de- cisions, like Story and Greenleaf, have failed to open and clear the way as it should be. The Gulling case and its cluster show that we should not look to legis- lation and wrangling courts to settle the fundamental principles of the Code. (See title Codes, 2 Gr. & Rud.; also Story and Kushton; also 44 Chicago Leg. News, 125-166. Under the Title Variance [4 Gr. & Rud.] several promi- nent authors are quoted; these should be well introduced to the student, that he may see and judge for himself.) Codes merely reaffirmed Roman roots; they brought nothing new of substance. Feudal Lawyers, given this Code to construe and apply, have ut- terly failed. They have even con- strued away the provision that a "cause of action" be stated, (Quis, quid: See "Theory of the Case") and that the general demurrer cannot be waived. They have decided that ir- relevant evidence may be admitted, and, if admitted without objection, that this will take the place of Plead- ings. (See Literature.) And wheth- er Verba fortius is a canon to be re- spected must be picked out here and there from wabbling authors and theorists and conflicting cases. (See Sees. 533, and 546 Pomeroy's Code; Antisdel v. B. R. [Wis.], is a cognate of Dovaston v, Payne, L. C. 217, 3 Gr. & Rud.; then why did not authors plainly state this fact?) What has Codes. — happened to the Code should be plain- ly stated and defined; therefore we often cite Campbell v. Consalu^, Clark V. Dillon, and Toolcer v. Arnoux. They are cases from New York, and most excellent. These and the cognates we cite with them should be well under- stood by the student. Clark is like C. & A. R. B. V. Clausen (111.), also Rose V. Milne (Va. ) Compare these cases with Clark v. West and Baily v. Hornthal. Antisdel, Dovaston, C. & A. B. B. V. Clausen, Campbell and its cog- nates and Walter, 250 111. 420 (Mu- nicipal Court Act for Chicago), may all be cited to support the higher law — the Prescriptive Constitution. Code authors have not set out and cleared fundamental principles and then in the light of these opened the way and construed the letter of the Acts. (See Chitty; Pomeroy; also Common Counts.) Instead, they never get away from the letter of the statute and cases, handicapped with the dogma, "Parliament is omnipotent." Contrary to the fact they assume that something "new" has come. Their Pref- aces will show. (See also Pomeroy's Code sees. 508-608.) They call for more statutes and cases until the en- tire establishment is flooded and brok- en down with cases. (See Literature; Pomeroy.) Each state assumes that it has a sui generis Code. This as- sumption is very pronounced in Ohio as the Prefaces of Swan and Judge Nash will show. And so it is in Mis- souri and California. How it is in New York will appear by discussions of Clark v. Dillon in that state. (See Bradbury's Rules of Pleading pp. 9- 16; 1564-1570.) But a Mansfield, a, Kent, a Story, a Bishop or a Carter would see no difference whatever, at least as to substance. They would construe all Codes and Practice Acts by the Trilogy of Procedure. And so the Federal Supreme Court might have done long ago. (See §§ 1-26, Restatement.) The greatest asset of government, the due administration of justice, ought to be defined and settled by the Nation's highest tribunal. The failure to do this has invited judicial anarchy, as will appear from the con- dition in New York and its adjacent states, and likewise in Illinois and its adjacent states. Start with Gulling and its cluster of cases, and see what these will lead to. And do we point to any thing less than judicial an- archy? 70 THE LAW EESTATED Codes. — Judge Bliss was right in stating that the best Code would be the re- affirmation of a few fundamental prin- ciples, leaving regulation and details to rules of court, or, so to speak, Prsetorian Edicts. A supreme court can make the best Code. From the fundamental principles, the minor rules can be deduced and comprehended. The Restatement can be worked from and spread out through the Text-Index. Codes should be dictated and dra-ivn from the great stars of the juridical Heavens, such as Alterum non Icedere. These should be recognized and fixed; from the fountains the rivulets can be traced. Melius est petere forties quam sec- tari rivulos. (4 Gr. & Eud. ) § 3. Campbell; Clark; looker. In- troductory to a Code see sections 1-26, Restatement; also the cases of Camp- hell V. Gonsalus, Clark v. Villon, and Toolcer v. Arnoux, the citations to and the cognates of these cases. In several relations the importance of these cases is indicated. See Preface to Restate- ment; Story; Rushton; Pomeroy; Chitty and Literature. Codes reaffirm the old law, §§ 1, 5, 6, 7, ]2, 21, Restatement. Construction of Codes; Leading principles. See sections above referred to; Lex non exacte. Equity In Pro- cedure; title Codes, in Equity; also 2 Gr. & Rud. "Parliament is not omnipotent;" Codes cannot be construed by the max- im Ita lex scripta est. See Parlia- ment. The great principles of, stated. §§ 6, 7, 8. Restatement. Quis, quid: reaffirmed, §§ 6, 7, Re- statement; See this maxim. Construction must harmonize with first principles, § 10, Restatement; See Theory of the Case. "Theory-of-the-case" advocates as- sail Verba fortius, Pomeroy upholds it here, and denounces it there. An- tisdel V. R. B. (Wis.) is a cognate of Dovaston v. Payne, L. C. 217, 3 Gr. & Rud. But Code authors do not inform us of the origin of Code cases. An- tisdel is quoted and approved by Pom- eroy, § 533, and next in § 546 he denounces Verba fortius. He never cites the great decisions gathered in Smith's Leading Cases. See the excel- lent Code cases, Rushton, Bristow, Dovaston and J' Anson v. Stuart; also § 21 Restatement. Codes. — Also Palmer v. Eumiston; 'Nolle v. Oyster; Vicksburg v. Benson; Milbra V. Steel Co.; Sache v. Wallace; 8. v. Mu&nch (very instructive case); Munday v. Vail, L. C. 79, 3 Gr. & Rud. et seq. Campbell v. Consalus; Clark v. Dil- lon and TOOKEE v. Aknoux combined and annotated. The fundamental prin- ciples in these cases deduced and stated and impressed as guiding stars. From Alterum non Icedere deductions are drawn which are the rivulets on down. Melius est petere fontes quam sectari rivulos (4 Gr. & Rud.). A grasp of the fundanjentals of the Code and of Practice Acts will show that these principles are the same as the maxims of the Trilogy of Pro- cedure (§§ 1-14, Restatement). To perceive this fact, follow the citations to the above cases through the Restate- ment. To bring out this fact from the "legal jungle" and away from Feudal theories is a leading purpose of the Restatement. The principles are few and are from of old but the cases il- lustrating their application are simply illimitable. To read cases without a clear perception of the principles is to grope in the dark forever. And for two generations the legal profession has so groped. (See Feudal Lawyer.) In other relations we refer to the un- ending call for more legislation and more cases. (See Pomeroy.) With plenty of eases, authors and courts have looked away from them and con- tributed a greater babel and menace to enlightened government. Any — ^the least change in the terminology of a statute although it did nothing more than reaffirm the old principles and authors assumed that something "new" and "modern" was brought forth and that this newcomer called for entirely new cases and principles. The Pref- aces of Judge Nash and of Swan (Ohio), will show. And the Preface to Tyler's Stephen's Pleading wherein Charles O'Conor's screed is held up as respectable and fit for the considera- tion of students will indicate the pre- vailing views of the American profes- sion. And cases like Culling have come and still they heed not but con- tinue to show their reverence for Coke, Blackstone, Tidd, Chitty, Stephen, Thompson and the "theory-of-the-case" errorists of two generations. (See Story; Literature.) 33 Am. Law School Revised 602-617. Not a single Code author has shown TEXT-IISTDEX 11 Codes. — that he read the Code in the light of the necessities of Appellate Procedure, Collateral Attack, Res Adjudicata, and Due Process Of Law. To have done so would have been a recognition of the Prescriptive Constitution and this could not be done without an assault on the motto of Feudalism that "Par- liament is omnipotent" (§ 21 Restate- ment). The fact is that Courts and authors have discussed the Code from the viewpoint that the statute is local and fiat even as to the reaffirmation of the Trilogy of Procedure. (§§ 1-14, Restatement.) And to end the An- tinomian wrangle cases and statutes have been sought and looked to while all the time these simply more em- broiled the fray. And so they will until the fundamental law is compre- hended and respected. (See §§ 1-26, Restatement.) The logic and the phil- osophy of the law are not the gifts of statutes and of courts. In proEsentia majoris cessat potentia minoris. § 4. Campbell v. Consalus, 25 N. Y. This case quotes and follows Guest v. Warren ( Eng. ) . These cases stand to limit the power of the parties to dis- pense with the pleadings even by ex- press stipulation in writing filed. They set a limit to waiver. (See Story.) And we think that this limi- tation to contract is also the limit of legislative power; that legislative pow- er is defined, as is the power to con- tract and to waive. There are limi- tations of the power of legislatures, and of the parties, to contract a pro- cedure unto themselves. What these limitations are is of much consequence to all students (see Consensus tollit errorem; Modus et conventio vincwnt legem ) . That there are limitations of waiv- ing Pleadings, see §§ 83-123, 1 Gr. & Rud. ; Consensus: Introductory Chap- ter, Restatement. Campbell is cited in the Preface, also in Restatement §§ 4, 7, 8, 10, 12, 17, 20, 22, 23, 24, 25. Here we have sought to show the Code and Practice Acts in connection with fundamental law. By tracing the discussion from these citations the unity, logic and philosophy of all procedure will ap- pear, — at least all that can serve a Constitutionalism. All systems that require pleadings that will pass the general demurrer and its Correlatives must and do respect the Trilogy of Procedure. § 7, Restatement. Camp- hell and its cognates, Clurk and TooA:- Codes. — er, should be read in the light of this Trilogy. From these three cases, all Code cases, it will be seen that the "Theory- of-the-case" sect are opposed to the principles there enunciated, and that they take their stand with cases like Gulling and its cluster. Parties can neither directly nor in- directly waive nor dispense with the pleadings nor the mandatory rec- ord. The general demurrer cannot be waived (see Story). Mondel v. Steel, L. C. 77, 3 Gr. & End.; Nalle v. Oyster. Pleadings limit the court's author- ity, and all its judgments and recitals are limited by the Pleadings. Mondel; Palmer v. Humiston; Milbra v. Steel Co.; Knickerbocker v. R. R. (N. Y. ) ; Vicksburg v. Eenson. Oral statements and affidavits will not enlarge the Pleadings, or the issues. Walter, 250 111. 420 (Municipal Court Act for Chi- cago) "What ought to be of record must be proved by record and by the right record." Fiunt enim de his contractibus. The state requires pleadings, and sufficient pleadings. Interest reipub- licw; Quis, quid, coram quo. The state's interest cannot be contracted nor consented away. Alterum non Iccdere; Res inter alios; Consensus ; Modus et conventio; § 17, Restate- ment. § 5. Clark v. Dillon, this notable N. Y. case is a cognate of Campbell, also of Tooker. These three cases present phases of the Trilogy of Procedure. §§ 1-7, Restatement. It is cited in Preface, also in §§ 7, 8, 10, 12, 21, 22, 24, 25, Restatement. By following these citations the reader can trace its logic and philosophy, as well as its repulses, of which latter there ar§ many. See Bradbury's Rules of Pleading, 9-16, 1564-1570; 50 L.R.A.(N.S.) 1-32. Its notable cog- nate cases will be found along with Dovaston v. Payne, L. C. 217, 3 Gr. & Rud. Among these are C. & A. R. R. V. Clausen, and Rose v. Milne: In- dianapolis R. R. V. Horst, L. C. 223, 3 Gr. & Rud.; Dumnivant ; Taylor v. Sprinkle; Thomas v. R. R. Tlie burden of Clark is Verba fort- ius; it also shows that Parliament is not omnipotent, — that legislation can- not change the substance of Procedure. C. d A. R. R. V. Clausen; Rose v. Milne. Lex non escacte definit. A Pleading is construed against a pleader. Verba foi-tlus; Collateral 72 THE LAW KESTATED Codes. — Attack; Res Adjudicata. See Clark v. West; Baker v. Warner. Parties cannot stipulate to dispense with Pleadings; nor can legislatures so impair them that they will not serve their functions on Collateral Attack, Bes Adjudicata and Due Process Of Law. These points can be picked out of Campbell, Clark and Tooker. Fol- low their citations in the Restatement. In prcBsentia majoris oessat potentia minoris. A pleading cannot be "fish, fiesh or fowl" as the pleader may choose to present it in changing attitudes. Kew- aune County v. Decker, L. C. 30, 3 Gr. & Rud. § 6. looker v. Arnonx, 76 N. Y. 397, presents a question of Aider by Plead- ing Over. Cited, in the Preface, also in §§ 4-12, 17, 20, 22, 24, Restatement. It was contended that the omission of a material allegation omitted from the statement could be found in the answer and transferred into the statement, and thus show a "cause of action." But this view was rejected in a deci- sion that supports the rule, "What ought to be of record must be proved by record and by the right record." (Mondel v. Steel, L. C. 77, 3 Gr. & Rud. § 10, Story Eq. PI. 47, Equity In Procedure.) This decision accords with the requirements in the Removal of Causes also in Constructive Notice, inter alia, §§ 83-123, 1 Gr. & Rud. It also accords with the very Code which requires that a "cause of action" be stated in the Complaint or Petition. And wherever Pleadings are Jurisdic- tional this must be so. Jurisdiction cannot be picked up in a haphazard way. Quis, quid, coram quo. It can- not be gained from any and every Pleading, — the Complaint, the answer or the reply, — or from the evidence (see "Theory of the Case;" Story), or oralities or affidavits (Walter, 250 111. 420 ) , or agreed statement of facts, or arguments, or instructions, or ir- relevant evidence. (See Story; Rush- ton; Gulling; 1 C. J. Cyc. 45, 66, 100.) Quod ai initio non valet, tem,- poris non convalescit. See this maxim and trace it from its citations through the Restatement. The statement of a "cause of action" cannot be supplied by stipulations {Campiell), nor by any construction that offends Verba fortius; (Clark) nor be imported from the answer (Tooker) . Here let ua ask the student to turn and read the Trilogy of Pro- Codes. — cedure and its cognate maxims §§ 1-7, Restatement, and then contemplate what it would have been worth to the cause of the Code if these maxims had been distinctly named and discussed in this Trilogy of cases. Note the difficul- ty of developing the exact idea from cas- es. Note also that the "case system" (2 Gr. & Rud.), has not abated the disorders of the "Theory of the Case." TooKEB V. Aenous quoted: 1. A "cause of action" miist be stated as the Code commands, and this is a Quod a1) initio proposition ; "When the com- plaint in an action does not state facts sufficient to constitute a cause of ac- tion," the objection is available on trial upon motion to dismiss the complaint." 2. "Where a motion is made upon that ground, the granting it is not a matter of discretion, but ol legal right." 3. "Where the objection was raised and was not waived, and no amendment of the complaint was made or asked for on the trial, the correctness of the ruling deny- ing the motion to dismiss must be tested on appeal on the complaint as it stood, not as it might have been changed by amendment ; and if the ruling was er- roneous, it is fatal to a recovery." 4. "The provision of the Code of Procedure (Old Codes 162) which provided, that in an action upon an instrument for the payment of money only it should be suf- ficient to set forth a copy of the instru- ment, and allege the amount due there- on, was not applicable where the lia- bility of the party, by the terms of the instrument, was conditional, t and de- pended upon outside facts ; in such case those facts must be averred." 5. "Plaintiff's complaint set forth a copy of an order upon defendant, requesting him to pay the plaintiff a sum specified, 'out of moneys to be realized from the sale' of certain houses described ; it al- leged an acceptance of (p. 398) the or- der by defendant, a payment of a portion of the sum, and that the balance was due. Held, that the complaint did not state a cause of action ; that a sale of the houses and the receipt of money from such sale were conditions precedent to defendant's liability, and should have been averred ; that a denial of a motion to dismiss the complaint on trial was error." 6. "Also, held, that a denial in the answer of the receipt of any such moneys did not supplement the complaint in this re- spect." S. P. Florida Co., 17G U. S. 328, 329. De non. See Aider. "Eapallo, .1. At the opening of the trial the defendant moved to dismiss the com- plaint on the ground that it did not state facts sufEcient to constitute a cause of action. The motion was denied and ex- coption taken. The reason assigned was that the defendant should have demurred. "This position is in conflict with section 148 of the Code and with many decisions of this court. If the complaint was bad in substance the objection was available on the trial and the motion to dismiss should have been granted (Schofield v. Whitelegge, 49 N. Y. 259 ; Coffin v. Rey- nolds, 37 id. 640 ; Emery v. Pease, 20 Id. 62 ; Boyordus, 101 N. Y. 328 ; Van Leuv- cn V. Luke, 1 N. Y. 515, Leading Case 14, 3 Gr. & Rud. Omission of fact of TEXT-INDEX 73 Codes. — scienter for injury by a domestic animal ; Bushton V. Aspinall, L. C. 5, 3 Gr. & Rud.). "We think the complaint was clearly bad. The sale of the houses mentioned In the order and the receipt of money from such sale were conditions precedent to the defendant'E liability on his acceptance, and those facts should have been averred. In the absence of such averments no indebtedness on his part to the plaintiff appeared (Munger v. Shannon, 61 N. Y. 251, 260). "The denial in the answer of the receipt of any such moneys did not supplement the complaint in this respect. In Bate V. Oraham (11 N. Y. 237), the answer contained an affirmative allegation of the fact which the complaint should have averred, but in Schofield v. Whitelegge, as in the present case, the answer con- tained a denial of the essential fact, and it was held that such denial did not cure the defect in the complaint. Van Leuven V. Lyke. "The complaint in the present case cannot be sustained by virtue of section 162 of the Code, which provided that in an ac- tion upon an instrument for the payment of money only, it should be sufficient to set forth a copy .of the instrument and allege the amount due thereon. It was decided by this court in Conkling v. Ganila (1 Keyes, 231), that section 162 was not applicable where the liability of the defendant was conditional, and de- pended upon facts outside of the instru- ment ; that in such a case the facts must he averred." {hex non exacte definit.) "The objection to the complaint was not waived upon the trial. The defendant not oply took the objection of the insuf- ficiency of the complaint before any evi- dence was taken, but when the plaintiff offered evidence of the fact that the houses had been sold, he objected to such evidence on the ground that the fact had not been alleged in pleading. "We see no ground upon which this case can be distinguished from the numerous cases in which it has been decided that a party may upon the trial lawfully de- mand a dismissal of the complaint on the ground that it does not state facts suf- ficient to constitute a cause of action. "The court below at General Term conceded that if the trial judge had granted the motion to dismiss it would have been bound to sustain this action. The neces- sary consequence of this concession Is, that in denying the motion the trial jTidge erred. It was not a question of discretion, but of legal right, whether the complaint should be dismissed, and if it would not have been error to grant the motion, it was error to deny it. It is true that an amendment of the complaint might have been allowed in the court below, but no amendment was made or asked for, and the objection to the com- plaint having been taken in due season and overruled, the correctness of the rul- ing must be tested by the complaint as it stood, and not as it might have been changed by amendment. "The judgment must be reversed and a new trial ordered, costs to abide the event. "All concur. "Judgment reversed." This otherwise excellent case is mis- leading in one respect: The language of the court implies that the defect. Codes.— although of substance, might have heen waived. If the defect is a formal one, then such defect is passed, and gone forever unless objection is promptly and spe- cifically made. Let the student learn this and learn it well. (See L. C. 290a -299, 3 Gr. & Rud. and cases cited; also § 53, 1 Gr. & Rud. It is a juris- dictional question that is involved. Consensus tollit errorem.) But when the defect is one of substance it cannot be waived. Then it is a question of the general demurrer, first, last, and for- ever. It is never more nor less, for the general demurrer is never waived. Altprum non Icedere. Toolcer was cor- rectly decided but the ex gratia re- marks of the court about objections and exceptions lessen its usefulness. (See Rushton; Bartlett v. Crazier, L. C. 5, 6, 3 Gr. & Rud.) To repeat, even the express stipula- tions of parties to add to, or to de- tract from, or to vary the Pleadings, • are of no effect. Campiell v. Gonsalus. Is it not absurd, then, to say that a waiver of Pleadings which cannot be worked directly and formally, in writ- ing, may nevertheless be worked in- directly. The extension of Consensus, and the minimizing of Quod ab initio touching the last proposition is quite common, but this notion that the sub- stantial part of Pleadings can be waived in any way is offensive to or- ganic law. De non; Quando aliqmd prohibetur. If the parties cannot by express con- tract vary the Pleadings (Mondel, L. C. 77, 3 Gr. & Rud.) then it is certain- ly illogical and absurd to contend that the admission of irrelevant evi- dence even without objection will sup- ply the Pleadings, for what concerns the State cannot be waived. Modus et conventio vincunt legem; Alterum. looker v. Arnoux is a cognate of Gamp- bell, Clark. These cases illustrate the Trilogy of Procedure — De non, Frus- tra and Verba fortius: These maxims are the north star and its "pointers" the "Datum Posts," and always were and ever must be, in a government of protection. They have not been changed for they cannot be changed. It is these maxims and their cognates that the Code codified. These cases have many cognates and of these are: Scofleld v. Whitelegge, 49 N. Y. 259 (the facts must be pleaded — conclusions of law will not do — a denial will not 74 THE LAW EESTATED Codes. — aid the latter. C cC- A. B. v. Glaiisen, 111.). ■CofflB V. Reynolds, 37 N. Y. 640 ( a gen- eral demurrer cannot be waived — a statement is not aided by going to trial — this waives nothing of sub- stance; Alstyne v. Freday, 41 N. Y. 174). Emery v. Pease, 20 N. Y. 62 (limits of liberal construction — if enough is stat- ed a remedy will be afforded in equi- ty though the ease fail at law. Doh- son u. Campbell; Vt res: WriglU v. Dodge, 111.). JIunger v. Shannon, 61 N. Y. 251 (an answer need not have greater respect- ability than the statement that called it forth; an answer will not aid a complaint; Florida Co. v. Bell; Bo- gardus v. Life Ins. Co. 101 N. Y. 328 — De non) . Vicksburgr v. Henson (a judgment is lim- ited by its Pleadings; where these end so the judgment ends — Knickerbocker Trust Co. (N. Y. ) ; Verba generalia restringuntur) . § 7. — Campbell, Clark and Tooker, also Oakley v. Aspinwall, L. C. 222, 3 Gr. & Rud. are worthy of study in all jurisdictions, under all systems. A great Code case is a worthy case under all skies although it may not have arisen under a Code nor may it have the word "Code" in it. And on the other hand a good case at law or in Equity or in Crime or in Federal Pro- cedure is good anywhere and every- where. Study the New York cases above cited, and therewith Rushton v. Aspinall and Bartlett v. Crozier (Kent), quoting and reaffirming Rush- ton, L. C. 5, 6, 3 Gr. & Rud. also Mondel v. Steel and Mundaij v. Vail, L. C. 77, 79, 3 Gr. & Rud., and the mystery of the Code will be revealed. Add to this revelation Xalle v. Oyster, Milbra v. Steel Co., Palmer v. Humis- ton, Slacum v. Pomery and .Tackson v. Pesked. Consider with these cases the maxim, Quis, quid, coram quo; and follow it through the Law Restated and in comparison therewith note what Serjeant Williams said (see Wil- liams). This will illustrate the fact that the legal profession sometimes be- comes obsessed with tlie notion that some supposed great one has spoken; and it will catch up the supposed holy words and parrot them on down the line through generations, as it has done in the case of such nonsense as 'Aider by Verdict." See Rushton; also Codes. — Story. Here let us ask the student if Quis, quid is not worth more than what Serjeant Williams said? Now why will the legal profession worship Williams, Blackstone, Tidd, Chitty, Stephen Gould and Thompson and re- nounce the beacon lights of antiquity? "Remove not the ancient landmarks which thy fathers have set." Why will the legal profession set up and follow for generations an author who assumes that substance can be waived? Well, it has. ( See the Preface to Tyler's Stephen's Pleading; also Chit- ty-) Story §§ 10, 25, 28, which we so often cite, are worth more than whole volumes which concede that the gen- eral demurrer can be waived. See the struggles over this question in New York, in Missouri. (Davis o. Jackson- ville, Lilly V. Menke) ; also in Illinois (Walter, 250 111. 420.) (See citations to Walter in The Law Restated.) We tabulate, for easy reference, a few important results. Clark and its cognate cases, lilie Campiell V. Cnnsalus plainly recognize tile basis of fundamental law — the Prescriptive Constitution — which governs statutes and the compacts that parties attempt to make affecting Procedure. Mallinckrodt, L. C. 12a, 3 Gr. & Rud., citing Clark; C. rf A. R. R. V. Clausen; Gramp v. Dunnivant; Hannibal R. R. v. Mahoney : Huntsman r. 8., L. C. 231, 3 Gr. & Rud. "Parliament is not omnipotent." Clark; C. & A. E. R. V. Clausen (111.) ; Rose v. Milne (Va.) ; Austin R. R. v. Cluck (Tex.) ; Indianapolis R. R. v. Horst. L. C. 223, 3 Gr. & Rud. ; End. Stat. 161, 182. Trilogij of Procedure sustained by Clark and Campbell v. Cnnsalus. These cases should bo connectedly considered. Verba fortius is ably sustained by Clark. This is a universal and constitutional principle. Hughes' Equity In Proc. 163- ISa ; Dovttston V. Payne, L. C. 217, 3 Gr. & Rud. ; Stephen v. Beall, 22 Wall. 239 ; V. S. V. Linn. Statute of Amendments and of Jeofails is limited by finidumental law. "Parlia- ment is not omnipotent." Clark and its cognate cases, supra ; 1 Gr. Ev. 73 ; End. Stat. 161, 182; Huntsman v. S. (Tex.), L. C. 231, et seg., 3 Gr. & Rud. In pra'sentia m^ajoris. Tbere are ultimate elements of Procedure indicated in Clark, Campbell, Oaklev, .\ustin R. R., C. & A. R. R. v. Clausen, Davis p. Jacksonville Line, Collier (1 Mo.), Taylor v. Sprinkle (1 111.), S. i'. Mucnrh; Huntsman r. 8.; R. ci rel. Jlrnson v. Sheppard (Mo.). Rii.ihton and Bristow V. Wright. L. C. 1 :!."., <■/ seq., S Gr. & Rud., are always the law. A cause of action must be stated: Florida Co., 176 U. S. 329. Answers will not aid. Id., 328, Tooker. There are limitations of Aider. Ctarrett. Allegata et probata must correspond; al- legations are jurisdictional: Southern Ry. V. King, 217 U. S. 524, 53G. The distich (Quis, quid:) we nc.rt cite is ahrays the law: Quis, quid, coram quo: TEXT-IiNDEX 75 Codes. — story's Equitij Pleading 10, 25-2S ; Bow- en V. Emerson; S. v. Muench; Sache v. Wallaee; Antisdel v. R. R. (Wis. Code). Pleadings are jurisdictional and they must 6e certain: Miinday v. Vail ; Crockett V. Lee; Dickenslieets v. Kaufman (Ind.) ; Antisdel; Nalle v. Oyster; S. v. Muench and cases cited; OuUincj v. Bank (Nev.) C. B. & Q. E. R. V. Willaid. Quis, quid, coram quo. An order of court must be suppoi'ted by its record. Eighmy v. P., 79 N. Y. 546. 'New York courts and authors have not had uniform and consistent views of Clark. Bradbury's Rules, supra; Clark v. West; Baylie's Code Pleading and Practice 1-4. :. EdR-ards. See Collateral Attack. Filing an answer to the merits does not waive a pleading that has no merits or in other words that a pleading that is subject to the general demurrer has no merits and therefore does not come with- in the rule. For the general demurrer cannot be waived. Tookcr v. Arnoux. In legislative language this rule is reaf- firmed in Codes. But late cases deny these views. Oullinf) v. Sank; State Bank v. West. U. Tel. Co. — N. M. — , 53 L.R.A. (N.S.) 1915A, 120. This case also holds that at the stage of Appellate Procedure a more liberal rule will be applied to uphold a pleading than at the stage of general demurrer. Ut res magis. See Goldham v. Edwards, re- stated under title Literature ; also Jack- son V. Pesked. The State Bank case cites and follows 6 Encyc. PI. & Pr. 384 ; also Hosier v. Elia- son, 14 Ind. 525 ; 2 Tidd's Practice 919, inter alia. See Collateral Attack, 6 Rul. C. L. 97. DENIAL: 48 L.R.A. 177-210, n. Dickson V. Cole, 34 Wis. 621, L. C. 34, 3 Gr. & Rud. Turpis est pars. Inconsistent with admission permissible in Due Process of Law. Mercelis, 235 U. S. 579. Verification when essential to authenticate, see Verification. DE NON APPABENTIBUS BT NON EX- istentibus eadem est ratio : What is not juridically presented cannot be judicially considered, adjudged or decided. Cited, sees. 1, 6, 9, 24, Restatement. This is the leading maxim of the Trilogy of Pro- cedure. Its cognates, Frustra and Verba fortius must be well comprehended. The Code reaffirms these maxims. See Camp- bell V. Consalus; Rushton ; Sache, also Hughes' Equity In Procedure. What is not alleged is presumed not to exist. McKensie, 40 App. Cas. D. C. 74 ; 6 Rul. C. L. 97. Buller, J., in Dovaston V. Payne. Expressio Unius. Courts can- not add to allegations and make cases for pleaders. What IS not averred cannot be proved. Frustra: Friedlander, 38 App. Cas. D. O, 208. Morningstar; Garrett (U. S.). There are no more important prin- ciples of the law than De non, and its cognates. They are germane to many leading rules of Pleading of 96 THE LAW KESTATED De non, etc. — Construction and of Evidence and might well be vindicated in every broad discussion of Constitutional Procedure. 2Sfothing is more incredible than the way these great principles have been ignored and assailed as the discussions of the statutes of Amendments and of Jeofails will show. These statutes are aimed at the extirpation of these principles. And authors, almost, with- out exception have encouraged these attacks. (See Theory op the Case.) The Code reaffirmed these principles and other statutes deny them. (See Gulling v. Bank [Nev.]. These principles are the bulwarks against arbitrariness and usurpation. They are jurisdictional and dictate a certain definition and plac^ for Plead- ings and thus: "Pleadings are the juridical means of investing a court with jurisdiction of a subject matter to adjudicate it." It is this view that most of the American courts re- ject. Upon' uniform respect for and ap- plication of these principles depend the due administration of the laws. Wherever these principles are denied there the way for arbitrariness and abuse of power is paved; and there the logic and the philosophy of the law is turned into chaos and procedure has become a mass of statutes and conflicting cases (see New Yoke, Illi- nois and MissouBi. In Equity In Peocedure). De non, is a canon of logic, of Evi- dence of Pleading and of Construction. It calls for the rules of the general demurrer and all of these defend the attitude of the state at all stages, times and places exactly alike. (See Collateral Attack; Res Adjudicata.) These are the rules of substance vhich statutes cannot abolish. There are limitations of legislative authority. DEPARTURE: There shall be no de- parture. See Frustra; Res Adjudicata. The Trilogy of Procedure dictates this rule. Blackstone, Tidd, Chitty, Steph- en, Gould, Pomeroy and their follow- ers assert this rule but without suffi- cient elaboration to impress it as the same thing in the maxim Frustra pro- hatur quod probatum non relevat. It is vain to prove what is not alleged. 1 Gr. Ev. 51, 61-65 (applies with equal force to both civil and criminal cases ) ; 2 Tidd Prac. 920, quoted Literature, post; Story; Bristow, L. C. 135, et seq., 3 Gr. & Eud., Garrett. In other Departure. — language the Code reaffirms it. Cook- erell, 50 L.R.A. (N.S. ) 1, and cases in notes pro and con, upholding Story here and Thompson there. The lat- ter is upheld in Henry, 49 Ij.R.A. (N.S.) 1-44, in an extremely oflfensive way to the maxim also the logic and the philosophy of the law (an alle- gation of possession in cases like Les- ter, L. C. 341, 3 Gr. & Eud., and EalUgan, 49 L.R.A. (N.S.) , can be waived. S. P. Gulling; Merchant's Co. 42 L.R.A. (N.S.) 996, 998, which fol- lowed 6 Ency. PI. & Prac. 468^70. See Literature. Consider with Henry, Milhra, 45 L.R.A. (N.S.) 274, 277, 278, quoting Mondel v. Steel, L. C. 77, 3 Gr. & Rud. also the rule that "What ought to be of record must be proved by record and by the right record." Palmer v. Humiston, 46 L.R.A. (N.S.) 640; Campbell v. Consalus; Walter, 250 111. 420. A verdict departing from the allega- tions is void. Com. Dig. Pleader (§ 24). Magruder, 7 App. Gas. D. C. 310. The language of the Code is a para- phrase of Quis, quid, coram quo, 4 Gr. & Rud. This language is clear and peremptory that the "cause of action" must appear in the state- ment, complaint or petition and not from the answer or reply. And a fortiori not from matter that belongs to the statutory record, nor from the stenographer's minutes, nor from oral evidence as in Gulling and in Henry. From the notes to Cockerell, 50 L.R.A. (N.S.) 1-32, all kinds of cases can be picked. Story is upheld here and Thompson there. This is the "Theory of the Case" but under a case of a mild type of variance. See Feudal Law- yer; Devine v. R. R. DERING V. EAllI. OF WINCHBLSEA: W. & Tud. L. C. Eq., 2 Gr. & Rud. Con- tribution among sureties ; doctrines of. 6 Rul. C. L. 1035-1063. Implied con- tracts. DEVIATION: By Carrier withdraws from him the defense of accident. It malies him an insurer ; It is a change of con- tract ; an Implied contract to be sure but still and nevertheless a contract. Non hrcc: Kish v. Taylor (1911), 1 K. B. 625, 2 Brit. R. C. 575, ext. n. DEVINE V. R. B. 237 111. 278-284. Cited, § 23, Restatement. Conduct before a court may aid the record. Zellers, Con- tra Walter, 250 111. 420 (afBdavits and oral claims cannot add to a record). Gulling. See Consalus. Devine, Is like Devoy v. B. R. 192 Mo. 201. See "what ought to be of record." Oarrett: Fish v. Cleland, Aider. DEVINE T. ros ANGEIES, 202 TJ. S. 313. Aider not recognized. Florida Co. V. Bell, 176 U. S. 328, 329. But see TEXT-INDEX 97 Devine, etc. — Baker v. Warner, 231 D. S. 588, 593 ; Divine v. B. R. supra. : Aider. DICKSON r. COLE, 34 Wis. 621. L. C. 34, 3 Gr. & Eud. Cited, § 9, Restatement. Denials ; their requisites. When Juris- dictional. See Oarland v. S. ; Issues. Kept ^nant denials and admissions a ques- tion of local law. Washington, 235 U. S. 422. DICTUM: See Coram judice. Does not bind. 52 L.R.A.(N.S.) 740-741. Au- thority; Vicksiurg v. Henson; Nolle v. Oyster; Campbell v. Consalus. Is lim- ited by the Pleading. Marsh v. Pier; Martin v. Evans; Mandatory Record; Collateral Attacl: ; Res Adjudicata. DIES DOMINICUS NON EST JURIDICUS: Sunday is not a day for judicial proceed- ings. See 2 Gr. & Rud. ; Equity. Langa- bier, L. C. 174a, 3 Gr. & Rud. ; S. v. Conwell, L. C. 174. 3 Gr. & Rud. DIMES V. PROPBIETOBS OF THE grand junction canal, 3 H. L. Cas. 759. Nemo debet esse judex. The Ablest discussion of this maxim is in Oakley V. Aspinwall, L. C. 223, 3 Gr. & Eud. DIVISION OE STATE POWER: The first freat principle of a Constitutionalism. ee L. C. 142-146, 3 Gr. & Rud. P. ex rel. Welch v. Bard, 209 N. Y. 304. DIVORCE: By collusion no ground for vacation. Robinson, Wash. 51 L.R.A. (N.S.) 534. This view offends the in- terest of the state. Fahula: Reality of a "cause of action" must exist to attract jurisdiction. Scott v. McNeal. Alterum. 6 Rul. C. L. 177. Divorce Proceedings are never foreclosed. Lex non exacte. Degeneracy is a ground for. Suff, — W. Va. — , 51 L.R.A. (N.S.) 282n., marital in- tercourse ; Refusal. Wills, — W. Va. — , 54 L.R.A. (N.S.) 770. DOBSON v. CAMPBELl, 1 Sumner 319. 232(7, 3 Gr. & Rud. The limits of liberal construction of Pleading and judicial records. Cited in Penna. R. R. v. Ellet, 132 111. 663, wherein it was held that at the stage of Collateral Attack that Pleadings are to be more liberally con- strued than at the stage of the general demurrer. Contra: Ooldham v. Edwards, and cases there cited. See Ut res magia; Omnia pra'sumuntur rite. Baker v. Warner; State Bank, 53 L.R.A.(N.S.) 120, 126, 127 in Rushton. Compare Dobson with C. it A. R. R. v. Clausen which is a cognate of Clark v. Dillon which is extendedly discussed in relation to Codes. A "cause of action" must be stated. Oar- rett V. L. d N. R. R. 235 U. S. 308. Walter, 250 111. 420; 1 Gr. Ev. 19, 73. There are limitations of legislative au- thority. Huntsman v. S. (Tex.) L. C;. 231, 3 Gr. & Eud. ; 8. v. Terrell, Ind. 2 L.E.A.(N.S,) 251; also of the parties to contract a Procedure unto themselves. Campbell v. Consalus, see Codes. See 50 L.R.A.(N.S.) 1-32. DOMUS SUA CUIQUE EST TUTISSIMUM refugium ; Every man's house is his castle. Bemayne's Case. 4 Gr. & Eud. DOVASTON V. PAYNE, Sm. L. C. L. C. 217, 3 Gr. & Eud. Cited, Preface ; also sees. 8, 21, 24, 25, Restatement. Verba fortius: Clark v. Dillon; Antisdel v. R. R. 26 Wis. 145, 7 Am. Eep. 44, Pom. Code, 533. Limits of liberal Construc- tion. Dobson V. Campbell; Ooldham v. Edwards; Jackson v. Peaked; 1 Gr. Ev. 19, 73. Dovaston, etc. — Every presumption is against a pleader. De non; V. S. v. Linn, 1 How. 104 ; Stephen v. Beall, 22 Wall. 229, 239. Bowen v. Emmerson. Dovaston is a truly great case and every student ought to turn to it and read it, at least for the impression he will get from it. It will introduce to him Sergeant Williams who cited in his brief form books (See also Roberts v. Moon), to sustain such a principle as Terba for- tius. And he filed a special demurrer for a general one of which Buller, J., ob- served : This judge had breadth and depth, also the temerity to characterize Coke's three degrees of certainty as "a jargon of words." And he suggested that "es- toppel of record" (Res Adjudicata), had to do with Pleadings. Here is a fact that the Feudal lawyer did not understand. He knew no certainty, except from stat- utes and cases, and his forms of actions and form books. (See Common Counts; Feudal lawyer.) Also note that Sergeant Williams' and Coke's three degrees of cer- tainty were the star, sextant and compass of Feudal reckonings. (See Alterum.) His followers would teach, on the one hand, that the general demurrer could not be waived and on the other hand, that it could be — that substance could be waived. Also that the omission of a material allegation from the statement of the cause of action could be supplied from an adverse pleading, from a plea of confession and avoidance. Chitty and Stephen taught this incongruity arid for authority cited what students call the "Hook Case," the illustration of plead- ing found in their works. (See § Ij'i Equity In Procedure.) They taught as Story did in his sections, that a pleading must be sufficient on its face to pass the general demurrer, and further they taught along with this, that omitted matter could be supplied from other documents (They made way for all the aiders that have come. See Aider ; Feudal Lawyer ; Quod ab initio.) Eyre, J. in Dovaston tried to straddle ; he really succeeded in getting over on the right side but it was a struggle ; he was hazy in his remarks. It is from such straddles and wriggles that the student is left to find his way and pick and per- ceive the leading principles. To relieve the situation the Code was given, and the followers of the Feudal theories were given authority to say what it meant. As they did up Equity so they have done up the Code. Dovaston is a good Code case but it did not have the word "Code" in it and so the' principle Verba fortius was not expressed and impressed. The Antisdel (Wis.) case reaffirmed the prin- ciple in Dovaston but Professor Pomeroy and his followers have nowhere recognized this fact. In one section they will cite and approve Antisdel (§ 533, Pomeroy's Code) and in the next they will revolt at the "dogmas" of the common law. (§ 546, Id.) Bowen v. Emmerson, Tooker V. Arnoux, Clark v. Dillon and their cog- nates are like Dovaston, but Code au- thors have not so instructed their readers Indeed they teach that the Code is a revo- lutionary Act, sweeping away all of the old principles. (See Thompson, Pomerov Codes.) It cannot be learned from their works that there are cases that cannot be recalled or legislated away and that Do- vaston is one of them. For they impress their readers that Rushton, Brislom and 98 THE LAW EE STATED Dovaston, etc. — Dovaston have teen recalled. So we see that it was the lawyer and his establish- ments that set going the notion iliat great cases can he recalled. riad the lawyer plainly expressed Verba for- tius and elucidated it so it could be com- prehended as a great Universal, Consti- tutional principle then there would be some other "Datum Post" to reckon from instead of "a jargon of words." — Coke's three degrees of certainty. See Liter- ature. Munday ; Trilogies. DREDD SCOTT CASE, 19 How. SSS-e.SS. Excellent forms of Pleading. History of Slavery. DRUNKENNESS, when a defense to crime. U. 8. V. DreWf when to contract, Oore v. Gdhson, L. C. 413, 3 Gr. & Rud. Mats, 54 L.E.A.(N.S.) 1121. DUCHESS OF KINGSTONS' CASE: Sm. L. C. 1 C 76, 3 Gr. & Rud. The rules of Res Adjudicata. Estoppel of Record, 4 Gr. & Rud. See Kingston's Case. DUB PROCESS OF LAW: Must be de- fined from the Trilogy of Procedure. It means notice, a hearing according to that notice and a judgment entered in ac- cordance to that notice and that hear- ing. Standard Oil Co, v. Mo. 224 U. S. 270 ; ricksiurg v. Benson, 232 U. S. 259 ; Nalle V. Oyster, 230 XJ. S. 165. See Audi Alterum partem. See 2 Gr. & Rud. ; Equity In Procedure. Starbuck v. Mur- ray. The law of nations demands the elements of. sec. 11, Restatement. Feudal Lawyer. Pleadings are Jurisdictional. Garrett; Palmer v. Humiston. Authority depends upon. Mercelis, 235 U. S. 579. Due Process of Law. — Repugnant pleading is a question of local law. Washington, 235 U. S. 422. Pain ex parte, L. C. 107, 3 Gr. & Rud. Sihil possumus contra veritatem. Pleadings are to give notice. Garrett; Pariaso v. V. S. (See §§ 1-13, Restate- ment). DUE PROCESS OF LAW RECORD. See Mandatory record. Dictated from the Trilogy of Procedure which includes In- terest reipublicae. See sees. 1-11, Re- statement ; 6 Eul. C. L. 457-485. DUMPOB'S CASE, Sm. L. C. 2 Gr. & Rud. Technical rule for construction of leases ; a condition if once waived is waived forever (a feudal rule that has long been a stumbling block). DUNLAP V. CODY, 31 la. 260, 7 Am. Rep. 129-136, L. C. 168, 3 Gr. & Rud. Fraud vitiates service of process. Ex dolo malo See Pettibone, 4 Gr. & Rud. DURESS: Sasportas v. Jennings; Wat- kins. Non h{EC. DUTTON V. POOLE, cited in Equity. 86 Eng. Reprint, 20o, 215. Cited, § 11, Restatement. One may contract for the benefit of a third. Hendrick v. Idndsay, L. C. 319, 3 Gr. & Rud. ; Lawrence v. Fox. Contract. DYER v. DYER, W. & T. L. C. Eq. : Re- sulting trusts. See title Equity, in Equity In Procedure. DUPLICITY: A formal objection which is waived as such. Consensus tollit er- rorem. Flynn, 34 App. Cas. D. C. 92. Repugnancy vitiates a pleading. Fain, L. C. 107, 3 Gr. & Rud. TEXT-INDEX 99 E EI INCCMBIT PBOBATIO QUI DICIT, non qui negat : The burden of proof lies upon him who affirms not him who de- nies. See Burden of Proof; Actore: Bunnell v. Wilder, L. C. 185, 3 Gr. & Rud. This maxim and its cognates which are many reflect glimpses of Verha for- tius; FavoraJjiliores. EIGHMY V. P., 79 N. Y. 546-560, cited, Sec. 20, Restatement. In this case it was held that in a perjury ease facts might be made to appear by al- legations of conclusions of law. This case stands for Omnia prcesumuntur rite, and it is a cognate of Rice v. Travis in Illinois; also the Oreen County Bonds (U. S.). Also Balse- witz V. R. R. 240 111. 238, § 346, Equity in Procedure. The most ex- tended discussion of presumptions to support jurisdiction is in Grepps v. Burden, L. C. 113, 3 Gr. & Eud. The above American cases offend the maxim De non, § 1, Restatement. Also Clark v. Dillon and Tooker v. Arnoux. In some cases it is manifest that a judge makes up his mind to reach a certain conclusion and that for this end he will not only stretch the law but that he will also tear it, or break it. Judges not appreciating the Tril- ogy of Procedure very often flagrantly violate that fundamental law. And so all of the "Theory-of-the-case'' judges have distinguished themselves. These judges often go from one extreme to another. In one case no Pleading can be certain enough and in the next omissions of material allegations are supplied by extravagant applications of aider. See Story; Bushton; Lit- erature; Morningstar; Wing Clark v. West. Aider; In some cases the arguments are not only benighted, but they are Jesuitical as well. Many examples of these facts can be pointed to in the Federal decisions. See Pettihone; Peres v. Fernandez; Terre Haute R. R. V. Indiana; § 151, 1 Gr. & Eud. Conclusions of law did not state a fact. Hopper, L. C. 4, 3 Gr. & Rud.; Hanford, L. C. 86, 3 Gr. & Rud. Bow- en V. Emmerson. EJUSDEM GENERIS: Of the same de- scription. 2 Gr. & Rud., 2 Hughes Proc. BISECTIONS: Betting on are void con- tracts Quod, ab initio, and a bona fide purchaser gains no rights under such contract, not even commercial paper. Elections. — Exchange Bk. 139 Ga. 260, 51 L.R.A. (N.S.) 549. See Swift v. Tyson. In pari L. C. 358, 3 Gr. & Eud. ELECTRICITY: Duty to safeguard and to confine. Paducah Lic/M Co. 156 Ky. 197, 52 L.R.A. (N.S.) 586, n. Fletcher V. Rylands ; Indemaur v. Dames. EI.EVATOBS: Great care required of owner. Munsey, 37 App. Cas. D. C. 183. Indemaur v. Dames; Heaven v. Pender. EJIEKSON V. NASH, 124 Wis. 369, 109 A. S. 944, 70 L.R.A. 326, 2 Gr. & Rud. This case by Judge Marshall is one of the ablest of Wisconsin, the best Code slate in the Union. It is a cognate of Kewaune County v. Decker (a pleading cannot be "fish, flesh or fowl"), L. C. 30, 3 Gr. & Rud. This case may be reckoned with Rusliton and we have al- ways regretted that the very able judges of Wisconsin did not cite the old cases which they so often reaffirmed. ENO V. WOODWORTH, 4 N. Y. 249, .5:; Am. Dec. 370. Cited, § 8, Restatement. First Code case in N. Y. Discussion of the common Counts ; Conclusions of law. Cited in Equity. ENTICING ONE TO BREAK A CON- tract. Quinn v. Leathern, wherein is dis- cussed Boweri v. Hall, The Mogul case, Lumley v. Gye, Allen v. Flood. These five cases lead the discussion of a great principle of both Contract and Tort. And it often abuts Crime, Conspiracy, Malicious acts. Most every aspect of the question is presented in Quinn. To commit crime, Perrine, 40 Oltla. 359, 51 L.R.A. (N.S.) 718, R. V. Coney. See En- trapment. ENTRAPMENT: To commit crime. Kemp V. U. S. 41 App. D. C. 539. See En- ticement. B. V. Coney. EQUAL PROTECTION OE THE LAWS: 6 Rul. C. Law, 364-426. EQUITABLE ESTOPPEL: Horn u. Cole, cited Equity. See Equity. EQUITABLE EXCEPTIONS TO THE Statute of frauds : Lester v. Foxcroft, L. C. 341, 3 Gr. & Rud. ; 49 L.R.A. (N.S.) 112-120. Possession must be taken under the con- tract and have been held openly, con- tinuously, notoriously, exclusively and unequivocably. And this equity must be alleged and proved with great strictness. See Henry v. Hilliard, — N. C. — , 49 L.R.A.(N.S.) 1-44; Rushton. EQUITY: Its great maxims, principles and cases. See Title Equity, in Equity In Procedure. Maxims of Equity : See Juris prwcepta sunt haec: Regula pro lege si deficit lex; Uii jus iM remedium. These three maxims include many of those hereto- fore classed as maxims of Equity. See Equity In Procedure. Equity: As a river withovit a main Equity finds its way and percolates through all fields of the law. It bot- toms, it ramifies, it shapes and directs and supports all. It is the spirit of the law — the "letter killeth but the spirit maketh the law." This quota- tion carries with it three of the great- 100 THE LAW EESTATED Equity. — est maxims of the law and which we have gathered and sought to impress as the Trilogy of Equity. [Juris prce- cepta: Regula pro lege si deficit lex; and Uhi jus ibi remedium ) . This Tril- ogy has many cognates particularly in the field of Construction and in that of Procedure. Lex non exacte definit sed ariitrio iono viri permittit is one of the most instructive canons of Con- struction. (4 Gr. & Rud.) It is closely allied with Bxpressio eorum quae tacite nihil instmt operatur. By the application of this maxim M'Cul- loch V. Maryland, L. C. 147, 3 Gr. & Eud., resulted. ITrom this case as a "datum post" the' development of Fed- eral power has proceeded. Regula pro- tege si deficit lex is the canon of Con- struction that authorizes the applica- tion of the Prescriptive Constitution — the higher law in the Construction and application of all inferior laws — of all local and fiat law. The letter of written Constitutions and of stat- utes and of decisions must be made to accord with fundamental — the major — the organic maxims of the law of reason — of logic and philosophy. Ita lex scripta est is a narrow falla- cious rule born of the Feudal motto that "Parliament is omnipotent." Its application to Codes of Procedure and to Practice acts has dismembered and scattered the logic and the philosophy of the law. (See Story and data there cited, also Feudal Lawtek. ) Warring schools of Construction will destroy any branch of the law. Benedicta est expositio quando res redim- itur It destmctione. Accordingly we can perceive great maxims as canons of Construction and these canons inseparable from so called Constitutional Law. Ubi jus ibi reme- dium- was perceived by Marshall in Marbury v. Madison where he observed that it lay at the roots of govern- ment. It is a, universal principle in. the law of procedure. A esse that stands for this maxim is Ashby v. White, L. C. 273, 3 Gr. & Rud. Almost all of the great maxims have come to have a case nomenclature and each province, each publisher and al- most each school and author appears to have sought to get away from the old archaic expressions in the lan- guage of all nations and coin as they claim something "new" or "modern" and led by this ambition for originality and the clamor and hurrah of com- Equity. — mercialism have led into a babel of tongues — a veritable "legal jungle." To illustrate: Ut res magis valeat quam pereat in the law of Procedure has come to be viewed as something "new" and "modern," and as a prin- ciple introduced and developed in the application of Codes where it is called by the title of "Theory of the Case" Cockerel, 50 h.R. A. (N.S.) 1-32. Other authors have a different kind of "The- ory of the Case" as pointed out in re- lation to our title Story. The para- phrases of Quis, quid are supposed new law, also of several maxims of Equity. The maxims are discussed under variant titles in relation to the leading subjects of the law and often as some- thing "new." This has led many to claim that American law is something "new" and different to the law of all ages and to lead away from the funda- mental law — the Prescriptive Consti- tution. (See this.) There is equity in Constitutional law also in Proced- ure and all the other subjects of the law. A few Universal, Constitutional principles found and bottom the en- tire legal structure. Treating these irrelatively and away from their roots has led to a babel. Construction makes or mars; Con- stitutions and statutes not led and moulded by authentic Construction from the fountains — the fundamentals of the law leads to chaos — to a babel. The Code reaffirmed Quis, quid, coram quo: in the plainest way. Its clear and unambiguous language is set out in Cockerell, 50 L.R.A.(N.S.) 1-32. This provision is necessary, essential law, and is from antiquity. But these facts were not perceived by courts and Code authors for not one of them have quoted that maxim and stated that it is the old necessary law of all ages and must be respected by the courts of all civilized countries, whatever the language of local and flat law may say by its letter or legislative expres- sion. The Municipal Court of Chicago and the flnal Construction of this Act is a good illustration. [Walter, 250 111. 420 — pleadings cannot be enlarged nor supplied by evidence, oralities and stipulations of parties.) Also Camp- bell V. Consalus and its cluster of cases in New York. But the Feudal Lawyer could never comprehend the maxims and their philosophy. He would cite maxims but the inferior and secondary and not the primary — 1/l. TEXT-Ii^TDEX im. Equity. — the major — the organic ones. See what a mix-up he made of Res Adjudicata. At no place has he plainly perceived and impressed that the rules of Res Adjudicata dictate the leading rules of Pleading and of Evidence. And for results we have such cases as Gulling and its cluster and such discussions as attend Cockerell the fundamental pro- vision in which is constantly construed away. The discussions over Mondel V. Steel and Munday v. Vail, L. C. 77, 79, 3 Gr. & Eud., will show. Whether the old law and its afBrmance by Codes and Practice Acts shall be longer respected has filled the law with antinonyms. ( See S. v. Muench; Sache v. "Wallace, 4 Gr. & Rud. ; also in Equity in Procedure.) To erode — eat away and to override the major — organic maxims of all Pro- cedures and to scatter these around into several kinds and ' species as dis- tinct and irrelevant systems he has given us a multitude of supposed sys- tems all governed by separate and par- titioned rules. The great Universal, Constitutional canons he has led away from and silted over with his jargon — ^his statutes — Amendments and Jeo- fails and his cases until as Bacon prophesied there would come the be- wilderment that would threaten great empires before the lawyer would turn away from Feudal errorists and their masses of "Shelley" cases, so to -speak. Look at Gulling and its cluster of cases; at the teachings of the various shades of the "Theory of the Case" sects mentioned in reference to Story, also Rushton v. Aspinall — also Wil- liams, Sergeant. Herefrom arises the teaching of commercialism and of its supposed journals of education that the "law is the last interpretation of the law by the last judge;" also that "there are more than 5,000 new prin- ciples stated and developed each year." These assume and hurrah and din it into the ears of the student that every verbal change of old principles is "new" law. And such is the teaching in the schools as an investigation will show. In some of these great over- toppling digests and Cycs are taught as philosophical-student's works. And only a few lawyers have protested in Bar Associations ( See Maxims ) . Some have pointed to the indifference, the stupidity and the torpidity of the lawyer and of his establishments; and that the condition calls for more than reform, indeed for "revolution." (See Equity. — / Feudal Lawyer). Blackstone - in- forms us that he did not understand Equity and its maxims (§ 15, 1 Gr. & Eud.) Chitty as a, constructionist left his "aider by verdict" like the "seven lean kind" to eat and devour the fat and worthy kinds. See Rush- ton. Equity in Procedure has not been perceived by the Feudal Lawyer for he could not and at the same time de- fend his motto that "Parliament is omnipotent." This motto excludes the "Prescriptive Constitution." He never quoted and embraced the major-or- ganic maxims of Procedure and demon- strated their Universal, Constitutional character; for these had to be re- strained and kept within the policy and teaching of that fallacious and blinding motto. Only here or there some great judge would break away and hint at a superior body of law. But then no one would make of a great principle what its origin, history and ramifications called for. To illustrate : Look at Idem agens et patiens esse non potest its paraphrases and rami- fications. Note that one of these is the "first principle in the administra- tion of justice" in New Yorl;. §§ 509- 522, Equity in Procedure. And here let us ask, where prior to 1902, was Keech v. Sandford cited in any work on Contract or on Agency? Equity was introduced in the Earl of Oxford's Case by Eoyal Edict. And then it was virtually turned over to Feudal intellects to administer against the frowns and rage of Coke. (See Chapter I., 1 Gr. & Rud.) Its juris- diction was limited and circumscribed by nearly a score of minor and sec- ondary maxims to suit the Feudal in- tellect — such as it coined and thought it comprehended. Elsewhere we have assigned for Equity three of the major- organic maxims (Juris prcecepta sunt hcec: Regula pro lege: and VH jus ibi remedium — §§ 27-39, Equity in Procedure) . In pari: is susceptible of almost in- finite paraphrases; now why assume that "He who seeks equity must come into court with clean hands;" or in other words "He who hath done in- iquity shall not have equity," should distinctively be a maxim of equity. If In pari was broadly taught in Con- tract and in Procedure would it not be comprehended as a great principle in Contract, Equity, Procedure, ju- risdiction and in all other relations? 102 THE LAW EESTATED Equity. — Now of what earthly use was such paraphrases assigned to Equity? What did these add to the law? And further what did "He who seeks Equity must do Equity" add to the law? Must not one give something — some consideration some Equity for an obligation before he could enforce it? Is not Ex nudo paoto: a maxim of Contract, of Equity and of Procedure as well? What does "non oritur ac- tio" mean? Does it not bring with it a consideration of what is a, "cause of action" which is so important in all systems of Procedure? (See Quis, quid, coram quo.) And so we may similarly observe' of "mutuality is equity." Of course both sides must be bound or neither. Coolce v. Oxley, L. C. 321, 3 Gr. & Rud. Elsewhere we have reviewed the Feudal maxims that were assigned for Equity. Most of these are stumbling blocks rather than aids. Of course such roots have brought with them more than a thou- sand "Shelley" cases for each, from which commercialism gathers and con- fuses, 1 C. J. Cyc. 958. Equity has been so thoroughly taught as an irrelative branch of the law and as "new" law that its Pro- cedure has been treated as sui generis. Elsewhere we point out that the great sections of Story have not been adopted and impressed by a single Code or common-law author. And not one has made it impressive that Pleadings are jurisdictional. ( See Story; Rushtonj Quis, quid, coram quo.) Equity came and was turned over to the Feudal Lawyer to apply and of course he failed. The Code came, a sprout of Equity and a paraphrase of its maxims and was likewise turned over to his followers and what have they made of it? (See Story; The- ory OF THE Case; Gulling and its cluster; also Pomeroy, Rushton and Ohitty.) Equity was introduced and was then smothered and made hateful and a bewilderment by senseless and use- less maxims or paraphrases of well worn ones instead of the major and organic ones. And so it was with the Code. It reaffirmed the Trilogy of Procedure and its cognates but in- stead of recognizing this necessary and illumining fact these were led away from and were construed out and even denounced both directly and indirectly. The Code was destroyed by attempting to construe it upon the assumptions Equity. — that it was something new by the rules of the Feudal Lawyer. He has never had the genius necessary for a great government, its commerce, its development and its protection. In conclusion we ask the student to first read the Trilogy of Procedure and then Pomeroy's Remedies, §§ 506- 608 and see how he viewed the maxims which in other works he quoted also commended. The facts are that where others quoted them so did he and where others excluded and denounced them so did he. Compare his §§ 533 and 546. Why did he uphold Verba fortius in Antisdel and denounce it in Dovaston, L. C. 217, 3 Gr. & Rud.? Antisdel and Dovaston are exactly alike. Why did he cite old cases in his Equity and omit them in his Code Remedies? (See Bristow; Rushton, L. C. 135, 3 Gr. & Rud.) From the start he assumed that the Code was a new institution — that it brought new principles. (See Pom- eroy; S. C. 50 L.R.A.(N.S.) 1-32.) And so it happened that Equity in Procedure has had a most tempestuous voyage. But it has come tempest tossed and battle scarred. One of the late attacks on Equity is the exposition by the Hornbook au- thors. Smith and Clark, upon elucidat- ing the maxim "Equity regards that as done which ought to be done." This is in their works on Elementary law. We refer to this new explication in relation to Story, q. v. Contract principles are elaborately discussed in Equity, l^on hcec in foe- dera veni is ably and extendedly dis- cussed in Rees v. Berrington — the law of sureties, L. C. 334, 3 Gr. & Rud. Mutuality of Contract is also a prin- ciple strictly safeguarded. Coolce v. Oxley, L. C. 321, 3 Gr. & Rud. One's assent is indispensable to a contract in all relations. Lampleigh v. Braith- u-ait, et seq. L. C. 301, 3 Gr. & Rud. Assent to a contract is not implied from the mere acceptance and use of a consideration, in case of mistake. (See Mistake; Boston Ice Co. L. C. 320, 3 Gr. & Rud.; Smout v. Ilberry, 4 Gr. & Rud. Courts will not make contracts for parties. Cutter r Pow- ell, L. C. 308, 3 Gr. & Rud.; Hoare v. Rennie. The consideration— i?x nudo pacta rnust pass in order to create an obliga- tion in all relations. This is dis- cussed in L. C. 301-333, 3 Gr. & Rud. Generally inadequacy of consid- TEXT-IITDEX 103 Equity. — eration in the absence of fraud or mistake is no cause for Equitable re- lief. Thornborow v. Whitacre, L. C. 333, 3 Gr. & Rud. Undue influence— Hiiegunin v. Basely is elaborately dis- cussed in Equity. Also Catching bar- gains — Chesterfield v. Janssen, 2 Gr. & Eud. In pari delicto transactions cannot be a "cause of action." Jurisdic- tion does not attach to an illegal cause. Such a claimant has not "clean hands;" he has done iniquity and he cannot have Equity as is above observed. If a judgment is entered upon a statement that shows that it is founded upon illegality such judg- ment is coram non judice and is of- fensive to first principles of Equity and to Procedure. (L. C. 358-374, 3 Gr. & Eud. ; See In pari. ) Fraud and mistalce in Equity are the subjects of extended discussions. (See Story's Equity.) Principles of Contract constitute much of Equity discussions. The written Contract cannot be changed by oral evidence. See Id.; Woollam v. Beam, L. C. 53, 3 Gr. & Eud. Crime also borders Equity. In cases of enjoining Crime {Hamilton v. Whitridge, L. C. 280, 3 Gr. & Eud.) there necessarily arise for considera- tion what is a crime, also the remedies in Criminal Procedure, also the exigen- cies for Equitable interference. There are cases arising in Contract that also include Tort also Crime and also call for Equitable relief. To illustrate: The cases that include phases of Ca- veat Emptor, Deceit-Misrepresentation and False Pretenses. {R. v. Wheatley, L. C. 19, 3 Gr. & Eud.) The jurisdiction of equity has been long resisted by the Feudal Lawyer. He has taken no broad view of Boni judicis; Lex non exacte. Statutes limit and define. Littleton, — Wyo. — , 2 L.R.A.(N.S.) 631 (statute must ex- tend its jurisdiction to crime). Tort also becomes involved in many Equitable questions. In the law of Nuisance are found illustrations {Sic utere; Alterum,). The question of enjoining Torts or trespasses is one of the important branches of Proced- ure. {Bonaparte v. R. R. L. 0. 278, 3 Gr. & Eud.) Injunction Procedure should be fa- miliar to all practitioners. It is prac- tically Code Procedure where the gen- eral allegation, the general issue, the common counts and the fallacies of ' Equity. — Aider by verdict are not respected. In injunction Procedure the Pleadings are to limit the issues and to narrow the proofs; and they must be trvie; also certain. See Dinehart v. Lafay- ette, L. C. 279, 3 Gr. & Eud. In conclusion it may be said that the law is an entirety and cannot be broadly comprehended from any one of its branches. No one branch teach- es more than does Equity and its leading discussions. Into it pours al- most all of the law. The Trilogies of the leading subjects elsewhere gath- ered are Equitable roots and there are related to Equity. The major max- ims of the law are from Equity. Eecapitulating it seems well to state that Equity pervades all branches of the law. Maine's Ancient Law, 42-69. The Trilogy of Equity (Sec. 14, Ee- statement) and its cognate maxims bottom Procedure. In pari delicto has many cognate maxims and it is both a maxim of contract and of procedure. (Sec. 17, Eestatement. ) It often is closely allied with Alterum non Iwd- ere: also such maxims as "He who hath done iniquity shall not have equi- ty;" jurisdiction does not attach to illegality: In equali melior: "one must come into court with clean hands." It also abuts Crime, as will appear from Crimen omnia and its cognates. Ex turpi causa. Also Tort. Ex dolo malo. One cannot contract against his own negligence. R. R. v. Looktoood, L. C. 353, 3 Gr. & Eud.; Nullus commodum. The inadequacy of consideration is also discussed in Equity. Thornborow, L. C. 333, 3 Gr. & Eud. See Rescission ; Un- due Influence. Idem agens and all its cognates are Equity. Hughes' Equity In Procedure, 510-522. Construction and its maxims are of equi- table origin. § 20, Eestatement. Equity : Its major — organic — maxims : Juris prwcepta; Vbi jus; Regula pro lege. Idem agens et pattens esse non potest is a great maxim of equity. See a discussion of this maxim in Sees, 509- 522, Hughes' Equity In Procedure, and compare maxim teaching with cases, where those are taught without regard to the maxims. Melius est petere fonten guam sectari rivulos (4 Gr. & Eud.). ERROR: What is waivable. See Intro- ductory Chapter ; Appellate Procedure. Without prejudice is no ground for re- versal. De minimis; Morningstar. Appearing from the mandatory record needs neither exception nor objection. Windsor r. McVeigh, L. C. 1, 3 Gr. & Eud. Nor .issignment of Errors. Sec Assignment of Errors. ESTOPPEL: Equitable estoppel. Horn v. Cole. By Deed. Christmas v. Oliver. Forensic. Baily v. Bail]/, L. C. 44, 3 Gr. & Rud. ; By record. See Bes Adjudi- cata. See Title Estoppel, 2 Gr. & End. 104 THE LAW RESTATED Estoppel. — Rea Adjudicata dictates many rules of Procedure. See Res Adjudicata. Gar- The rules of Res Adjudicata. See 4 Gr. & Rud. ; also L. C. 25-30, 3 Gr. & Rud. The fundamental maxim ; Allegans con- traria forbids that one deny and admit at the same time. Dickson, L. C. 34, 3 Gr. & Rud. ECM QUI NOCENTEM INFAMAT, NON est aquum et bonum ob eam rem con- demnari : Delicta enim nicentium nota oportet expedit : It is not just and proper that he who speaks ill of a bad man should be condemned on that account ; for it is fitting and expedient that the crimes of bad men should be known. 2 Gr. & Rud. Harrison v. Bush, 2 Gr. & End. EVERY ACT IS PRESUMED TO BE rightly, regularly and validly done ; 2 Gr. & Rud. Omnia prwsumuntur rite. See Presumptions. EVERY MAN IS PRESUMED INNOCENT until he is alleged and proven guilty. 2 Gr. & Rud. Actore; Favorabiliores. Coffin V. U. S. See Presumptions. EVERY MAN IS PRESUMED TO INTEND the natural, direct and probable conse- quences of his act. 2 Gr. & Rud. Squib Case. EVERY MAN IS PRESUMED TO KNOW the law. 2 Gr. & Rud. Ignorantia Legis. EVERY MAN'S HOUSE IS HIS CASTLE. 2 Gr. & Rud. Semayne's Case. EVERY PRESUMPTION IS AGAINST A judgment and its foundation record of- fered to prove an estoppel or title to property, real or personal. 2 Gr. & End. Clem, L. C. 2c, 3 Gr. & Rud. See Au- thority : Morningstar. EVERY PRESUMPTION IS AGAINST A pleader. 2 Gr. & Rud. Verba fortius; Dovaston and cognate cases ; Garrett. EVERY PRESUMPTION IS AGAINST A wrongdoer. 2 Gr. & Rud. Armory, L. C. 180, 3 Gr. & Rud. Omnia prwsumun- tur contra. EVERY PRESUMPTION IS IN E.IVOR of the credibility of one speaking in ex- tremities. 2 Gr. & Rud. See Dying declarations. EVERY WORD MUST BE GIVEN EE- fect to, if possible, in construction. 2 Gr. & Rud. V. S. V. BalUnger, 33 App. Cas. D. C. 211. See Words, Expressio Vnius. EVIDENCE: Fundamental rules of, radi- ate from the Trilogy of Procedure from its Interest Reipublicw — Res Adjudicata. EX ANTBCEDENTIBUS ET CONSE- quentibus fit optima interpretatio : A pas- sage will be best interpreted by refer- ence to that which precedes and follows. NosciUir a socii^. Verba generalia. EX CAUSA TURPI NON ORITUR ACTIO: From one's own wrong arises no right, i; Rul. C. L. 2in. See In pari; Hullus fommodum- capere. Ex dolo malo. Crimen omnia. Ex malefiHo: Ex rntisa ti'^-'"^ EX CEPTIO FALSI EST OMNIUM Falsi : A false plea is tlie basest ui uii things. See Sham Pleadings ; Graver v. Faurot, L. C. 102, 3 Gr. & Rud. Nihil possumus contra veritatem. See Gulling and its cluster ; Dickson v. Cole, L. C. EXCEPTIONS: Importance of to save waivable error. Consensus tollit erro- rrm ; L. C. 290o-299, 3 Gr. & Rud. Kec. .53. 1 Gr. & Rud. EX DOLO MALO NON ORITUR ACTIO: No cause of action arises out of fraud. Cited, sec. 15, Restatement ; 6 Eul. C. L. 212-222. In pari; Ex causa turpi: Nullus Ex dolo, etc. — commodum capere: See Fletcher v. Peck (exception). McMuUen, 174 U. S. 654. Construction of statutes : tricking and de- ception, unavailing ; Suljstance is looked to. Cake v. D. of C. :r.i App. Cas. D. C. 272. BXECUTIO JURIS NON HABET IN- juriam : The law will not in its executive capacity work a wj'ong. 2 Gr. & Rud. EXECUTION: Depends upon the manda- tory record. Windsor, L. C. 1, 3 Gr. & Rud. See Collateral Attack. And so do execution sales. Windsor v. McVeigh, L. C. 1, Gr. & End. ; Hoback v. Miller. Also in Tax Sales. Lawrence v. Fast, et seq. L. C. 132 ; 3 Gr. & Eud. EXEMPLARY DAMAGES: See Wagner, L. C. 290, 3 Gr. & Eud. ; 16 L.R.A.(N.S.) 440n. Also called Punitive, Vindictive, and Smart Money. EX FACTO ORITUR JUS: The law arises out of the facts. Fabula non judicium. And these must be stated. Quis, quid, coram quo: De non. And these are nev- er foreclosed. Nolle v. Oyster; Andrews V. Andrews, 188 U. S. 14. EX NUDO PACTO NON ORITUR ACTIO: No cause of action arises from a bare agreement. Cited, sees. 15, 17, Re- statement. In other words a consider- ation is essential to constitute a wronged person. Actio non datur non damnificato: Every maxim that has the words "non oritur actio" has a pro- cedural phase. It involves the Trilogy of Procedure; and of course the gen- eral demurrer — the "cause of action" provided for by the Code. 6 Eul. Cas. Law, 63-72. Won hare; Ex nudo pacta; and In pari delicto, we class as the Trilogy of Contract. These are the leading principles to master. These are the assent, the Consideration and the le- gality of the subject matter. (See pp. 566-572, Equity). These principles are variantly expressed but the idea is the same. Ex nudo has an exten- sive case nomenclature which is very instructive. (See Giimher v. Wane, L. C. 311, 3 Gr. & Rud.) Cumber v. Wane and cases that follow it in 3 Gr. & Rud. should be familiar to every student. See Contract; 1 R. C. L. pp. 185, 186; 6 Id. 74. Where there is no consideration for a promise there is no wrong. Actio non datur non damnificato. Fabula non judicium. Therefore in all simple contracts (except commercial paper) the consideration must be alleged and proved, if the allegation is denied. The request, the consideration and the legality of the subject matter are ju- risdictional. Rann v. Hughes, L. C. 312, 3 Gr. & Rud. These must be averred to constitute a "cause of ac- tion." Lampleigh v. Brathicait, L. C. 301, et seq., 3 Gr. & Rud. De non op- TEXT-INDEX 105 Ex nudo, etc. — parentibus : The Promise must be averred. Boioen v. Emmerson (Code) (See Weber v. Lewis, — N. D. — , 36 L.R.A.(N.S.) 362 stated under Con- tract). The essential elements must be averred. Quis, quid, coram quo; De non. The presumption of innocence-moral- ity attends and therefore the legality of the siibject matter need not be averred. Illegality is a matter of de- fense and must be pleaded except where it appears from relevant evi- dence wherefrom for the state's atti- tude. Alterum non Icedere. Res inter alios acta: the defense is available. But the evidence must be relevant. Quod nullum est, nullum est effectum-. (But see Henry v. Hilliard, 49 L.E.A. (N.S.) 1— i4, where irrelevant evidence was treated as a juridical element. This case is noticed anent Lester v. Foxcroft.) The state interdicts il- legal contracts also that its courts sit and entertain them. Therefore no ju- risdiction attaches to an illegal com- pact. The general demurrer is never waived. A pleading must state a "cause of action." Campbell v. Gon- salus; Clark v. Dillon, and Rushton v. Aspinall, L. C. 5, 3 Gr. & Rud. The letter of the Chicago Municipal court Act yields to the Trilogy of Proce- dure. Walter, 250 111. 420. (Stat- utes yield to fundamental law — the Prescriptive Constitution. ) From the above observations appears the necessity of right notions of the elements of a contract; also why these must be alleged to constitute a "cause of action." These elements are not presumed, nor supplied by aider and waiver. The statutes of Amendments and of Jeofails, the liberal provisions of the Code and of Practice Acts will not supply omitted allegations of sub- stance. There are limitations of lib- eral Construction. Dobson v. Camp- bell. Nor is irrelevant evidence a ju- ridical factor that courts will consider. Frustra probatur quod probatum non relevat. (See De non.) An exposition of the words "non ori- tur actio" indicates what must be al- leged in order to pass the general de- murrer, which is never waived. Alter- um non Iwdere. (See Lampleigh v. Brathwait, L. C. 301, 3 Gr. & Kud. and note. ) Vamina ot a child as a consideration. Oardner. 217 Mass. 492, 51 L.B.A.(N.S.) 1108. Ex nudo, etc. — Extending time of payment; what a suffl- cient consideration for. Lahn, 139 la. 347, 52 L.R.A.(N.S.) 327-368, ext. n. New agreements, abrogation, altering, rescinding, supplementing, cancelling or supplanting prior contracts. Morecraft, 48 N. J. L. 729, 54 L.E.A. (N.S.) 1-71, ext. note. BX PACTO ILLICITO NON OKITUR actio. From an illicit contract no cause of action arises. In pari; Ex causa turpi; Alterum. EXPERT EVIDENCE. To prove cause of accident. Cumherland Telephone, — Tenn. — , 53 L.R.A.(N.S.) 1045-1056n. As to cause of death, disease or injury. Castaine, 249 Mo. 102, 53 L.R.A.(N.S) 1058-1099, ext. n. EX POST FACTO LAWS. Calder V. Bull, L. C. 237, 3 Gr. & Eud. ; 6 Eul. C. L. 276-309. Branson. BXPKESSIO EORUM QUAE TACITB IN- sunt nihil operalur ; The expression of those things which are tacitly implied operates nothing. In other words things Implied need not be mentioned. See Ac- CESSORiuM ; Cuicunque aliquis quid. If a grantor sells land entirely surrounded liy his own the law will imply that he intended to grant also a way of ingress and of egress to such land. If he sells timber the vendee has a right of entry to cut and remove such timber. Cuicunque. This is a maxim of liberal construc- tion and is closely allied with Lex non exacte definitj Ut res magis valeat quam pereat. Consensus tollit er- rorem; Omnia prcEsumuntur rite; and Utile per inutile non viiitur. Ex- pressing what the law implies has no effect. If the law allows interest after the maturity of a note to provide ex- pressly what the law annexes is sur- plusage. Fundamental principles annex them- selves by implication. The maxims of the Prescriptive Constitution will pre- vail over the letter of the statute. Walter, 250 111. 420; In prcesentia. In the Construction of the Federal Constitution this maxim has often been applied as in M'Culloch v. Maryland, L. C. 147, 3 Gr. & Rud. and cases there cited. See 6 Eul. C. L. p. 40. M'Culloch V. Maryland is a case of liberal construction. It has been much opposed by the state's rights school. But it has been often applied by the Federal Supreme court. Federal pow- er has been developed upon this case. EXPBBSSIO UNIUS EST EXCLUSIO AL- terius: The express mention of one thing implies the exclusion of all oth- ers. Cited, sec. 12, Restatement. This maxim is closely allied with the Tril- ogy of Procedure. De non apparenti- bus requires that a "cause of ac- tion" be juridically presented. Quis, quid, coram quo. And the matter so presented excludes all others. If the statement is for "dollars" this excludes 106 THE LAW KESTATED Expressio, etc. — "acres." If a judgment were entered for acres where dollars were sued for then the judgment would be void. It would be subject to Collateral Attack. A judgment is construed by the Plead- ings filed in the case. Vicksburg v. Henson; Nolle v. Oyster; Mondel v. Steel, L. C. et seq., 3 Gr. & Rud. Miltra, 45 L.R.A.(N.S.) 274, 277-278; Palmer v. Humiston, 46 L.R.A. (N.S.) 640. This maxim is widely cited. World's Fair Co. 224 U. S. 173: Gromer, 224 U. S. 362 (reservations not expressed are not made ) . It is much involved in discussions of the ad- missibility of Oral evidence to aflfeet written. See Contra scriptum; Fiunt enim; De non. Each word must be given effect if pos- sible. See Words ; Everi ; Ita lex. 6 Rul. C. L. pp. 40, 48. Expressio unius is a cognate of the maxims upon which the oral evidence rule is founded. See Fiunt enim.; Contra scriptum,. The rule that oral evidence ia inadmissible to alter or vary that which is written is an ap- plication of this maxim. See L. C. 46-54, 3 Gr. & Rud. The rationale of this rule is stated in § 53, 1 Gr. & Rud. It is also closely related to Non hwc in foedera veni. See Cutter v. Powell, L. C. 308, 3 Gr. & Rud.; Hoare v. Bennie. The very important rule of Pro- cedure namely, "What ought to be of Expressio, etc. — record must be proved by record and by the right record," is also an appli- cation of it. Mondel v. Steel, L. C. 77, et seq., 3 Gr. & Rud. Palmer v. Humiston. De non apparentibus and its cognates from some angles are sometimes an application of Expressio unius. It applies to all documents, to Con- stitutions, statutes, contracts and to every collocation of words. It some- times is closely allied with- Ita leas scripta est where the latter leads the construction of statute. It is applicable in all relations ex- cept where the nature of the subject matter or where fundamental law dic- tates the application of Expressio eorum or of Lex non exacte sed arbi- trio instead. The latter are maxims of liberal construction. The student will be much instructed to connectedly consider all of these maxims. From them he will get good impressions of the theory of construc- tion. EXTREMIS PKOBATIS PR^SUMUN- tur media : The extremes being proved the intermediates are presumed. — Omnia prwsumuntur rite: Manifesta protatione. EX TURPI CAUSA NON ORITUR ACTIO: No action arises on an immoral contract. In pari. Ex turpi contractu non oritur actio. Alterum. ES. UNO DISCES OMNES: From one thing you can discern all. Extremis pro- hatis ; probatis extremis. EYRE V. SHAFTSBURY: Wh. & Tud. L. C. Eq. Infants J custody and control of. See IMFANTS. 2 Gr. & Eud. TEXT-INDEX 107 F FABUIA NON JUDICIUM: Fiction will not attract nor confer jurisdiction. Cited, sees. 7, 10, 15, Restatement. Ttiere must be reality of cause of action. See L. C. 267-270, 3 Gr. & Rud. ; White v. Bluett, L. C. 367, 3 Gr. & Rud. Legis non verbis. Haddock; Andrews v. Andreios ; Scott v. McNeal. Moot, sham and mythical cases Kill not at- tract jurisdiction. Bro. Max. 329, 8 Ed. ; 2 Gr. & Rud. Exceptio falsi; Scott v. McNeal; 4 Gr. & Rud. Actio non datur non damniflcato. Quod nullum est nullum producit effectum. TACTS NOT CONCI-USIONS OF I.AW must be pleaded. Clark v. Dillon; Eighmy v. P.; C. & A. R. R. v. Clausen. FALSA DBMONSTRATIO NON NOCBT: Mere false description will not vitiate. Noscitur a sociis. Vt res magis valeat qiiam pereat. FALSE IMPKISONMENT. 2 Gr. & Rud. Immunity for. West v. Smallwood. FALSE PLEADING. Graver v. Faurot, L. C. 102, 3 Gr. & Rud. ; Nihil possumus. Emceptio falsi. Turpi est pars. FALSE PRETENSES: R. V. Wheatley, L. C. 19, 3 Gr. & Rud. ; R. v. Hazleton, 4 Gr. & Rud.; 17 L.R.A, (N.S.) 244n. FALSUS IN UNO FALSUS IN OMNIBUS: False in one thing false in all. Impeach- ment of witnesses, 2 Gr. & Rud. ; 29 L.R.A. (N.S.) 680n. Turpis est pars: Re- pugnancy. FAVORIBILIORES RBI POTIUS QUAM actores habentur : Defendants are to be favored rather than plaintiffs. See Tril- ogy OF Peocbddee ; Verba fortius; Ac- tore; Bdeden of Peoof. FEDERAL PROCEDURE: 2 Gr. & Rud. Pleadings are jurisdictional. Vicksburg V. Benson ; Garrett. General demurrer cannot be waived. V. 8. V. Linn; Nolle; Garrett; North Carolina; V. S. v. Crnikshank. Minne- sota, 194 U. S. 48 ; Oragin, 109 U. S. 194 ; McAllister v. Euhn, L. C. 3, et seg., 3 Gr. & Rud. 242, 1 Gr. & Rud. Holds that the general demurrer at the stage of the motion in arrest is to be governed by more liberal rules. Baker V. Warner, 232 U. S. 588, 593. Certainty is reckoned from what the defendant can understand. Pariaso v. U. 8.; Garrett. FELLOW SERVANT: Farwell V. Boston R. R. 38 A. D. 339 ; 2 Gr. & Rud. ; 45 L.R.A. (N.S.) 1195. FERGUSON v. CRAWFORD, 70 N. T. 253, 26 Am. R. 580. L. C. 264. 3 Gr. & Rud. Judicial recitals, when binding. Yicksburg v. Benson; Ut res: Variance. Knickerbocker. FEUDAL LAWYER: His views of Pro- cedure. See Squib Case; Variance; Rushton; Alterum. Of the real party in interest. Hcndrick v. Lindsay; Lawrence v. Fox. See Contract. Feudalism and imperialism have led into bewilderment (§ 21, Restate- ment of Law) . They have not com- prehended and taught the Prescriptive Constitution {§ 21, Restatement). Feudal Lawyer. — They never comprehended and vindi- cated the major maxims. ( §§ 2, 3, Re- statement ; also common counts ) . They reasoned nothing from Alterum, and consequently they never saw or respected the attitude of the state in Procedure. Oonsequently they never perceived the mandatory record as a barrier of defense against arbitrari- ness and its insidious tyranny. From their regiments of authors they have no Ulpians, nor Bacons nor Mansfields, nor Kents, nor Shaws, nor Storys, nor Fields, nor Bishops nor Brooms. (See Literature.) They have never so taught Pleadings as a jurisdictional means that their followers have not openly advocated their abolition, also countenanced the most extravagant kinds of aider or waiver of them ( See Story; Gulling; Rushton). They have not comprehended Res Adjudicata and Due Process of Law. They have never perceived and defined the operations of the general demurrer and its Correlatives. (See Introduc- tory Chapter, Restatement.) It seems well to collate some of the facts about the Feudal Lawyer and his followers so as to impress the mis- chiefs that have desolated the due ad- ministration of the laws in American governments and which have dismem- bered its logic and its philosophy and brought reproach upon the lawyer and his establishments. (See Pomeroy.) Among his fallacies are: 1. That the "Power of parliament is omnipotent." (See the title Chittj' and the matters there referred to; also Story; Rushton; Literature; Codes; Gulling; Parliament; In prce- sentia. 2. That the law- of Procedure is of local and fiat origin and is founded upon and depends upon the declarations and commands of statutes and the deci- sions of "native sons" and their "late cases" (see Gulling and its cluster; also Departure) . 3. That a local and provincial Due Pro- cess of Law may be established in every neighborhood in disregard of the Prescriptive Constitution, of the ma- jor-organic maxims of law which we gather and introduce in sections, 1-2(1. Restatement. That the "Manner of 108 THE LAW KESTATED Feudal Lawyer. — the Romans does not give the same protection under all skies and in all climes." That the only fundamental law is to be found within the four corners of a written constitution and depends upon its letter. Ita lex scripta est. These facts can be picked from the writings of American constitutional writers. 6 Eul. Case Law 34. At the same time they assert that there are underlying principles which control. They can be cited to sustain either view. In one case, the court of appeals will decide that no man can be judge of his own dispute, and in the next a late judge of this court, will advise a high court that he cannot find "any- thing in organic law" that interdicts a prosecuting committee from sitting as judges to try one whom they have indicted. See Nemo dehet esse judex. 4. That local and fiat laws may change, or derogate from, or deny fundament- al principles; also that it may either give or withhold the necessities for operating the judicial department i. e., such matters as necessary records for essential certainty, to defend the atti- tude of the state and its high policies of Procedure — Res Adjudicata and its correlatives (See Introductory Chap- ter ; Garrett ) . The attempts to fol- low these tribal views have made the mystery of the Code; also the dese- cration of the elements of Due Process of Law. (See Codes; 3 Am. Law School Review, 602-609.) 5. That whether or not a "cause of ac- tion" need be stated depends upon' local and fiat law. (See Quis, quid, coram- quo also its citations in the sec- tions of the Restatement; also Story.) 6. That the general demurrer may either be abolished oi- disregarded as may suit tlie whim or caprice of the court. That it is competent for a statute to provide that the general demurrer, un- less made particular, or special, may be disregarded. (See Quis, quid.) 7. That the state's attitude in Procedure may be waived by the litigating par- ties or either of them; or that it may be legislated away; that the state's mandates for the Coram judice pro- ceeding may be minimized or disre- garded. (See Gulling and the cita- tions to it; also Oakley.) 9. That he has filled legal literature with illusory jargon about three degrees of certainty, when the only certainty re- quired is to protect the state's atti- tude in Procedure. {Garrett.) This Feudal Lawyer. — element which is the leading star, he does not introduce, explain and im- press. It is hinted at in a notable Code case Campbell v. Consalus which leads our discussions of the Code. (See this case and citations to it in the Restatement.) It reaffirmed Guest V. Warren. These cases defend the at- titude of the state and this fact might have been so plainly stated that argu- ment for Interest reipuhlicce would not be necessary. These cases are made prominent in relation to Codes. 10. That there are several kinds of aider or enlargements of liberal rules of Construction to aid defective Pleading and even of the omission of substance. (See Rushton; Quod ab initio; and citations to these titles in the Restate- ment. ) 11. Ignoring the state's attitude and its necessities for certainty, §§ 56-60, 83- 123, 1 Gr. & Rud., has jumbled and confused the distinctions between the mandatory and the statutory records and by this means there has been driven into the logic and the philos- ophy of the law a wedge which dis- members the machinery of certainty and the bulwarks of protection given by the Prescriptive Constitution (see Introductory Cliapter, Restatement; also §§ 12, 13 Restatement; Planing Mill V. Chicago, L. C. 2d et seq., 3 Gr. & Rud.; Pennowfsky v. Goerver; Garrett; Mandatory Record). 12. By either destroying or by keeping the distinctions between the two jurid- ical records above referred to in a state of judicial anarchy, he has paved the way for the "Theory of the Case." This new doctrine removes all protec- tion from the mandatory record, the Trilogy of Procedure stated and dis- cussed in §§ 1-13, Restatement. Feu- dalism and imperialism have always opposed the Prescriptive Constitution; (§ 21, Restatement). In Justinian's time his subjects stood out for the higher law as did the Anglo-snxon at Runnymcde. The latter Charter is in- significant to the Prescriptive Consti- tution but the Feudal Lawyer has not so taught it. In th3 face of the gen- eralities of Magna Charta he has im- pressed his courts that they may enter judgments and decrees and orders without the authority of records; that there need be no record to bind a court. That there are no dicta, but that everything a court says carries with it a conclusive presumption of authority; tliat a judgment entrv TEXT-IA'DEX 109 Teudal Lawyer. — brings to it the necessary authority. This denies that Pleadings are juris- dictional. Gulling. ( Contra Vicks- Imrg v. Benson; Nalle v. Oyster; Knickerliocker. ) These three cases are opposed to the "Theory of the Case." See also Campbell i. Consalus ; Clark V. Dillon and Tooker; also Codes. 13. He denies that "Pleadings are the juridical means of investing a court with jurisdiction of a subject matter to adjudicate it." (See the Trilogy of Procedure, §§ 1—7, Restatement.) Common Counts. 14. He is a poor constructionist for he contends that more liberal rules of construction obtain at the stage of Col- lateral Attack than do on general demurrer, or at the stage of Appellate Procedure. (See Goldham. v. Ed- wards.) And next he will concede that strict rules of Res Adjudicata — that estoppels are odious and are strictly taken. This latter expression is only a paraphrase of Verba fortius. How Feudal literature handed down this maxim will appear from the dis- cussions over Clark v. Dillon in New York. Follow the citations of this case through the Restatement and the Antinonyms will be seen. ( See Codes. ) And the greatest of Code authors stumbled over Verba fortius: (See Pomeroy's Code Remedies, §§ 533, 546.) Webei- -y. Leicis, 34 L.R.A. (N.S.) 364^371, ext. n. citing Boweny. JEmmerson. It is the salient in the dis- cussions, the statutes of Amendments and Jeofails. This maxim has promi- nent mention in Sections 1-13, Re- statement. Feudal literature has not comprehendlbly presented it. Care- fully read the opinions of Justices jEyre and Buller, in Dovaston v. Payne. Also of Lord Kenyon, in Roberts ^ Moore. 15. That the rules of Construction fluc- tuate in tests for the coram judice proceeding in its various applications and tests to safeguard the attitude of the state. 16. That Codes and Practice Acts have abolished and swept away old princi- ples and have established a "new dis- pensation." 3 Am. Law School Re- view, 602-609. That at the sta^e of the general demurrer an individual- ized rule obtains {Baker v. Warner), while at the stage of the motion in Arrest or the motion Non obstante Kcredicto a diflferent rule attaches {Ooldham v. Edwards) ; while at the stage of Appellate Procedure a, far Feudal Lawyer. — more liberal rule attaches to uphold the pleading; Davis v. Jacksonville Line; while at the stage of Collateral Attack a still more liberal rule pre- vails to sustain the proceedings (3 Bouv. Die. Rawle's 3d Ed. 1914, title Pleading). But at the stage of Res Adjudicata a very strict rule is ap- plied to defeat the pleading if possi- ble; "Estoppels are odious and every intendment is against them." (See L. C. 25-30, 3 Gr. & Rud.) Dovaston V. Payne. In tests of Due Process of Law the Pleading is construed both strictly and liberally from step to step with whim or caprice the Universal, Constitutional canon Verba fortius is applied at the various stages (see Collateral Attack). 17. That the rules of Res Adjudicata are irrelative and are established to serve an individualized branch of the law. 18. That the rules and tests of Due Pro- cess of Law are individualistic in their application and that they do not in- clude the same logic and philosophy that governs the tests of Res Adjudi- cata. Garrett. That the elements of the Coram judice proceeding are not the same at all stages and times. He denies that these matters are interac- tions. That he treats all of the above matters as irrelative and that at one stage a pleading is held sufficient which would be held insufficient at an earlier stage. It is by such views that the general demurrer is waived. (See "Theory of the Case.") 19. That he does not understand the dis- tinctions between the two juridical records ( § 21, Restatement ) . Nor does he understand tha': primal rule of Procedure which is "What ought to be of record must be proved by record and by the right record." Fiunt enim. Sections 1-21, Restate- ment. 20. That distinctions between superior and inferior courts are lost in bewil- derment and mires of discussions. Crepps V. Durden, L. C. 113, 3 Gr. & Rud. and cases cited therewith; see also Green County Bonds. 21. That in relation to all of the above matters fundamental law can be de- nied or abolished. That "Parliament is omnipotent." See Ca/mpbell v. Con- salus and its cognate cases under the title Codes. 22. That the maxims of antiquity are "old" and "outworn" and that the re- affirmation of these is distinctively 110 THE LAW EESTATED Feudal lawyer. — "new" and "modern" law. (See §§ 1-13, Eestatement; also Equity.) 23. That there are no Universal princi- ples common to all systems of Proce- dure. See Codes; also §§ 1-13, Ee- statement; Quis quid; Garrett; 3 Am. Law School Review 602-609. 24. That for the presentation and the discussions of fundamental law "em- piricism" labelled as "Modern" and "New" and "enlightened" is most sought and respected by the lawyers of this generation. (See Story.) Elsewhere we refer to the lawyer's appetite for the outputs of the slums of quackery. (Bishop's New Criminal Law, pages vi, vii, Preface; see Litera- ture. ) 25. That the gifts of the Feudal Lawyer and of his followers have been nothing more than mystification (see 1 Gr. & Rud. § 15) and obscuration of great principles (see the Trilogy of Proce- dure, § 1, Restatement) and the glori- fication of Feudal authors as Deities and their times with all of their con- tradictions and narrowness, and pal- pable absurdities with consequent demoralization to the due administra- tion of the laws. (See how Black- stone, Glanvil, and the times of Ed- ward the I. are extolled; also what Tyler says of Stephen as if a great juridical scholar could be employed to frame a new system of Procedure; if Stephen had set out and dealt with the fundamental maxims he would on- ly have thought of paraphrasing these in any performance he would enlist in ; also Maine's Ancient Law. ) 26. That he has not placed the litera- ture of the law above and beyond th« attacks of empiricists, mountebanks, and errorists and their employers, the book factories who have flooded the land with digests, Cycs, gatherings of cases and of supposed educational mat- ter that have not and never can pre- sent the logic and the philosophy of the law (See Introductory Chapter; Picstatement also maxims ) . Look at the title Codes, Restatement and there- under the demonstration of the causes that have destroyed the Codes. (See Pomeroy; Story) also tl •; "Central ideas" of a Code in tlie maxims and then see if one Code author has under- stood them. Turn to the titles Camp- leU V. Consahis, Clark v. Dillon, Toolc- cr V. Arnoux, and Oakley v. Aspinwall, L. C. 222, 3 Gr. & Rud. and see glimpses of the Prescriptive Constitu- tion from varying angles. Follow cita- Feudal Lawyer. — tions to these cases and see the fact that there are limitations of the power of the parties to contract a Procedure unto themselves, also of Parliament to interfere with the necessities of judicial operations. Such being the fact see how the Feudal authors and their fol- lowers have dodged and straddled this question. Compare any sections they wrote with those which Story gave. Look at the jargon in relation to Jackson v. Pesked, which most all common law pleadings make promi- nent. Dovaston v. Payne. 27. That Feudal authors (see Litera- ture) do not reason centripetally but instead centrifugally by attempting to gather and establish the law by pick- ings roundabout in the periphery of the "central" ideas. They seek stat- utes, cases and decisions wherein courts manifestly tried to dispose of the case and decide nothing. Here let us ask which court has plainly stated the reasons why the general demurrer cannot be waived? Which one has so defined Pleadings as a, jurisdictional element that other courts can under- stand it? (See Gulling and its clus- ter.) And which one has impressively referred to the logic and philosophy of Procedure as broadly as it is done in the Introductory Chapter, Restate- ment? And do they not show a pref- erence for digests, Cycs from books and statutes that befog and bewilder? See Sergeant Williams' brief in Dovaston V. Payne. ( See Departure. ) Which court or author has so defined the state's attitude in Procedure that the limitations of Consensus tollit errorem are plain and traceable? And for this are there any better cases than Gamphell and its cognates above cited? See these cases cited and discr~,sed in relation to the title Codes. Now are these cases understood by the authors and courts? See citations to them in the Restatement. Which author or court has comprehendibly indicated that Alterum non hvderc was clearly perceived as the defense of the state's attitude in Procedure? And is not this maxim the gist of Oakley and Campbell supra? And is not Idem agens et patiens esse non potest a part of Alterum? Also In pari delicto. See citations to these maxims in the Restatement. Now why should not the mind fly to these maxims in legal reasoning instead of to ephemeral di- gests, Cycs, form books and Feudal cases which follow each other exactlv TEXT-IWDEX 111 Feudal lawyer. — as the errors of Sergeant Williams were caught up and parroted by Tidd, Chitty, Stephen and their followers? Feudal theories and teaching feeds up- on local and fiat ideas. They depend upon statutes and late cases, and the outgrowths of these digests and Cycs. 28. That the juridical anarchy prevail- ing in American states (See Gulling and its cluster of eases) too plainly point to the failure of the lawyer and of his establishments. Look at his literature and his teaching; also the fact that herefrom arises the judiciary that rules the country; that gives law to the Western Hemisphere. The Code came from Eoman roots (see Quia, quid, coram quo) ; it rested upon a Roman stump and should have been construed therefrom and not from Feudal conceptions, its general allega- tions, general denials and its aiders by verdicts (see Rushton) and its ex- plications of Equitable maxims (see Story ) . The time is overdue to plain- ly state the facts and to afford the means of enabling each to judge for himself. The way is open and plain for all who will look and consider. In the above speciiieations we cite great principles, maxims and cases. Now what has the Feudal literature done for any one of them? Turn to these matters and follow their cita- tions through the Restatement and the glories of the Roman law will break through the black cloud of the Feudal night — a long dreary night of more than one thousand years. It is from the Roman law that right impressions are given. Right impressions are most important for the mastery of great principles. This fact will be next illustrated. Bartnett v. Boston Store, 55 L.E.A. (N.S.) 460, will greatly instruct the student of the maxim In jure non re- mota quoted and most elaborately dis- cussed in Gilson, 36 A. S. 803-861, wherein are the greatest gathering of cases including the "Squib Case;" also Dixon V. Bell, 105 Eng. Reprint, 1023, 19 Eng. Eul. Cas. 26, 36 A. S. 814 (one employing a child to bring a firearm is liable for the injury it causes a third person) ; Carter v. Towne, 96 A. D. 682, 36 A. S. 814 (seller of gunpowder to a child is lia- ble for the injuries caused by use of the powder) ; stating the rule in the "Squib Case;" stating and following Dixon V. Bell. In Bartnett, the sale was to a fifteen year old boy in viola- Feudal lawyer. — tion of a city ordinance, who injured a third person by a clumsy use of the weapon. However the seller was held not liable. Dixon and Carter were cited in the Bartnett Case, also the principle in the "Squib Case;" but not fully and clearly. From the view point afforded by Volenti non fit in- juria, also a full and clear definition of negligence (Rodgers v. R. R., 10 L.E.A. (N.S.) 658, also the title Negli- gence in 4 Gr. & End. of law ; also the above cases there will arise con- flicting views. The Rodgers Case involved a phase of Actus Dei neminem facit injuriam, which attends tlie cases stated in 36 A. S. 803-861, also the principle in Fletcher v. Rylands, 2 Gr. & Eud. With the above cases and maxims in mind it seems a de- fensible rule to state that if one is connected with either a negligent or a criminal act which causes injury to another that then he is a joint tres- passer, and is liable as such (see Joint Trespassers ) . It was negligence in the Dixon and the Carter Cases and it was illegality in the Bartnett Case. One .cannot negligently sell toxics and dangerous instruments without in- curring liability. Thomas v. Winches- ter, 4 Gr. & Eud. All voluntarily con- nected with an illegal act causing loss or injury are liable {"Squib Case.") Laidlaic v. Sage, 44 L.E.A. 216. Looking at the Bartnett Case from full and accurate definitions and state- ment of rules from worthy cases, and the maxims, throwing light over the question is not the student far better qualified to deal with the gathering of cases in 36 A. S. 803-861? (See Negligence, 4 Gr. & Eud.; also Pbox- niATE Cause, Id.) Here let us ask, if the Feudal Law- yer has afforded the required data to judge of cases like Bartnett? Also if the maxims cited do not throw over the question as much light as do cases? What great principle has been settled by cases? What has 36 A. S. 803-861, settled? What leading principle of Procedure has been settled by eases? What is more unsettled than is Verba fortius? (See Clark v. Dillon and Dovaston v. Payne? Also Soott v. Shepherd. To support the above specifications we offer the following observations to lead the way of the investigation of the student. With the call for "Revolution" in Bar Associations we think that calling 112 THE LAW EESTATED Feudal lawyer. — attention to obvious facts will prove timely. An investigation will show that a tragedy has come to the juris- prudence of a great nation; and that it has brought with it a blight to the lawyer and his establishments. (See Codes; Literature.) As Shelley's Case has been discussed so have each of the above propositions, anent procedure, all of which radiate and circulate around the questions, — Is Parliament omnipotent? and 2, Are Pleadings jurisdictional; and are they of equal import and dignity as is j"urisdiction of the person and of a subject matter? (See Theory of the Case; Gulling.) The above questions are to-day ex- acting more attention than are the Shelley Cases, that the Federal court has given us in M'Culloch v. Maryland, L. C. 147, 3 Gr. & Rud.; Gibbons v. Ogden, 9 Wheat. 1 ; The Police Power Cases; The Legal Tender Cases; The License Cases and the Municipal Bond Cases (See Green County Bonds), and the records that are necessary to support a tax or an adjudication. (See 1 C. J. Cyc. 66, 100.) The Federal court has not been able to fix with certainty the limitations of the maxim Omnia prcesumuntur rite. However the proposition that pleadings are ju- risdictional can be picked out of some cases. Garrett; Nalle; Vicksburg (a quite clear and forceful' decision) . Nothing can be more important than what constitutes jurisdiction and how it shall be evinced — what documents and what record shall evince it. Ju- risdiction is the heart and vitals of "Due Process of Law." If it appeared that the court convened and sat and adjudicated iu the wrong jurisdiction, venue, as the court did in Milligans Case, 4 Gr. & R. must not notice be taken of that fact? (Nalle v. Oyster.) Or that the clerk or the sheriff con- sidered the case and ordered judgment instead of the judge? (Floumoy v. Jeffersonville, L. C. 146, 3 Gr. & Rud.) Or that the judge usurped the function of the jury and arbitrarily heard the case and disposed of it and ordered judgment? (Turney v. Barr, 4 Gr. & Rud.) Or that the judge was an interested party as in Oakley v. As- pinwalU If a court opens a record as in Nalle v. Oyster, then ought it not look without regard to objections, ex- ceptions and assignments of error? When and where do the interests of the state and its greatest of guaranties Feudal Lawyer. — "Due Process of Law" cease? (Wind- sor V. McVeigh.) Now do we not point to universal principles, essentials to protect with- out regard to any particular system, in any singular region? What is a, rec- ord and a court for except to protect from arbitrariness and its insidious ways? See Introductory Chapter, Re- statement. Jurisdiction; validity of judgrments founds title to property; pleadings involved- — The question of jurisdiction is the inquiry after the Coram judice pro- ceeding and often of course of the validity of deeds founded upon judi- cial and execution sales ( 1 Gr. & Rud. 124-134 ) . And the same ration- ale extends to inquiries into the found- ations of administration of estates, also tax sales, also municipal bonds For all of the above matters the state provides for and demands a rec- ord (Sees. 83-123, 1 Gr. & Rud.) and requires that this record be construed by the greatest rule of evidence which is that "What ought to be of record must be proved by record and by the right record." This is the state's record and is mandatory and peremp- tory and must be respected for and on account of the state, the mandates of which cannot be waived by the parties to the record. And to every attempt to waive this record the state in ef- fect says A Iterum non losdere. Res inter alios acta. The above rule arises from the Trilogy of Procedure else- where introduced and explained as or- ganic principles and among the first in importance in a Constitutionalism. (See Garrett.) That record is a bul- wark against the possible establish- ment of a judicial hierarchy and its in- sidious ways of tyranny and oppres- sion. Herefrom the Constitutional character of Pleadings will appear. Every work on Evidence or of Pleading might well and clearly in- troduce the above rule and its cog- nates above mentioned. It is hinted at by Story and also in Nalle v. Oyster (1913) ; also in Windsor v. McVeigh L. C. 1, 3 Gr. & Rud. The failure to sufficiently impress the above matters left the way open for the "theory-of- the-case" doctrine and tlie discussions over the rules involved in Clark v. Dillon and in Gulling v. Bank. Else- where we cite and discuss these cases and indicate the Antinomian laws respecting them. But Tidd, Chitty, TEXT-INDEX 113 Feudal lawyer. — Stephen and' the Code and Practice Act authors' have not so written and cleared their subjects as to lead away from the bewilderment and what has come to be called the "legal jungle." Shelley's Case was discussed through cejituries and until both legislatures and courts revolted. Likewise Ameri- can courts are rambling and trying to define "Due Process of Law;" from some cause they are receptive to the idea that something new has come and that what that is will be decided in a nearby case. As Kent saw and spoke of Shelley's Case so some judge will look and speak of the American "Due Process of Law" and at last set the profession at rest as to what that phrase means. Kent's apostrophe to the departing glories of Shelley's Case is perh.aps the most eloquent juridical passage (see Shelley's Case, 4 Gr. & Eud.). while the "Manner of the Romans" and Story's sections which we so often quote are the most useful for the guid- ance and exercise of judicial power. It involves jurisdiction which is al- ways of Constitutional significance. As Kent ended the muddle referred to, so some judge ought to end the bewil- derment of "Due Process of Law." This depends upon organic law and the American has not and certainly cannot create any new principle of substance — no organic law difl'ering from that of Rome and of England and the great principles and cases intro- duced in the Restatement referred to. Minimizing the state's rules and magnifying the "omnipotency of Par- liament" have bred consequences that is at last attracting attention from Patrician and Proletariat alike. The attitude of the state is lost and un- known to him who accepts the view that "Parliament is omnipotent." Those propositions are antagonisms and have made way for the warring theories and sects of lawyers. One of these reasons from logic and philoso- phy and the other from a statute. Of course all statutes make disturbances for generations afterward. Look at the statute giving the bill of exceptions (Statutory Record) ; the Statute of Frauds and of Limitations and of Amendments and of Jeofails and from all of these can be seen long and end- less struggle over the construction of these statutes, every line of which, yea; every word of them has called forth a dozen Shelley Cases. Feudal Lawyer. — And so it is with the Code. The Fields saw and construed it one way and Charles O'Connor saw and con- strued it in an opposite way. And so it is with all Codes. To indicate the importance of ju- risdiction we will observe that the question often arises as to whether or not the purchaser at the judicial sale must open the Pleadings and judge of their sufficiency as they would be tested upon general demurrer and upon Collateral Attack. In other words does jurisdiction of the person and of the subject matter limit the extent of diligence — Caveat emp- tor — Ignorantia legis neminem ex- cusatf Now look and see how the "theory-of-the-case" lawyers have treated this question. (See Windsor V. McVeigh, L. C. 1 et seq. 3 Gr. & Rud.; Hohack v. Miller [W. Va.] ; Nalla I'. Oyster.) Knicherhocher. In other words the leading question is: Do the rules of the general de- murrer mean what they say, that is that the general demurrer is never waived. If these rules have excep- tions then should not the great expos- itors have mentioned and have stat- ed and have defined those exceptions? Now could they do that and at the same time exclude essential Pleadings as a jurisdictional element? Here- from consider the 28 propositions above stated. How these have been discussed and taught may be judged from the review of the authorities we make in other relations. The jargon over the "Theory of the Case" also of Yerha fortius is far more perplexing than the discussions of Shelley's Case'. The author who fills his lids with discussions of that case and of non- sense about the "omnipotency of Par- liament" and that a "record is a ver- ity" and invxilnerable to attacks for fraud, or objections upon Collater- al Attack has made no worthy gift to a Constitutionalism. Whoever dodges or avoids or straddles the 28 propositions above enumerated makes no vindication of the logic and of the philosophy of the law. The philosophy of the law has never been comprehended by the Feudal Law- yer and his followers, the modern "Scribes and Pharisees," and the local and fiat schools of "native sons" its Cokes and its Blackstones referred to in other relations. (See Literature.) 114 THE LAW EESTATED Feudal Lawyer. — To support these conclusions we have cited and quoted those who have not discerned the "star;" "sextant" and "compass," and consequently hail and acclaim every new statute and case as a "new dispensation" and add- ing a "new" principle to the law which when rightly interpreted will enable "every man to be his own la^vyer." (See Bailes' Code Pleading and Prac- tice, 1-4.) Quotations we make point to the causes of the Babel and its "legal jungle" ( see Story ) . That the attacks upon our jurisprudence by commercialism and its force has en- trenched itself into state power in some quarters which by legislation 'and the influences of a blind judiciary have been led to disregard the pro- tection that is guaranteed by the Pre- scriptive Constitution from judicial records and also that rule that re- quires a court to be bound by its record. (See Theory of the Case; also §§ 1-21, Restatement.) From all of these evil forces Pleadings have been excluded as a jurisdictional element in many of the states. Whether or- not Pleadings are opened and looked to on Collateral Attack is one of the lead- ing questions of the day. ( See Codes. ) The forces above referred to have sought to enlarge the maxim Omnia prmsumuntur rite and to drive it as a wedge into the logic and philosophy of the law (see Introductory Chapter, Restatement), into the substance, the bulwarks of protection — the manda- tory record by legislation and trans- cendent Construction. See how the general demurrer has come to be waived {Gulling; Story; Rush-ton), also that at the stage of Collateral At- tack only two questions may be raised in many quarters; also the attacks upon the necessities of Res Adjudicata, also the law of Taxation {Grepps v. Durden, L. C. 113, et seq., 3 6r. & Eud. ) ; also Municipal Bonds ( Green County Cases ) , that fraudulent bonds will be aided by an application of the maxim last cited notwithstanding that the record shows to the contrary — the record from which the bond emanates. {Green County Bonds.) As has been observed by great judges, that a power that can be abused is sooner or later certain to be abused. The bulwarks of protection are not statutes and cases but they are the higher law^ — the Prescriptive Constitution (2 Kent, 8, 12). The Restatement shows that the law arises Feudal Lawyer. — from old and archaic"* principles and these must ever be respected in a land of law and freedom. Writings and teachings that have given a great empire judicial anarchy instead of due process of law, and have dismembered the logic and the phil- osophy of the law is an ominous cloud in the horizon threatening a more perfect union, the ways of com- merce and the necessities of progress and the establishment of justice, should now and at last be interdicted by a restoration of Justinian's Edict for the protection of the lawyer and his establishments. The law student is a necessity if we would have law- yers and courts. The student must not only have good oral instruction but he must have good literature be- sides (look at the condition of the Code establishments: also its litera- ture. See Story; Rushton; Litera- ture ) . When leading members of the legal profession proclaim in Bar As- sociations that the trend of legal edu- cation is to make of the profession a nuisance and a menace to society it is time for those who address the stu- dent to suggest the dangers that con- front him. It is overdue to submit to the law- yer if the time has not gone past when he should take an inventory of his consistency, his congruity and of his logic and philosophy. He upholds Story on the one hand and a promi- nent author on the other hand. Look at § 10, Story's Equity Pleading (47 Hughes' Equity) and §§ 2310, 2311, Thompson's Trials on the other hand. At this time it seems that more schools are teaching Thompson than Story. It is claimed that all can un- derstand Thompson. Here let us ask if we can turn to Blackstone, Tidd, Chitty, Stephen, Gould or Pomeroy and their followers and determine which is right. Story or Tliompson. The smart young graduate hurries to tell you that Story is out of date and that a "new dispensation" has come, and grabs Baker v. Warner, 232 U. S. 588, 593 and reads to us. Vainly we ap- peal to Goldham v. Edwards (Eng.), for we are told that it is an old Eng- lish case and that the general de- murrer can be waived and that when we change its name to Motion in Ar- rest or A'om ohstante veredicto we change the rules that govern the gen- eral demurrer and that thus it has come to pass that the general de- TEXT-I2vTDEX 115 Feudal lawyer. — murrer can be waived. On every hand we are told that Story is out of date and that he is superseded by Thomp- son and his up-to-date theories. Vain- ly we appeal to the correctness of the dissenting opinion in Gulling v. Bank, 29 Nev. 266, and the correctness of the lower court in Henry, 49 L.R.A. (N.S.) 1-44; also the fact that Illi- nois has faithfully and devotedly fol- lowed the prominent authorities above mentioned and as a consequence has come to hold that the rules of con- struction are more liberal at the stage of Collateral Attack than at the stage of the general demurrer. Here let us ask if Illinois decisions are anything more than hedge podge at least so far as the general demurrer is concerned. The sentiment that fostered the Chi- cago Municipal Court Act found a footing in Illinois cases. But it is due to say that Story was returned to in Walter, 250 111. 420 (a cause of action must appear from the right record and not from affidavits and oral claims and forensic conduct ) . This case reaffirmed Campbell v. Con- salus, a Code case of New York. Al- so Mondel v. Steel, L. C. 77, 3 Gr. & Rud. cited and approved in Milhra, 45 L.R.A.(N.S.) 274, 277, 278. Now here let us observe that Walter, Camp- hell, Mondel, and Milhra, are all Code cases and most worthy. The prin- ciples they illustrate are among the greatest of Procedure. Thej' reaffirm the Trilogy of Procedure which we shall express and seek to impress — the "Manner of the Romans" as Festus defined this in Saint Paul's Trial. Feudalism has not stated and de- fended the great principles above hint- ed for it could not and at the same time contend and teach that "Parlia- ment is omnipotent." Caprice and whim must be made way for in Feu- dal establishments. The occupant must keep the "horn" or lose his land (Pusey) . It steadfastly refused to acknowledge the supremacy of the higher law — the Prescriptive Consti- tution. (See In Prcesentia majoris cessat potentia minoris.) Universal, Constitutional principles are not the genius of Feudalism but on the con- trary its tenets were that "Parlia- ment is omnipotent," that the law is local and fiat and comes from the little capital of each tribe or province — of each feudatory. See Equity, Litera- ture. Feudal Lawyer. — "When its philosophy is lost the law is lost." Melius est petere fontes quarn sec- tari rivulos. As the Rhine has made its bed with the silt of ages from Denmark to Belgium and cuts for itself a new channel from day to day so Feudalism has obstructed the channels of legal philosophy with its silt of judicial decisions not founded on legal philos- ophy, not even consistency or con- gruity. See how it treats the general demurrer and its correlatives to and including Collateral Attack, Res Ad- judicata and "Due Process of Law." All of these matters are treated and presented in an irrelative way. And the rules relating to the attitude of the state are changed from case to case in the same volume. Look at Ran- som V. Williams, 2 Wall. 313, and Harvey v. Tyler, Id. 328; L. C. 122, 123, 3 Gr. & Rud.; also 8 Colo. App. 38, 40 and Id. 285, 288; Cramp, 2" Mo. 254, and Carson, Id. 265, Hughes' Equity 463-480 (Conflicting rules as to pleading a contract ) . The rules of certainty are dictated by Res Adjudicata and "Due Process of Law," not from arbitrary statutes and decisions. Now why did not Feudal authors perceive the fact? Look at the conflict in New York over Verba fortius: {Clark v. Dillon stated in Bradbury's Rules of Plead- ing, 9-16; 1554^1570; 50 L.R.A. (N.S.) 1-32, running all through these pages and its rule stated at page 32, Verba fortius: Antisdel v. R. R. 26 Wis. 145, 7 A. R. 44, stated and approved Pom. Rem. 533, but de- nied in 546. It reaffirms Doraston r. Payne, L. C. 217, 3 Gr. & Rud. Tliat maxim is the burden of Clarl:, Antis- del, Dovaston and C. & A. R. R. v. Clausen [111.] ; its fullest exposition is found in Equity In Procedure, §§ 163-189). Who can name a greater, universal and constitutional canon than this maxim? Now why should Feudalism mire and flounder with it from gen- eration to generation and for each de- cade get up a new cluster of cases for each tribe or feudatory? And this is exactly what it does. The contention that "Parliament is omnipotent" is completely overthrown by a right comprehension of this max- im and its cognates in the rules of Res Adjudicata. Vicksburg r. Ilrnson. Fix this maxim in the mind and 116 THE LAW RESTATED Feudal lawyer. — then read Pomeroy's Remedies, §§ 506- 608, also Bradbury and 50 L.R.A. (N.o.) 1-32, and the marsh above re- ferred to will appear. Relating to it is fog and cloud, the drudge in the treadmill hunting through digests and Cycs and pages culled from these for a case or a statute. Such elabora- tions are pervaded with the idea that the canon is a question of local and fiat law. Pom. Rem. 546. And most all follow him; most all prefer his ramble in the jungle without regard to the great trees of the grove. The only beacon sought is a, statute and a case. Clark and its cognates are more often disregarded than respected. Clark V. West, 193 N. Y. 349; Baily V. Bornthal, 154 N. Y. 658, 61 A. S. 643 — (a decree rested on irrelevant evidence as in Gulling and in Henry, 49 L.R.A.(N.S.) 1-44. Here are a gathering of the real kind of "Theory- of-the-case" discussions advocated by Thompson. These should have been cited in 50 L.R.A. for they belong to that gathering of cases. They are in contrast to Kewaune County v. Deck- er, L. C. 30, 3 Gr. & Rud. cited at pages 10, 31, 50 L.R.A. supra. From the Trilogy of Procedure this definition of Pleading is deduced: "Pleadings are the juridical means of investing a court with jurisdiction of a subject matter to adjudicate it." And so it is that Pleadings are juris- dictional. Nalle V. Oyster; Vicks- hurg V. Benson: Milhra; Palmer v. Eumiston, 45 L.R.A. (N.S.) 640. The "Theory of the Case" broadly and boldly introduced by Thompson is at war with Story, the Trilogy of Procedure, and the cases last cited. Now why should these fundamentally opposite authors be carried along and be cited and treated as homogeneous — in harmony and as most worthy? One or the other ought to be rejected. And in any full rSsumg their differences ought to be noticed; justice to students and courts demands that they be fairly presented. For a full generation Thompson was accepted as one of the foremost jurists and authors. In other relations we observe of the viti- ated notions and tastes of the legal profession. From the above facts judgment' can be formed. The Feudal law}'er attached great learning and consequences to his forms of action; his aider by verdict; his "defective title and his title defective- ly stated" (see Rushton, 53 L.R.A. Feudal Lawyer. — (N.S.) 120, 126, 127) ; his hoes; his general issue and his general denial; and his irrelative theories of Equity and of law; and his ir- relative treatment of the general demurrer and of its correlatives; his waiver of stiistance ; . and of the general demurrer and of his statutes of Amendments and Jeo- fails; his common counts; and of course of his notion that "Parliament is omnipotent," and that it can cre- ate distinction and irrelative sys- tems without regard to fundamentals. All of the above matters are chiefly vagaries. In other relations we give them due attention. The Feudal in- tellect was not and could not be a great lawyer. Which one ever any- where explained why the general de- murrer cannot be waived. (See Al- terum.) Which one introduced and explained the Trilogy of Procedure! Look at the treatment of Veria for- tius already introduced. Had he ex- plained one of these maxims prop- erly it is doubtful if the profession could have been submerged with the outputs of book factories and em- piricism. They would have never be- lieved that Pleadings can be dispensed with in a Constitutionalism. Now his followers have introduced a euphemism that they call the "Theory of the Case." To support this vagary there can be picked eight kinds of Aider from the various jurisdictions. Sever- al of these can be picked from the 50 L.R.A. (N.S.) 1-32; to illustrate: that an answer may supply an omit- ted allegation in the statement (see Florida Co. 176 U. S. 328, 329; Quod ah initio) or the reply; also the evi- dence. The full blown species is that a case is not presented by the Plead- ings but by the evidence — not by the allegata but by the probata. That the Pleadings are nothing more than scraps of useless paper to haggle over and to be blown around or away like dust by every wind of doctrine. To support these statements we cite and reply upon 2 Thompson Trials, 2310, 2311, quoted under Variance, 4 Gr. & Rud.; also G-ulling v. Bank, 29 Nev. 266-280; Henry v. Hilliard, — N. C. — , 49 L.R.A. (N.S.) 1-44; Merchant Co. — Okla. — . 42 L.R.A.(N.S.) 996, 998; 6 Encyc. PI. & Prac. 468-470 ( departures can be waived ) . The authorities last cited support the view that irrelevant evidence may supply a bill — a statement of the TEXT-IiqDEX 117 Feudal Lawyer. — "cause of action.'' This is plainly held in Gulling also in Henry. That as- suming a case presented, or a defense presented will supply the Pleading omitted. Also an issue. Garland v. S. 232 U. S. 640. Cases like these deny the Trilogy of Procedure and its cognate maxims. No greater bul- warks of protection can be named than these maxims — there are no greater principles of protection than are these maxims and what they call for and dictate — the mandatory record. See Windsor v. McVeigh, L. C. 1, 3 Gr. & Rud.; Mondel v. Steel, L. C. 77, et seq., 3 Gr. & Eud. We learn on the one hand that the general demurrer cannot be waived, Cockerell; and on the other hand that it can be, Henry; in other words that a departure can be waived. That Prustra is not the law. 6 Encyc. PI. & Prac. 468-470. Where and when did a Feudal law- yer or his ' followers so define the Mandatory that it could be compre- hended and distinguished from the Statutory record? Courts say they cannot teach the bar the distinctions. Pennowfsky v. Goerver, 205 Mo. 135. Now the trouble is that the courts teach every thing in every way from every angle for everybody relating to these records except that they are gov- erned by the Trilogy of Procedure. Thompson was a judge in Missouri and see what he advocated. Could he understand a case lilce Xalle v. Oys- ter? Or that the general demurrer cannot be waived? Are not cases like Gulling and Henry and Weber r. Leiois, 34 L.R.A.{N.S.) 364, and Merchants Co., and manv of those cited in the notes 50 l!r.A.(N.S.) such as support Thompson? If a case arises from the evidence and not from the allegata then must not we often prove the case orally? (See Mohdel V. Steel, L. C. 77, 3 Gr. & Eud.; Milbra, 45 L.R.A.{N.S.) 274, 277- 278, citing and following Mondel.) Now how can the "Theory of the Case" be discussed and all of the above mat- ters be omitted? If a statement shows it is founded on an In pari: cause of action then no jurisdiction attaches. But now we are informed that if only judgment is entered that then the fatal defect is cured? This is good Thompson doctrine because according to him Pleadings are not jurisdiction- al. McKee v.Verner, ii'L.'R.A.CS.B.) 727: Oases. And we are told that the Feudal lawyer. — general demurrer can be legislated out by a statute providing that all errors not raised by a motion in Arrest are waived. Id. Here is genuine "theory- of-the-case" doctrine. It is a disap- pointment to see that doctrine at last caught up and discussed and all of the above matters omitted. Phases of these matters were hazily touched in 50 L.R.A. but neither top, bottom nor sides of the Juggernaut in Procedure was plainly stated and likewise re- ferred to: Weber, is given on the one hand and on the other hand it ia de- nied, 50 L.R.A. 21 (a consideration, al- so a promise, must be averred to pre- sent a contract ) . Bacon against Coke, Mansfield and Story against Thompson, The Trilogy of Procedure on the one hand and the "new" and modern school on the other hand are as widely apart as the antip- odes. Of the latter are Smith and Clark, § 3, Restatement. The former wrote his Elementary Law in 1896, and the latter his, in 1908. Each of them explicated the maxim "Equity regards that as done which ought to he done." Each made this maxim a part of the "Theory of the Case," and thus: That the vendee seelcing spe- cific performance of a contract for the sale of land need not aver that he either paid or tendered the purchase price as either of these facts will be presumed by an application of that maxim. So payment need no longer be pleaded according to the "new" school. Omnia prcesumuntur rite is thus made a most useful rule of Pleading. The law of Lester v. Fox- croft, L. C. 341, 3 Gr. & Eud. is no longer the law. In the same kind of a suit, Halligan, 49 L.R.A. (N.S.) 112- 120 the taking of the possession is a leading equity and must be alleged and proved with great strictness. But Lester and Halliqan are denied in ifem)-j/, 49 L.E.A.(N.S.) 1-44. In this case it wa.=i held that failing to plead to a fatally bad bill cured it; also the admission of irrelevant evidence. Frustra prohatur quod probatum non rclcrat was denied; also Verba fortiits. Indeed all of the Trilogy of Procedure was denied in Henry as it was in Gulling. There are important phases of the "Theory of the Case" omitted in the extended discussion of it in 50 L.R.A.(N.S.) 1-32. ^ Cockerell, 81 Ks. 335, 50 L.R.A. (N.S.) 1-32, ia not a most instructive case for it only involved a shadowy 118 THE LAW EESTATED Feudal Lawyer. — phase of variance. It found a new terminology for Ut res magis valeat, quam pereat by calling it "Theory of the Case." In 42 L.R.A.{N.S.) 998, Kansas cases are cited showing that departures are allowed in that state. These are the broader, deeper phases of the euphemism wherefrom the ju- risdictional defects of the doctrine are exposed. Why the learned annotator swept back over the reports from the 92 to the 81 is not apparent. He might well have chosen later cases in the later reports and such as Brumbaugh, 82 Ks. 56, or Duphome, Id. 159. These present stronger phases of the matter than does Cockerell. This case does not mention "Theory of the Case." It was correctly decided in reference to a class of cases that involve both con- tract and tort ; like Langridge v. Levy, Thomas v. Winchester and Pasley v. FreertMn, L. C. 375, 3 Gr. & Rud.; or where a passenger is injured by the carrier's negligence. On this perfect- ly sound stump, on another kind of a question, an exotic was grafted in an extended way. In Henry which was a "Theory of the Case" in the most fla- grant character another exotic was grafted (pleading the statute of frauds). Henry did not call for a plea; it stated no "Cause of Action" as is required in Cockerell. The Code re- quires that a "Cause of Action" be stated. The Trilogy of Procedure re- quires it and the Code reaffirmed the maxim — Qvis, quid, coram quo. But Henry is offensive and viciously so to both the old and the "new" law — the Code. It did not state a, "Cause of Action." It called for no plea. There was nothing to plead to. It would be error to cite Henry to the points that it is annotated upon. No lawyer would cite it when his attention was called to its character. It is as bad as Gul- ling. It is not apropos to the question when must the statute of frauds be pleaded. We can cite the notes to that point but not Henry. But it is "The- ory-of-the-case" doctrine. It ought be cited in relation to that on all occa- sions. See Theory of the Case, 4 Gr & Rud.; also in Equity In Procedure; also AUerum, ante. To please the demands of the age and to feed the prejudice of the Feudal lawyer Blark.stone (§ 15, 1 Gr. & Rud. Maine's Ancient Law, Preface XIX.), Tidd, Chitty, Stephen, Gould, Pomeroy and tlieir followers wrote their works. Kot one of them ex- Feudal Lawyer. — pressed the logic and the philosophy of the law; they did not cite and ex- plain one of the major or organic maxims of Procedure. Now there are these maxims and why did not they cite them? This would hav* been enough to arouse inquiry and investi- gation. And these would have led to the essential truths. The Code para- phrased the Trilogy of Procedure. Quis, quid, coram gjto can be seen in the leading Code provision. Cockerell, 50 L.R.A. (N.S.) 1. To have pointed out such facts would have put to rout the views of Judge Grier, and Charles O'Connor quoted in Tyler's Preface to Stephen's Pleading. The judge spoke and O'Connor spoke and condemned and this pointed the way to the bewilderment. All then straddled as did Blaekstonc, and the others. Sergeant Williams had said that sub- stance could be waived and then they all said so. This is the basis of the "Theory of the Case." (See Story; Rushton; Williams.) Get the Trilogy of Procedure in mind and in its light read §§ 506-608, Pom Rem. and herefrom judge if he understood the fundamentals. (See Pomeroy. ) And the profession has preferred the Feudal, its local and fiat laws, its em- pirics, mountebanks and the clamor and hurrah of commercialism. Gen- erally It thinks better of Coke, Pome- roy and Thompson than it does of Ba- con, Mansfield and Story. See how Professor Tyler relished and inclined to Judge Grier and the indefensible at- tacks of O'Connor. And this is the way the Code has been introduced and taught. (3 Am. Law School Review, 602-609.) Really a protecting gov- ernment should have shielded the stu- dent; anyway have told him there was fundamental law. ' Did any one of these Feudals know the Trilogy of Procedure and its cog- nates? Let the student look at Quis, quid, coram quo, and then see it in the Code (Cockerell) , and see how his vi- sion is broadened. But note that all the Code writings are pervaded with the notion that it is a new creation. And this is what has destroyed it. The notes in 50 L.R.A. (N.S.) assume that it is new, peculiar and distinctive. And so the Cycs assume (31 Cyc. 1-778.) (See Chitty.) All prefer to follow Pomeroy (See Par. 2 of his Preface, 1876; also his §§ 75, 509-514, 533, 546, 592, et seq.). Herefrom it will be ap- TEXT-INDEX 119 Feudal lawyer. — parent that he straddled and generally inclined to the Feudal theories. Cockerell is much like the "Squib Case," the first Code ease and to which Blackstone dissented. One may plead his facts. Whitney, L. C. 112, 3 Gr. & Eud. A statement of Coggs v. Ber- nard, L. C. 350, 3 Gr. & Rud. might be either contract or tort. The Contract sounding in tort and vice versa makes no difference where the procedure is identically the same. Ubi eadem ratio ibi idem jus. Why should so much space be given to a distinction without a difference? We call on the smart young gradu- ate with the old lawyer who has his story, and Greenleaf and Smith's Lead- ing Cases and observe that they have much useful matter. Generally the response is hurried that they are no longer cited in his courts. Then we ask for those most preferred and he points to Digests, Cycs, Brief Making, Smith's and Clark's Elementary Law and Thompson above referred to. To support these he quotes Warner v. Baker; Clark v. West, and several late cases impugning Kewaune County v. Decker, L. C. 30, 3 Gr. & Eud. quoted pp. 10, 31, 50 L.E.A.(N.S.) It is futile to observe of Smith and Clark and the supposed "new" matter he is so con- versant with. And from the 50 L.R.A. (N.S.) he can pick much to sustain his views. Joshua with his horn might blow down the walls of Jericho but he would certainly blow vainly against the in- trenchments of Feudalism in its last great stronghold — the lawyer, his ju- diciary and establishments. And at last he is told by the leading orators in Bar Associations that it is too late to talk reform that "Eevolution is called for." To prove the stupidity, indifference and prejudice of the legal profession we have only to look at the origin, genesis and development of the "Theory of the Case." Look at Gull- ing, and Henry above cited. To sum up : The Theory of the Case" is more than a shadowy rule of liberal construction as in Cockerell. Its genius is to break down and smother the Mandatory Eecord with matter that helongs to the Statutory Eecord. Thus it is aimed at the attitude of the state in procedure (See Alteram; Manda- tory Record.) It has no respect in- deed it denies the rules of the general demurrer; for its theories are that more liberal rules attend at the stage of tlie motion in Arrest and on Col- Feudal Lawyer. — lateral Attack, than applies on general demurrer. And then at the stage of -Res Adjudicata and tests of "Due Proc- ess of Law" strict rules are applied. It has made the law of the general de- murrer and its correlatives chaotic — a twisted, gnarled mass of perversions and distortions that are nothing more than the wreck of principles and the climax of absurdities. It denies the Trilogy of Procedure {De non appar- entibus; Frustra probatur; and Verba fortius; also their cognates a principal one of which is Quis, quid, coram quo; which the Codes very plainly reaffirm and which fact no Code authority has pointed out. To do so would dispel the illusion that the Code created new rules of substance — did something more than paraphrase the Trilogy of Procedure. It denies the rule that there shall be no departure; also the rule that "What ought to be of record must be proved by record and by the right record" (Equity in Procedure 218-231), where this rule is introduced and discussed — it is quoted and learn- edly applied in Milbra — Ala. — , 45 L.R.A. (N.S.) 274,277,278. This rule arises from Fiunt enim, and Contra scriptum. It is an important phase of the Best Evidence — the Oral Evi- dence Eule. (See Oral Evidence, 4 Gr. & Eud. ) Milbra and Palmer v. Humis- ton, 46 L.E.A. are the law ; also Martin V. Evans, 36 L.E.A. 218 (dicta of courts do not bind ) . L.E.A. is full of cases that cannot be reconciled with the strange graft upon Cockerell. There- in is stated the liberal canons of Con- struction — Consensus; Omnia prcesu- muntur rite, and Ut res; that on gen- eral demurrer a pleading will be saved if possible. Now, if so, how can the construction be more liberal there- after? In 50 L.E.A. (N.S.) 1-32; Rush- ton, Bristovy, Dovaston and Mondel are all upheld. These are L. C. 5, 135, 217, and 77 all in 3 Gr. & Eud., where am- plification and cognate cases are found. These are all excellent Code cases and are reaffirmed in Campbell v. Gonsalus, Clark V. Dillon and Tooker v. Arnoux; also Knickerbocker, 201 N. Y. 389. The latter case is like Mondel and Vicksburg v. Henson ( Verba generalia restringuntur : — general allegations are restrained by specific, notes, to Cockerell ) . To cite the secondary re- ports of New York on these points seems unfortunate for so many lawyers have turned away from them; and the confusion in Indiana is no better. One 120 TH±; LAW EESTATED Feudal LavTyer. — may study these reports for a month and he will gain no real information. Only a few cases in New York and In- diana can be cited to sustain the Trilogy of Procedure as does Camp- bell and its cognates. The Feudal lawyer did not under- stand Res Adjudicata. See the hag- gles over it in Kingston's Case, L. C. 76, 3 Gr. & Eud. ; nor has he showed the way to plead it (L. C. 25-30, 3 Gr. & Eud.). He has nowhere shown that he sees Interest reipuhlicce as a part of Alterum, and how these prin- ciples dictate causes like Campbell v. Consalus (Parties cannot stipulate to dispense with the pleadings) ; nor how they demand and dictate the rules of the general demurrer and its correla- tives. Look at the wreckage at the stage of Collateral Attack, and around Res Adjudicata. The principle in Grepps V. Durden is as much unsettled to-day as it was a century ago. ( L. 0. 113-130, 3 Or. & Eud.) He and his followers are in the same old ruts, try- ing to straddle, as they wallow along, every great principle of Procedure. The student asks for bread and he is given a stone; and he is strangled and smothered like the victims in the Laocoon. See Literature. Multitudo imperitorem perdit cu- riam. FINDING THE LAW: This performance greatly depends upon the intellect. To illustrate: Suppose we are in a vast botanical garden wherein is found the flora of earth. Most all of this was discovered, studied and classified and given a nomenclature by antiquity. Now what have we to gain by renounc- ing the efforts of the Ancients — the greatest of teachers and insist upon new names and a new classification? If the oaks, the pines, the maples and all the fruits and nuts and grasses were gathered and named in Asia and ai'ound the Mediterranean, why should we renounce the work of the ancients and their cosmopolitan efforts and em- brace only the efforts of some petty province or capital? And what should we think of a botanist who taught that the root had no relation to the stump, or trunk or the hcartwood or the limbs and branch- es, or the late sprouts of the stems, the leaves and the "late buds." That the same sap does not course through- out all parts of the plant? That all that should be sought or studied is the "late bud" or the leaf that had grown Finding the Law. — in a particular province? Could a botanist who would deny the rela- tions of the root to the late bud com- mand the respect of any scientific or reasoning intellect? It appears to be the exclusive glory of the legal profession to have the keenest appetite and relish for jokes upon their intelligence and their courts, their literature and their schools. From the slums of quackery most everything has come to the lawyer and his establishments and he embraces all, if only it is laid before him with the clamor and hurrah of commercialism and its advertising methods that are nothing more than the fullest utilization of the liar's op- portunity. { See Unfair Trade. ) Their ways and outputs would have been en- joined and punished by Justinian. But in this age commercialism has been al- lowed to fatten and flourish by be- clouding the law and submerging the lawyer and his establishments with empiricism and quackery. The facts are widely abroad and the call for "Eevolution" is timely. Anent Vicks- burg V. Benson observations are made that should be read in this connection. See also Case System. Whoever knows the familiar maxims and the old cases illustrating the ap- plication of these maxims knows the roots and the heartwood of the law, and he will not turn away from Broom's Maxims, Smith's and White and Tudor's leading cases. Story's Greenleaf's Evidence and Bishop's Books for the late bud theories, and the acclaim for Digests and Cycs and for the "new" and the "modern" school and its famous works on "Ele- mentary Law" in the outputs referred to. He prefers to seek tlie root and the reason and secure this as easily and as directly as possible, and to work from the root to the "late bud." He will not be content with the latter alone; he will not be satisfied with the theory of the "late-case" advocates. See Literature. The old lawyer sought the maxims or leading case on the subject he was considering and with these in hand he regarded his work as more than half done. If a dog case was wanted he would think of Animals, and the lia- bility for keeping ferocious animals or of keeping a nuisance. And so he would look into a work on tort or damages and would herefrom be led to Uay v. Burdett (Eng.) and to its annotations TEXT-INDEX 121 Finding the law. — by able specialists wherein the law of all animals would be ably resumed and impressively stated. Herefrom he could find all the dog cases he wanted; also the law of the scienter which is so important to the pleader. (See Yan Leuven v. Lyke, L. C. 14, 3 Gr. & Rud. ) So from the monkey case or the hog or the cow case the law of the dog cases could be perceived. What is wanted is May v. Burdett and where it is annotated. This information can- not be learned from local and pro- vincial Digests in America since The Key Number ease is an English cas^. So we see that what is needed is a true "Key number case and the an- notations of this which is more compre- hensive and impressive than is the vast Digest and Cyc gatherings of cases that smother such cases as May and lead away from the works that most ably discuss it. Substituting some local and provincial case for May makes against the deeper, most con- densed and the broader way. A plan of leading the student di- rectly from the Subject he is consider- ing to the maxims or the case illustrat- ing that subject is founded on a true conception of the importance of know- ing the root and the trunk. The Eng- lish student understands this better than does the American. The former has long had his Mews' English case law attended with its table of cases. And with that truly excellent Digest before him he could not be duped by the efforts of commercialism to con- vince him that another Digest on the same plan was something "new." A Table of Cases is an old idea that com- mercialism bitterly assailed in the last generation as a "useless pad;" and next it heralds it as something "new" — a "new and progressive addition." And the works that commercialism hawks off on the student, evidently omit all reference to such a digest as Mews'. (See page 46, 1 Hughes Proe. [1905]). Volumes supposed to teach the student "how to use law books" omit Mews, Digest and all ref- erence to it. Tables of abbreviations proclaimed and sold as the "student friend and guide" omit all reference to many current and valuable works, — to works that the well educated stu- dent should know of. ( See Literature. ) And such is the manifest effort to mislead and to injure, paralleling the claims for and the presentation of a "key number system" that omits Finding the Law. — all English eases and the maxims and without any reference what- ever to those factors and of the orig- inal etTorts of others who sought to present the roots, the trunk and all parts of the plant. It was after these efforts and such a demonstration that commercialism discovered from those efforts and from Mews' English Cases law that therein was a plan that might be appropriated and applied to end- less shelves of Digests stuffed and pad- ded with millions of local and pro- vincial cases that are nothing less than the tangles of tyros and the mires of bewilderment. And with these gather- ings of jargon there attends the bluff and of bluster of how the law is found and learned in these overtoppling bulks wherefrom the student can never learn why the general demurrer can- not be waived. (See Alterum.) The original "Key Number system" picked the Roman, the English and the American matter and so arranged and integrated it that the plan became an index to all books, digests as well, for it often cited and led to Mews' Eng- lish case law as will appear by ref- erence to the original performance. Splitting and riving off a part of the plan and making it adaptable to a local and provincial Digest is no war- rant for the representations that have been made to the profession and which has certainly greatly misled it. Such is a supposed "new system" and such are the facts upon which the claims for it rests. But the system referred to is not all that is adver- tised and hawked off on a gullible and submerged profession by means of de- ception and misrepresentation. We will next refer to other "new" and "modern" ideas. "New" and "modern" law is also written by tangled tyros. To illus- trate: In Smith's, and now Clark's Elementary law anent Maxims and this one "Equity presumes that what ought to be done was done" or "Equity regards that as done which ought to be done." This maxim is then expli- cated by the statement of law as fol- lows : If a vendor is seeking the specific performance of a contract for the con- veyance of land that it is sufficient to allege the contract and then therefrom the court will presume that the pur- chase price was either tendered or paid. Such facts are presumed from the fact of making the contract. Elsewhere we mention the above "new" law. 122 THE LAW EESTATED Finding the Law. — Accordingly we see that Verba for- tius is reversed in its operation and that all presumptions are in favor of a pleader and not against him. To support such claims for new and "modern" law cases like Balcer v. War- ner, 231 U. S. 588, 593, can be cited. See Vicksburg v. Henson; also Garland V. S.; Stare decisis; Literature. Cf. Campbell x>. Consalus; Clark v. Dillon; G. & A. R. R. V. Clausen. Such are some of the claims for finding the law also an illustration of one of the "new" laws that has been brought forth by commercialism and therefore is only found in its own output. It also tells us that more than 5,000 "new" principles are stated and developed each year. See Vicks- burg. And of such is the literature most widely used and commended to the schools and sold to students. It is this literature that is designed to make every one his own lawyer. (Baylies' Code Pleading and Practice 1—4.) Fully conceding any and all ex- cellence of the oral instruction afford- ed students, still we ask what progress can they make if the outputs of com- mercialism constantly lead them away from true principle and the funda- mentals, are commended to him as a key and a guide and means of test- ing and of suggesting to him. Now can the Pleadings for specific performance be made as short and as simple as that on a bill or note? Such are the "modern" Pleadings advocated also the rules by which they are to be con- strued, Now have the Codes settled any of these questions? Professor Pomeroy is the expositor of the New York Code and Judge Nash of the Ohio Code. Each of these expositors failed to see that each Code was found- ed on the same fundamentals; the Prefaces of these authors will show, that each assumed that his code was a local and flat edict and must be con- strued by the respective courts; each asked for more legislation and for more decisions when all they needed was Rushton v. Aspinall; Bristow v. Wright and Outram v. Morewood (L. C. 5, 135, 25, 3 Gr. & Pud.). The rules of Res Adjudicata dictate the substantial rules of Pleading in every Constitutionalism. This fact is indi- cated in Campbell v. Consalus, in Gla/rk v. Dillon; Palmer v. Humiston and Milbra v. Steel Co. (Ala.) are cases for all systems. Vicksburg v. Finding the law. — Benson (U. S.), is an excellent Code case. It is founded upon Universal, Constitutional principles that can be picked out and presented free of haze and cloud. Now which of these prin- ciples did any of the code authors clearly state and vindicate? And did either Coke or Blackstone or any of their followers understand those prin- ciples? (Sec. 15, 1 Gr. & Eud.) That set of reports, that digest, and that Cyc that sets forth the principles referred to so they can be comprehend- ed and clearly cited to a court should be treasured. That set of reports that clearly de- fines the mandatory record and its tests by the general demurrer and its correlatives should be upon the shelves of every Anglo-Saxon lawyer. That record is not comprehended by the American Lawyer (Pennowfsky v. Co- en er Mo.). The mandatory record is the base — the Datum line of Procedure. It is the Appian way upon which arises the bul- warks of Constitutional defense be- ginning with the general demurrer and its various stages of renewal as at the motion in arrest. Appellate Procedure. (Dains V. Jacksonville Line), Collat- eral Attack, Res Adjudicata, and "Due Process of Law." Herein lies the logic and the philosophy of Procedure. Failure to perceive this and there re- sults nothing more than gatherings of liodge podge and floundering around in the mire of contradictions — Anti- nomyns — in statutes and conflicting cases. About this record and its tests re- ferred to there is no new law and the claims for such is opposed to the logic referred to. Codes brought nothing new. Codes are a codification of the Common Law. The principles in the older law of equity are codified in the Code. Now what are these principles? Can we learn them from any Common Law author? Or from any author on the Code? And do not the latter assume that the Code is an entirely new crea- tion of principles? Did not Professor Pomeroy and Judge Nash? Where did either of those authors present and discuss the principles L^nderlying Campbell v. Consalus so that these principles can be understood. Every student should be well trained in the salients of Procedure and . so that he can intelligently discuss Vicks- burg V. Eanson, Baker v. Warner, Gar- TEXT-IFDEX 123 Tinding- the law. — land V. S., and {Slocum v. Ins. Co. Also how the above record supports the title to property sold on execution and judicial sales; Caveat Emptor and Windsor, L. C. 1, 3 Gr. & End.; also Campiell v. Consalus, Clark v. Dillon; Rushton V. Aspinall, Bristow v. Wright; Milira v. Steel Co.; Palmer V. Humiston, and Nalle v. Oyster. Codes codified; they did not create. Now what did they codify? This is an important and significant question for him who construes a Code. Now which Code author has told us what were the principles that were Codified, and whence came they? We have stated that Re^ Adjudicata dictated the rules of Pleading, and that this is Roman. The requirement that a "cause of action" shall be stated is dictated by Res Adjudicata — Interest reipubliow. And these bring with them the "Manner of the Romans," a,nd the chief maxim of Pleading which is De non apparentihus. (See Alter- um non Iwdere; Demurrer.) Rules of Pleading are dictated by high laws and their operation. And it was these rules that were codified. These rules were not new but they were para- phrased by legislatures. One knowing the older law would look through the statute and see the Universal, Consti- tutional principles of all systems and construe for them statute or no stat- ute and regardless of the blunders of courts and the tangles of. tyros. But whoever looked only at the letter saw as did the authors we have classified anent literature. Those who viewed the Code as a local and fiat edict did not compre- hend the Universal, Constitutional principles of Procedure. All they saw was type on paper to be construed by Feudal ideas. They did not under- stand the attitude of the state in Pro- cedure and its old, immutable and necessary rules of Construction — the Trilogy of Procedure elsewhere ex- plained. They did not understand why the general demurrer cannot be waived. To explain all of the above matter was undertaken by commercialism and its empirics which has deluged the land with their jejune literature that has duped the student and established and fattened millionaire publishers who have submerged the lawyer with over- toppling bulks of confusion with the result of establishing judicial anarchy and degrading the legal profession. Antiquity contended that the law Finding the Law. — was founded upon a few fundamental principles well worked out and com- prehended. Therefore, not more than a, multitude of principles underlie any one of the principal branches. Now give to Procedure ten fundamental maxims and these will be ample for the explication of the subject from a fundamental standpoint. We do not insist that even ten are involved. Par- aphrases and variant expressions of the same principle do not multiply principles as has come to be claimed by Commercialism. (See Vicksburg v. Hanson. ) Stating Vt res magis vaJeat quam pereat as a new rule and not applicable before reaching the stage of the motion in Arrest or at Collat- eral Attack is not new as is supposed in the "Late" case. Ut res is appli- cable at the stage of the general de- murrer and likewise at all the stages where the sufljciency of the mandatory record is called in question. This must be so in order to protect the integrity of the general demurrer. (See obser- vations anent YicTcsburg.) The Feudal lawyer and his followers have not and they cannot admit that there are Universal, Constitutional principles of Procedure because if he did he would indirectly impugn his dogma that "Parliament is omnip- otent." The claims that constitutions create and limit these fundamentals is a narrow and mischievous view. The literature of the law must be rewritten in the lights of Universal, Constitutional principles and away from the mottoes and theories of Feud- alism. Construction of Constitutions and of the Code by Feudal ideas has proven destructive. Feudalism and its followers have not given a single book on Pleadings that is worthy of the student's attention. Better than any Volume that Feudal- ism has given is the "Manner of the Romans" in Saint Paul's Trial and sections 10, 2.')-28 Story's Equity Plead- ing. From these passages is perceived the Trilogy of Procedure, or the trio of principles by which the mandatory record is construed and upon which the attitude of the state in Procedure depends. Herein lie the heart and vi- tals of Constitutional Procedure of a rational "Due Process of Law." Here- from may be perceived the Universal, Constitutional principles that Feudal- ism has scattered all around in a gen- eral ■v\ay but never once plainly stat- ing that these principles underlie every 124 THE LAW RESTATED Finding the Law. — system of Procedure that can serve the requirements of a constitutionalism. The commendations of the American Bar Association are to teach the famil- iar maxims, the general principles and the leading cases. Now which author on common law, or Code Pleading has met that requirement? On the con- trary have not they led away from these essentials and even denounced the maxims as ancient "dogmas" and the old cases as the old system? (See Vi-ckshurg.) The "manner of the Ro- mans" is quite generally recognized in the Criminal Procedure also in Equity. But in the Case at Law wholly differ- ent ideas prevail. Here the Pleadings are waived under the "new dispensa- tion." (See Theory of the Case.) In the law case the attitude of the state is denied. And wherever this is done there the logic and the philosophy of the law are not understood. In the face of these facts we are novp in- structed that in Law Cases pleadings are most strictly judged. Garrett. The fact last stated is illustrated anent Alterum non Iwdere and the matters therein referred to. The max- im last cited does not arise from cases ; not from Davies v. Mann as is claimed by supposed educational journals. Now Davies is an English ease and if the principle Alterum arose in that case then why is not Davies the true "Key Number" Case. And if so then why assign some late American case for the "Key Number." riRE: Allowing it to escape. Vaughan; Fcnt; Fletcher v. Rylands. riRBARMS: Negligent use of. See Dixon V. Bell, 1' Gr. & Rud. Proximate Cause. FISH V. CLBLAND, 33 111. 237, L. C. 12c ; 3 Gr. & Rud. Cited § 24, Restate- ment. In this case Illinois vindicates Frustra prolatur quod probatum non relevat. It holds that a recovery must be Secundum allegata et pro- bata; also that allegata et probata must .correspond. Garrett. Thus ii is held that consent will not center jurisdiction. Fletcher v. Root, 240 111. 249. Dodge V. Wright, 48 111. 382. These cases are in accord with fundameutal law. (See Story; Quest i). Warren.) The Municipal Court Act of Chicago up- holds the TriloiiD of Procedure. Walter, 2.50 111. 420, cited in the Restatement. (Oral claims and affidavits will not en- large or vary the pleadings — Mondel v. Steel, Li. C. 77, 3 Gr. & Rud.) In effect Campbell v. Consalus accords with the above principles. (A stipulation will not dispense with or enlarge or vary a plead- ing-Code case; See Codes.) Variances may be iraircd in Illinois in some cases. /jelUTs v. White. The "Theory of Hie Vase" has been recog- nized in several Illinois cases. Devine V. R. R. See title Illinois in Equity In Procedure. It is dllllcult to And the FisH, etc. — Illinois cases that clearly decide that Pleadings are jurisdictional. The ques- tion is in conflict as will appear from the cases pro and con. Courts in other states find it difficult to determine the attitude of Illinois cases upon the points in Fish. They are in conflict. See Oullin.g; Bris- tow V. Wright, L. C. 135. Jeofails and amendments statutes are extravagant and are generally upheld. See Collateral Attack. FIDNT ENIM DB HIS CONTBACTIBUS scripturse, ut quod actum est, per eas facilius probari poterit : The ease, fa- cility and certainty that are stipulated for in writing should stand as proof. Cited, sees. 10, 12, Restatement. Sec. 53, 1 Gr. & Rud. Contra scriptum; Quod per recordum. Parties have the right to contract what the muniments of evidence shall be of their private transactions and these will be respected by courts. Expressio unius: § 531, Gr. & End.; 44 L.R.A.(N.S.) 388, quoting from Master v. Miller. The state prescribes what shall be the evi- dence of transactions and proceedings in its courts. Herefrom arises the Tril- ogy of Procedure and the lirst rule of evidence which is "What ought to be of record must be proved by record and by the right record." Campbell v. Con- salus; Mondel v. Steel, L. C. 77, 3 Gr. & Rud. ; Mandatory Record. Garrett. Oral evidence. See 4 Gr. & Rud. ; L. C. 48-56, 3 Gr. & Rud. U'oollam v. Beam, L. C. 53, 3 Gr. & Rud. (able r&umg). Cannot prove pleaaings by. Fish v. Cle- land, Mondel v. Steel, L. C. 77. 3 Gr. & Rud. FIXTURES: Elwes v. Mawe, Sm. L. C. 2 Gr. & Rud. FLAG: As an advertisement forbidden. ' Halter, 121 Am. St. 754-7«7n. FLETCHER v. ASHBUBNEB, Wh. & Tud. L. Eq. Cases Equitable Conversion. FLETCHEB v. PECK, 6 Cranch, 87, 2 Gr. & Rud. Legislatures and town councils are immune from attacks of fraud. Ex dolo malo; has an exception. FLETCHEB v. BVLANDS, L. R. 2 Exch. 205 ; Sm. L, C. after the 9th ed. ; 2 Gr. & Rud.; 37 L.R.A.(N.S.) 720. Cited, sec. 19, Restatement. Gilson v. Dela- ware Canal Co. ;!0 Am, St. 308-3(51, ext. n. See .-Ictus Dei: Injure: Alterum: Sic utere: 27 Eng. Rul. Cas. 39 (accident). One having a noxious agency upon his premises must confine it. I-Ic is liable for injuries caused by savage animals. May V. Burdett; 4 Gr. & Rud. ; or nox- ious fumes. St. Helen's Co. 4 Gr. & Rud. One is presumed to intend the natural di- rect and probable consequences of his act. Squib Case, 36 Am. St. 308-361n. FOAKES V. BEEB, 1 R. C. 370-393. See Cumber. Cited Sec. 17, Restatement. FOEMEB JEOPARDY: 2 Gr. & Uud. ; De- pends on Pleading. C. v. Itobu, L. C. 74, 3 Gr. & Rud. ; L. C. 69-75 ; 3 Gr. & Rud. ; 3 Gr. Ev. 35-37'; Guedell v. P.; R. v. O'Brien; R. v. Vaux; It. v. Vandercomb. Must be pleaded. Miller v. U. S. 41 App. Cas. D. C. 61. FOUR IDENTITIES: Discussed In Res Adjudicata, 4 Gr. & Rud. FOX V. MACKBETH, Wh. & Tud. L. C. Eq. ; Idem agens.; Eeech v. Sandford. 2 Gr. & Rud. FBAUD: See Ex dolo malo non oritur actio. 2 Gr. & Rud. Deceit; Chandelor v. Lopus; Pasley v. Freeman, L. C. 374-384 ; 3 Gr. & Rud. TEXT-INDEX 125 Fraud. — Vitiates everything into which It en- ters. See Fletcher v. Peck. Recriminatory ; when a defense. Whit- loorth, FRAUDS AND PERJURIES: See L. C. 33i5-341, 3 Gr. & End. FROST V. KNIGHT, L. R. Ex. 11, L. C. 308a ; 3 Gr. & Rud. In limine hreach of contract. Hochster v. De La Tour. Ile- pudiation hy vendee, right to recover. Pate, — la. — , 51 L.R.A.(N.S.) 735. FRUSTBA PBOBATUR QUOD PROBA- tnm non relevat : It is vain to prove what is not alleged. Cited, sees. 1, 6, 10, 11, Restatement. Pleadings are jur- isdictional and are necessary to authorize the reception of evidence. Irrelevant evi- dence is not a juridical factor. It does not supply allegata. Quod est nullum, nul- lum est effectum. Mogruder, 7 App. Cas. D. C. 310 (a verdict must not depart). FnetUnnder, 38 App. Cas. D. C. 208 ; 1 Whitehouse Bq. Prac. 88, 92. Oarrett. 1 .Tones, Ev. 171 (relevancy of evidence). Departures are not alloiccd is a rule that arises out of this maxim. It does not allow' departures and variances. Bris- tow V. TVrir/ht, L. C. 135, 3 Gr. & Rud. ; Fish V. Clclnnd ; Cockerell, 50 L.E.A. (N.S.) 1 ; 2 Tidds Prac. 620, quoted Lit- erature. Contra: 6 Encvc. PI. & Prac. 468-470; 42 L.R.A.(N.S.) 996. 998; Henri/, 49 Id. 1-44. Oodes reaffirm this maxim l)y providing that all relief granted shall 6e within the farts stated. Campttell v. Consalus ; Ncn- decker, 81 N. Y. 296, citing Tooker, 50 L.R.A.(N.S.) 14. This maxim we classify as one of the Trilogy of Procedure and it should 6e well considered therewith. See De Non; and Verba fortius. Secundum; Allegata et Protata. One cannot sue on an express contract and recover on an implie:! one. BcntleVj 125 Minn. 179, 51 L.R..\.(X.S.) 234. JFDNDAMBNTAL LAW; FUNDAMENTAt principles : See the six leading subjects. Equity, Procedure, Contract, Crime, Tort, and Construction. The Trilogies of these subjects are fundamental law or principles. Principles like Alterum non Iwdere and Idem agens et patiens esse non potest are fundamental law. The lat- ter maxim is extendedly discussed in sec- tions 509-522, Equity in Procedure ; Division of St.ite Power. Courts vindicate. Mariury, L. C. 142, 3 Gr. & Rud. The letter of the Consti- tution governs. 6 Kul. C. L. 104-111. (See Oakley v. Aspinwall ; In prwsentia. Sic utere and salus populi are maxims of construction that guide. 6 Rul. o. L. 186, 187-275, 431 (maxims are). Due process ot law carries fundamental prin- ciples, 442, 452. Recognition of ancient, archaic law is coming to be plainly recognized by American jurists. Under the title In prwsentia majoris, we gather and cite cases that sustain the contention that there are principles that do not arise from cases, nor local and fiat law. (See Prescriptive Constitution.) Oak- ley V. Aspinicull, 8. v. Sheppard, Eiggs V. Palmer and Church of the Holy Trinity indicate the existence of the higher law. Once in awhile some able lawyer goes into court and so argues his case as to arouse interest and in- rundamental, etc. — duce it to spealv as it did in P. v. Tweed, 60 N. Y. 559, 60 A. R. 211. Akin to this case is Huntsman v. 8. L. C. 231, 3 Gr. & Rud. Organic law prescribes the rule that a court is bound by its record. Knickerbocker, 201 N. Y. 379. This is flatly denied by the "theory-of-the-case" courts. These contend that the Code is a new and revolutionary system declared and upheld by local and flat edicts. ( See Pomeroy.) Being obsessed with this idea they commenced construing tlie Code as we indicate in reference to Biddle v. Boyce, also Gulling and its cluster of cases. These cases deny the Trilogy of Procedure which is, 1 : De non apparentibus ; 2: Frustra pro- batur quod probatum non relevat; and 3, Verba fortius. These maxims we present as fundamental law in the Re- statement. Restating the law depends upon gathering and naming the or- ganic, major maxims of the law and elaborating from these the multitudi- nous branches of the law. (See Pre- face. Restatement; Dovaston.) Had the Code been construed in the light of organic principles it would not have failed. It was emasculated by con- struction. {Biddle v. Boyce.) Code authors and expositors have studied Feudal form and style more than they have the fundamentals. They have toe closely studied the style of Tidd and his disciples and far more than they have that of JIansfleld and of Story. The facts about this are stated in the Restatement sections. (See Feudal Lawyer. ) Why it is that the general demurrer cannot be waived has not been made clear to the profession, and we think the reason is that cases have been awaited, sought and cited to elucidate such questions. Such are the claims abroad (See Feudal LA^\'YEB). It is submitted if this question is not best explained from fundamental principles. (See Alterum.) From many viewpoints Constitution- al law must sooner or later have a rectification, for all must admit that there is some cause operating to de- stroy the logic, philosophy, the unity, harmony and the simplicity of the law. Cases like Campbell v. Consalus, Clark V. Dillon, Boss v. Milne, and Huntsman v. 8. are bottomed and per- vaded with some reason why it is that the parties cannot contract a pro- cedure unto themselves, also why it is that there are limitations of legisla- tive authority to interfere with pro- 126 THE LAW EESTATED Pundamental, etc. — cedure. To demonstrate that the limi- tation to contract is also the limita- tion to legislate would greatly aid in raising the clouds of doubt and con- jecture. To do so, no doubt, would prove that there is fundamental law that has too long been kept in a nebulous state. To demonstrate this would be the beginning of the rectifica- tion referred to. To demonstrate that the certainty required in judicial operations is reck- oned from Res Adjudicata and not from Coke's three degrees of certainty (Dovaston) would push into the field of Constitutional law Procedure and all its substantial parts. And such a classification would clarify tlie cases last above cited; this ought come from some source. The struggle over Clark V. Dillon in all jurisdictions is a ser- ious stumbling block if not a bar to the progress of the student. It often appears as a great Universal, Constitu- tional axiom that is mired in a be- wilderment of cases. Under the title Code, Restatement we have stated it. The student cannot do better than familiarize himself with Verba fortius. And is it not, a Constitutional prin- ciple of the profoundest character, far above and beyond Statutes and deci- sions of courts? Fundamental, etc. — The lawyer has his decalogue as well as the theologian. Its principles are but few but the various expressions of these are multitudinous. (See §§ 509- 522, Equity In Procedure.) These principles must be familiarized and in their various expressions. A great city often has more than one name. Now should not any geographer or his- torian know its respective names when he sees it? And should not the drug- gist Icnow the various names of each drug? And the botanist of each plant? And for accurate classification must not he know the Latin — the scientific name for it? The fundamental principles of the law are from the Latin. They were first conceived and named by the Roman who alone gave his law a logic and a philosophy. His great princi- ples we have gathered and explained in the sections of the Law Restated. In these sections we offer the funda- mental law of all civilized countries. Those who call for a return to funda- mental law can only offer the major, organic maxims of all ages for that law. The Prescriptive Constitution is the fundamental law of the land. (See Nemo debet esse judex.) TEXT-INDEX 12; a GARIAND T. S., 232 V. S. 642. Cited, Preface ; also sees. 2, 9, Restatement. A plea of "not guilty," in the right record is no longer jurisdictional. Grain v. V. S. and a multitude of uncontradicted de- cisions denied. See Mundmj, L. C. 79, 3 Gr. & Rud. ; Yunat v. P. ; Gray v. P. 261 111. 140, 49 L.E.A.(N.S.) 1215. GARRETT v. I,. & N. B. K., 235 TJ. S. 308-315. Cited, 5, 2.3, Restatement. The statement of a "cause of action" must describe the wrong done according to Quis, quid, coram quo. (Story, Equity Pleading, 10, 25-28) for reasons dis- coverable in Res Adjudicata, inter alia, 1 Gr. & Rud. 83-124. The omission of a material allegation is fatal to a recovery. Omission to state that the plaintiff was damaged cannot be aided either by consent nor by proving the damages. A "cause of action" arises from the allegata and not the probata. The "theory-ot-the-case" doctrine rejected. (Gulling.) A case can be no better in proof than it is in allegation. Frustra probatur quod probatum nan rele- vat was the old rule and it is the mod- ern. What one does not allege he is pre- sumed not to have. De non. Every presumption is against a pleader. Verba fortius. This Trilogy of Procedure is the law of all ages. It can be picked and argued from cases. Mansfield spoke for it in Rushton v. Aspinall which was quoted and followed by Kent in Bartlett V. Crazier, also in Williams v. Hingham Turnpike Co. (Mass.) L. C. 5, 6, 7, re- spectively, 3 Gr. & Rud. V. S. V. CruiJcshank, L. C. 232, 3 Gr. & Rud. Involved identically the same question. The principle applies to all systems and to all cases alike and Garrett must be construed to accord with the old law not- withstanding the intimations of differ- ences in cases at law and in Equity. The case before the court was a stat- utory cause of action like the Bartlett and the Williams cases. In all these cases the above trio of maxims are the law. Certainty in Pleadings is reckoned from Res Adjudicata and not from require- ments of trial practice alone (but see Pariaso v. V. S.; Garrett). There are other and higher functions of Pleadings than giving notice to a party for trial purposes. Pleadings are Jurisdictional. Consent will not confer jurisdiction of subject matter as it would if Pleadings were merely to give notice to a party for trial purposes. Pleadings are re- quired by the state. AlteruTn; Res inter alios acta. They cannot be contracted away. Campbell v. Consalus. Departures are not allowed. Mercelis, 235 U. S. 579. Frustra. This is the law in all systems. The view that cases at law must be more strictly pleaded than in equity, is op- posed to many authorities. See Story ; Res Adjudicata. Verba fortius is strictly applied in Ap- pellate Procedure. See Baker v. Warner. It will not be implied that damages resulted to n parent from the killing of an adult child. Nor will the proof supply the omission of an allegation of damages. 235 U. S. 313 ; Quis, quid. The rules Garrett, etc. — of construction do not vary and fluctuate in different cases, nor systems, nor at different stages. Goldham v. Edwards; Aider. See Baker v. Warner. 1 Chitty's Pleading, 270 and Daniel's Chan- cery Pleading and Practice star page 368, have not been understood by the "theory- of-ihe-case" advocates. See Story ; Rush- ton; Gulling; Theobt of the Case; Feudal Lawyer ; Literature ; Res Ad- judicata ; Alterum. Garrett should be read along with JJalle v. Oyster; Vicksburg v. Henson; Baker v. Warner; Pariaso v. U. S.; Devine v. Los Angeles, also the maxims above cited. See Chitty ; Pomeroy. We leave it to the student to judge of the value of Glanvil, Bracton, the "Golden period of Edward the III.," of Coke, Littleton, Hale, Bentham, Black- stone, Tidd, Chitty, Stephen, Gould, Dan- iels and that Ions list of supposed great works and illumined pages from which the required light can not be seen by great courts and authors and educational journals. (3 Am. Law. School, Review, 602-617.) GENERAL DENIAL: Is incompatible with the idea that Pleadings are to limit is- sues and to narrow proofs. It is alien to the Code. GENERALIA SPECIAtlBCS NON DE- rogant : Things general do not derogate from things special. 2 Gr. & Rud. GENERAL ISSUE: Like the general denial it is offensive to the genius of the Code. It is an instrument of Crime. Balsewica v. R. R. 240 111. 238, § 346, Equity In Procedure. GEORGE T. CLAGGETT, Sm. L. C. : 2 Gr. & Rud. Factors right to set off. GIFTS: Irons v. Smallpiece; Ward v. Tur- ner. GILSON v. DELAWARE CANAL CO. 36 Am. St. 308-361, ext. n. Cited, § 19, Restatement. In jure: Causation. Great- est rgsumg of the subject. See Fletcher V. Rylands. GILSON V. SPEAR, 38 Vt. 311, 88 Am. Dec. 659. Infants are liable for their torts like adults. 38 L.R.A.(N.S.) 203. GLOSSA VIPERINAEST QU^E CORRO- dit viscera textus : That is a viperine gloss which eats out the vitals of the text. See Theory of the Case. GODDARD V. WINCHELL, 41 Am. St., 17 L.R.A. 788, Aerolite belongs to land upon which it falls. Accessorium; Cuius est solum. GODFREY V. S., 70 Am. Dec. 494 n. In- fants ; their liability for crime. R. v. York, 4 Gr. & Rud. GODSALL V. BOLDERO, Sm. L. C. Also English Reprint. Life insurance is a con- tract for indemnity only. Contra, Dalbi/, 2 Gr. & Rud. GOLDHAM (or GOLDMAN) v. EDWARDS, 18 C. B. 339, 139 Eng. Reprint, 1420, cited Steph. Pleading; Bro. Max. §§ 22, 23 Restatement. Restated, un- der Literature, post. The general de- murrer is never waived. See Demur- rer; Collateral Attack. Only formal 128 THE LAW EESTATED Goldham, etc. — defects are waived; and these are waived tlie Instant they are passed without apt and prompt objection. Consensus. At the stage of the motion in Arrest the tests for substance are exactly the same. As to formal ob- jections they are governed by Con- sensus, at all times. The notion that one may plead to the merits and not waive all formal objections eo instanti is untenable. But many cases can be found pervaded with the idea that de- fects of form may hang in abeyance and after waiver by pleading over, still be available afterward. State Bank, 53 L.R.A.(N.S.) 120, 126-127. To illustrate that a pleading vulner- able to general demurrer may be ob- jected to at any time even after fail- ure to promptly object. That after waiver of all formal defects by failure to object before the trial that still at the trial then it is still time to object to what has already been waived. This view violates a fundamental principle which lies embedded in Consensus tol- Ut errorem. For if a formal matter it is easily waived and if waived then it is gone forever and cannot be recalled. Jurisdiction over formal matters are waived unless there are prompt and precise objections. What ought to be raised by special demurrer is waived if not so raised. But a matter of the general demurrer is governed by other considerations altogether. A matter of the general demurrer concerns the state and its interests cannot be waived. Alterum. These views are dictated from the Trilogy of Procedure. §§ 1-13, Restatement. These views involve the Trilogy of strict Construc- tion on the one hand (the Trilogy of Procedure), and^ the Trilogy of liberal construction on the other hand which are 1. Consensus tollit errorem; 2. Vt res magis valeat quam pereat; and 3. Omnia prwsumnntur rite. See Equity In Procedure. The attitude of the state dictates these distinctions. But tliese distinctions are overlooked in many cases, wherein it is assumed that the further on down beyond the stage of the general demurrer the more liberal will be the rule to uphold the Pleading. Of course if this were so then the general demurrer could be waived by the effect and operation of fluctuating, ever widening and enlarg- ing rules of Construction. Davis v. Jacksonville Line; McAllister v. Kuhn, L. C. 3, 3 Gr. & Rud. Goldham, etc. — ■Jackson v. Pesked is very hazy; Baker v. Warner, 232 U. S. 588, 503, is equally so; also Slocum v. Ins. Co., 228 U. S. 364-428. It is held that after the stage of the general demurrer, that, the tests vary and widen to uphold the Pleading. Penna. R. R. v. Ellet, 132 111. 654, citing and attempting to follow Jack- son V. Pesked; Warren, 2 Gilm. 307 (general demurrer may be waived) ; Brumbaugh, 82 Kas. 55 (denies Gold- ham) ; Gulling and its cluster of cases are antinomies of Goldham.; and very plainly so is 3 Bouv. Die. 3 Rawle Revis. title Pleading (1914); State Bank v. W. V. Tel. Co. — N. M. — , 55 L.R.A.(N.S.) 120, 126, 127. citing cases also 2 Tidd's Prac. 919, which reiterates the jargon of the "defective title" and the "statement of a title defectively stated." (See Rushton which is cited by Tidd; also Litera- ture; Roper V. Clay; § 173 Equity In Procedure.) We do not consider the presentation by Tidd, who is followed by Chitty, Stephen and Gould as in- telligible. They merely state conclu- sions drawn from what Sergeant Will- iams said, about waiving substance. This is denied by Goldham, also Story. Anent Rushton we state much that re- lates to Goldham. Perhaps the broad- est rule of construction compatible with any useful existence of Pleading is found in State Bank Case. It in effect holds that matters of the general demurrer are waivable. This case should be considered with Gulling. See Pleading. Goldham should be studied with Dobson, wherein are found the limits of liberal construction. See Liteka- TUBE. Intellects not familiar with the iden- tities of the general demurrer, the mo- tion in arrest, the requirements of Ap- pellate Procedure, Collateral Attack, lies Adjudicata and "Due Process of Law," have made of these matters one of the worst snarls of the law. See Feudal Lawyee; Liteeaturb. Gar- rett. GOOD V. ELtlOTT, 3 T. R. 693, L. C. 35S. 3 Gr. & Rud. Wager Contracts ; In pari. 4 Brit. R. C. 369. GOOD FAITH: Sought in Construction. Jix dolo malo. Statutes cannot be satis- fled by subterfuge. Cakcr v. D. C. 33 D. C. App. Cas. 27J. GORDON T. GORDON, 3 Swanst. 400. Mistake will avoid contract wlien ; Com- promise will be set aside when. Mistalte ; ignoraiitia facti. TEXT-INDEX 129 GORE V. GIBSON, 13 M. & W. 623, L. C. 486, 3 Or, & Rud. Drunkenness when a defense to a contract. Mate, 127 Minn. 262, 54 L.R.A.(N.S.) 121. Non hwc; 6 R. C. L. 595. GOSS V. NUGENT, 5 B. & A. 58, L. C. 55. 3 Gr. & Rud. No link in the chain of proof can be supplied by oral evidence under the statute of Frauds. GKACB V. MITCHBLI,, 11 Am. Rep. 613. Not only must an officer have regular process (Savacool v. Boughten, L. C. 164, 3 Gr. & Rud.), but he must act bona fide, and he must have process. Blair v. Read- ing, L. C. 170, 3 Gr. & Eud. GKADWOHL v. HARRIS, 29 Cal. 150, Gr. & Rud. There may be a partial as- signment of a claim. Grain v. Aldrich,, 99 Am. Dec. 423, Contra: 129 Am. St. 1064-1067n. GRAHAM V. TUCKER, Fla. 131 Am. St. 134-150, ext. n. Married women ; Con- struction of statutes relating to. Lex non exacte: Henly v. Wilson, 53 L.R.A.(N.S.) 491, 501. GRAMP V. DUNNIVANT, 23 Mo. 254; Equity In Procedure, §§ 463-479. A "cause of action" arises from fundamental law. Fahula non judicium; Actio non datur. Also the necessities of Procedure. Hannibal R. R. 42 Mo. 467, §§ 505-508 Equity. Huntsman v. S. Judicial recitals do not bind. See Dictum; Yicksburg v. Henson; Ferguson v. Craw- ford ; Knickerbocker v. Trust Co. 201 N. Y. 379 ; Nalle v. Oyster. Matter of the statutory record must not be mixed with matter of the mandatory record and vice versa. Chicago Planing Mill Co. V. Chicago, L. C. 2d, 3 Gr. & Rud. "What ought to be of record must be proved by record and by the right rec- ord." It need not be alleged that the con- sideration issued at the promisor's "in- stance and request." Gramp, Contra, Carson, 23 Mo. 265. See Equity, 480. Compare these cases with. Bo-wen v. Em- erson and Weber v. Lewis. GRAVER V. FAUROT, 76 F. 257, L. C. 102. 3 Gr. & Rud. False and sham Pleadings confer no jurisdiction. Nihil possumus; 26 L.R.A.{N.S.) 536. GRAY v. P., 261 111. 140, 49 L.R.A.(N.S.) 1215. Cited Preface. Restatement. Man- datory record must show essentials. GREEN COUNTY, KY. 211 U. S. 87. Cited, § 20, Restatement. Omnia prasum- untur rite ; Ut Res ; Creppa ; Quinlan, 205 U. S. 504, reversing 108 Ky. 116-135 : cases cited. A great conflict of authority. See Feudal Lawyer. GREEN V. PAI.MER, 15 Cal. 411, L. C. 90, 3 Gr. & Rud. De non. Trilogy of Pro- cedure vindicated. GUEDEI. T. P. 43 111. 226, L. C. 74, 3 Gr. & Rud. Allegata et probata must corres- pond. Gridley v. Bloomington, 68 III. 47 ; Fish V. Cleland, S. P. Bristow v. Wright, Guest V. Warren; Campbell v, Consalus. GUII^LE T. SWAN, N. T. 10 Am. Dec. 234 ; 2 Gr. & Rud. S . P. aa In Squib Case; Fletcher v. Rylande. Vanderburgh. GUEST V. WARREN, 9 Exch. 379, — Eng. Reprint — , 2 Sm. L. C. 672 n, 6 Am. Ed. 482, 7 Am. Ed. Cited, § 24, Restate- ment. Interest reipublicce demands Pleadings ; they cannot be waived. A stipulation to alter or vary them is In pari and will be disregarded "What ought to be of record." Contra scrip- turn; Fiunt enim. Quest is consistent with Mondel v. Steel, L C. 77, 3 Gr. & Eud. quoted in Uilbra, 45 L.R.A (N.S.I 274, 277-278; also with Palmer v. Humiston, 46 L.K.A. (N.S.) 640. Guest, etc. — Fish V. Cleland. All of these cases are consistent with Rtishton, Bristow, and Dovaston, L. C. 5, 135, and 217, 3 Gr. & Eud. Also Nalle v. Oyster and Vicks- burg v. Henson. Guest is also quoted and followed in Camp- bell v. Consalus. Accordingly we see the English ease in the basic cases of the Code. Also in the Federal cases. Gold- ham V. Edwards. The Trilogy of Procedure is vindicated by Guest; and of course by its cognate cases. It is denied by Gulling, and the "Theory- of-the-Case" authors. (See Story). Compare the above cases with Gulling V. Bank. GULICK V. WARD, 18 A. D. 389, L. C. 364, 3 Gr. & Rud. Auction sales; Puff- ing bids are illegal. In pari. 37 L.R.A. (N. S.) 289; 38 Id. 719n, 6 R. C. L. 809. GUtLlNG V. BANK OF WASHOE COUN- ty, 29 Nev. 266-280 ; cases, 89 P. 25. Cited, Preface, also §§ 2, 3, 7, 22 23, Re- statement. The issues in a case may he proved without the pleadings, by evidence aliunde. (Nalle; and Mondel. L. C. 77, 3 Gr. & Rud. denied). It is also held that the matter of the statutory record may he substituted for the matter of the mandatory record ; that the identity of issues may be gathered and admitted in evidence without regard to its origin and in denial of the rule that "What ought to be of record must be proved by record and by the right record." (See Planing Mill Co. V. Chicago, L. C. 4d. et seq., 3 Gr. & Eud.) ; 1 C. J. Cyc. 66, 100. Talbot, J^ dissented in a clear and forcible opinion which every student should read. He vainly cited Campbell v. Consalus, and other N. Y. cases and likewise from Illi- nois, and other states ; also Mondel. His opinion accords with Munday v. Vail, L. C. 79, 3 Gr. & Rud. ; Martin v. Edwards, 85 Md. 8, 60 A. S., 36 L.R.A. (N.S.) 218 (dicta of courts are limited by the man- datory record). Vicksburg v. Henson; Fish V. Cleland, L. C. 12c, 3 Gr. & Rud. ; Rushton. Under the supposed liberal rules of the Municipal Court of Chicago the Pleadings cannot be enlarged or dispensed with by oral claims and affidavits. Wal- ter, 250 111. 420 ; Mondel v. Steel. There are limitations of legislative interference. Huntsman v. S., L. C. 231, 3 Gr. & Eud. Also of power to contract away or to consent away the Pleadings. Campbell V. Consalus. Alterum. Gulling and Its companion case Henry v. Hilliard, — N. C. — , 49 L.R.A. (N.S.) 1- 44; State Bank, N. M. 53 L.R.A. (N.S.) 120. 126-127 ; Baily v. Hornthal, 154 N. T. 648, 61 A. S. 643, 49 N. E. 54 ; Knapp V. Simon, 96 N. Y. 284 ; Freer v. Sweet, 118 N. Y. 454, 458 ; Sterrett v. Third Natl. Bank, 122 N. Y. 659, 662, support the "theory-of-the-case" doctrine. Others can be found on pages 66, 100, 1 C. J. Cyc. (identity of issues how proved). These cases accord with several prominent and leading authors among whom are Smith, Clark and Thompson. See Story ; Ltt- EBATUEB ; Demukrek ; Theoby of the Case ; § 117 Equity In Procedure. These cases stand to deny Verba fortius and the rules of Res Adjudicata, 4 Gr. & Rud. They support the contentions that the statute of Amendments and Jeo- fails are to be construed literally. See Clark V. Dillon; Tooker v. Arnoux. With Gulling, the Henry Case and Rensberger v. Britton, 31 Colo. 77-82, reviewed in Hughes Procedure d^ 130 THE LAW EESTATED Gulling, etc. — serves to be classed. There are two Hensberger cases. In the second one a plea of Res Adjudicata arising from the record in the first case was dis-' cussed. The latter case can be cited to support sham, mythical and moot cases and how these may be employed for purposes of chicane and covin in a willing court which was an accessory in denying Exceptio falsi. The at- tempt to plead a plea of Res Ad- judicata upon the record in the first case was nothing more nor less than a flagrant contempt of court for the mat- ter set up for that plea was not heard in the court a quo. That matter was not heard nor disposed of upon the merits. For that plea it seems that only a judgment entry was pleaded, nothing else was pleaded. To this fatally bad plea a replication was filed — a mere denial nothing more. As in the Eenry Case it was held that a fatally bad pleading is made suflicient by forensic conduct. A mere denial was held to supply the omitted facts from the pleading, and too where the court must take judicial notice of its own records and that the supposed matter litigated in the former suit was not heard at all for the reason that it could not 6e heard in that case because it was stricken from the record as a matter that could not be pleaded as set-off or counterclaim. And it was properly stricken. This ended that matter. And tlie court knew it — for its own records showed the fact. Still from a mere denial — a true de- nial the court assumed a sufficient plea as in Gulling and in Henry and in 8. u. Fasse and upon its assump- tions proceeded in the face of the rule that "Estoppels are odious" — in other words Verba fortius: — "that estop- pels are strictly taken" {Ticksburg V. Henson) and judicially declared there was a sufficient plea when its own records in the former case showed the contrary. Here is usurpation and abuse of power in its most flagrant Gulling, etc. — and insidious form. With the record facts speaking plainly and powerfully and binding the court to truth and the facts the court a quo ignored these and proceeded in a tyrannous and most oppressive way and bound a lit- igant by sham pleas that were plain- ly a contempt of court. And they should have been punished as such. And the appellate — the court ad quem upheld these flagitious proceedings. Elsewhere we refer to the comity of courts to uphold and to advance a judicial hierarchy. And further still : The appellate court after upholding an outrage for a plea of Res Adjudicata did not stop with such a plea as it should have done; but it went beyond and assumed to hear and consider matters de novo. After finding the plea this was a bar to all further consideration of that matter. Elsewhere we review these cases which are among the most offen- sive to the due administration of the laws. They ought not pass as "Due Process of Law" in any Constitutional- ism and they would not wherever there are courts invested with equit- able or with superintending powers. For such cases the writ of prohibition ought issue from any appellate court having power to enforce respect for first principles. See Codes; also S. V. Fasse; Slooum v. Itis. Co.; Morn- ingstar, Stokes v. P., 155 N. Y. 581, 590-594; Weber v. Lewis, stated under Contract (material allegations in Con- tract may be supplied by presump- tions) ; Carson v. Ely, 23 Mo. 265, Contra, Gramp t. Dunnivant, 23 Mo. 254. See these cases stated Equity In Procedure §§ 463-480; Garrett (U. S.). Multitudo im pcritorem perdit curi- am. There must be pleadings and they must be certain as to parties. Leonard V. Pierce, 182 N. Y. 431, 1 L.E.A. (N.S.) 161, n. Quis, quid. Ut res. TEXT-INDEX 131 H HABEAS CORPIIS. 2 Gr. & Eud. What questions can be raised. Open rule. Henry v. Henlceh U. S. Marslial, 235 U. S. 219. HADDOCK V. HADDOCK, 201 V. S. 562, 2 Gr. & Eud. Fabula. Andrews. Tlie jurisdictional facts are nerer foreclosed. _4. ThdyG iA^ s HADLEY v. BAXENDALE, 9 Excb. 341, 27 Eng. Eul. Cas. 264. Cited. § 19, Ee- statement. One causing loss or damage by liis negligent conduct is liable for such loss. In jure: Oilson v. Delatoare Canals 26 L.E.A.(N.S.) 1191. Damages for breach of contract. Oor- Mn, 39 Can. S. C. 573, 2 Brit. E. C. 70 (warranty of machinery). See 2 Gr. & Eud. HALE V. S., 60 Am. St. 691, 36 L.E.A. (N.S.) 254n. Contempts ; inherent power of courts. Expressio eorum. HALLETT v. WYLIE. 3 Am. Dec. 454, L. C. 308d, 3 Gr. & Eud. When tenant must rebuild. HALL V. CORCORAN, 9 Am. Eep. SO, L. C. 369, 3 Gr. & Eud. Hiring a horse on Sunday ; in pari. HAMILTON T. WHITRIDGE, 69 Am. Dec. 184n, L. C. 280, 3 Gr. & Eud. Injunc- tion to restrain crime. HANDWRITING. See Hanley. HANFOBD V. DAVIES, 163 U. S. 273. Contracts may be impaired by the judi- ciary but not by the legislature. Conclusions of law are void; facts must 6e pleaded. Hopper v. Covington, L. C. 4, 3 Gr. & Eud. HANLEY V. GANDY, 91 A. D. 315, L. C. 204, 3 Gr. & Eud. Handwriting ; Proof of. HANNIBAL R. R. T. MAHONEY, 42 Mo. 467. The necessities of Procedure are not controlled by statute. Cramp; Bate- son V. Clarh, 31 Mo. 31, cited and dis- cussed in Equity. Huntsman v. S.; Clark V. Dillon. H.ARDING V. GLYNN, Wh. & Tud. L. C. Equity. Precatory Trusts. HARRIMAN v. STOWE, 57 Mo. 93, 1 C. L. J. 400. Servant liable over to master for his torts. 40 L.E.A. (N.S.) 1153. HARBISON V. BUSH, 5 El. Bl. 341. De- famation ; fair comment, Eum qui: 2 Brit. E. C. 208, 40 L.E.A. (N.S.) 681. Ashford, 41 App. Cas. D. C. 305. Privi- lege of witnesses. Watson (1905), A. C. 480, 4 Brit. E. C. 934n. HARVEY \. RICHARDS, 11 Fed. Cases 6182, L. C. 32, 3 Gr. & Eud. Res Adju- dicata; Elements of. HASKEL V. HASKEL, 54 Calif. 262, L. C. 101, 3 Gr. & Eud. Each count must be perfect in itself. Andrews v. Lynch; One may refer to another to avoid pro- lixity. Verha relata. HASTINGS V. LUSK, 34 A. D. 330, I,. C. 160, 3 Gr. & Eud. Defamation ; privilpge | of counsel, of witnesses. Watson (1905), A. C. 480, 4 Brit. R. C. 934n. HAUSWIRTH V. SULLIVAN. L. C. 51, P Gr. & Eud. Eeturns of ofiiceis are not conclusive. See Equity, contra cases. HAYES V. U. S., 170 U. S. 652. Quod nul- lum est, nullum producit effectum. De- iile. HEARSAY EVIDENCE; See Res inter alios acta. L. C. 213-21 IJry, 3 Gr. & Eud. HEAT or BLOOD : See U. S. v. Holmes, 4 Gr. & Eud. HEATON V. HODGES, 30 A. D. 731-742. Description of lands ; Course and distance control metes and bounas. HEAVEN V. PENDER, L. E. 11 Q. B. Div. 503, 46 L.E.A. 33-122, ext. n. Danger- ous premises ; Indemaur v. Dames, 2 Gr. & Eud. HEGABTY v. SHINE, 14 Cox. C. C. 124, 2 Gr. & Eud. Cited, § 19, Eestatement. In pari; Volenti. Consenting to unlaw- ful intercourse gives no right to recover for imparting a contagious disease. Cf. S. V. Beck, 4 Gr. & Eud., also R. R. v. Lockwooft, L. C. 352, 3 Gr. & Rud. Spreading an infectious disease is a tort. R. V. Clarence, 4 Gr. & Eud ; 23 A. & E. Ann. Cases, 63, 64. HENDRICK V. LINDSAY, 93 U. S. 143, L. C. 319, 3 Gr. & Rud. Cited, § 17, Re- statement. One may contract for the benefit of a third. Some schools prefer Lawrence v. Fox, while others are con- tent with Dutton v. Poole. Right of private person to sue on a hand given the public. 27 L.R.A.(N,S.) 573- 601, ext. n. ; 34 L.R.A.(N.S.) 152-154. When third person may ratify a contract made by a third person. Keighley, (1901), A. C. 240, 1 Brit. E. C. 357-404. Third person's right vests eo instanti. Tweedale, 116 Wis. 517. HENLEY V. WILSON, 58 L.E.A. 941. Husband liable for wife's torts. Graham HENRY V. ' BILLIARD, — N. C. — , 49 L.E.A.(N.S.) 1-44. Cited, sees. 21, 22, 23, Restatement. See Gulling; Lester. HE WHO COMES INTO COURT MUST come with clean hands. In pari. He who hath committed iniquity. In pwri. Weefjh- man, C. C. A. 215, 53 L.R.A.(N.S.) 820. HE WHO SEEKS EQUITY MUST DO equity. See Juris prwcepta. HBYDON'S CASE, 13 Eul. Cases, 816. Statutes in derogation of the common law are strictly construed. The Trilogy of Procedure is fundamental law that is respected. Campbell v. Consalus ; Clark v. Dillon and its cognate cases. Qramp v. Dunnivant, cited in Equity. Huntsman V. H. ; Viperina. HIBBLEWHITE v. M'MORRINE, 8 Eul. C. 627, 2 Gr. & Eud. Implied power to fill blanks in a deed. Expressio eorum. HIGHAM V. RIDGWAY, Sm. L. C, 10 Eev. Ecp. 235. Cited 2 Brit. R. C. 671. L. C. 21 3r, 3 Gr. & Bud. Testimony of witnesses, dead, absent or disqualified. HIGHER LAW, See I'RESCiiiPTiVE Cnx- STITUTION. HILT.IAKD V. RICHARDSON, 63 A. D. 743. Independent contractor. Responde- at superior. Sri> M'Manus v. Crickett, 4 Gr. & Rud.; 14 L.R.A.(N.S.) 913n. HILL V. BOSTON, 23 A. R. 332-367. 2 Gr. & Rud. ; Equity. Liability of munici- pal and of quasi municipal corporation.". 13 L.R.A.(N.S.) 1219-1279, ext. n: 00 L.E.A. (N.S.) 1148. Charitable institutions ; damages by Hospital. Va. 51 L.R.A.(N.S.) 1025. HITCHCOCK V. G.4LVESTON, 96 U. S. 341. Contract by equitable estoppel. Mu- nicipal corporations. 53 L.E.A. (NS) 982-1041, ext. n. 132 THE LAW EESTATED HITCHCOCK V. HAIGHT, 7 111. 604, L. C. 12, 3 Gr. & Rud. See Bowman v. P. 114 111. 474. Limitations of aider. Wal- ter, 250 111. 420; Fish v. Cleland; Camp- bell V. Consalus; Quest v. Warren. Aider by verdict. Rushton. Alteriim. HOABB V. BBNNIE, 2 Sm. L. C. 39, Stl! Ed.; 38 L.E.A.(N.S.) 541: 36 Id. 411. Cited, see. 17, Restatement. Non hcec in fcedera leni — Assent essential for a contract. See Trilogy of Conteact. Cutter V. Powell, L. C. 308, 3 Gr. & Rud. Parties make their contracts. 44 L.R.A. (N.S.) 388. HOBACK V. MILI/EK, 44 W. Va. 635, 637, Cites, Windsor. Purchasers must take notice of the mandatory record. A'aKe v. Oyster. Caveat emptor. Knickerbocker. HOCHSTEB T. DB LA TOUR, 2 El. & Bl. 678, L. C. 3086, 3 Gr. & Rud. 36 L.R.A.(N.S.) 410, 1 Labatt, Mas. & Ser. 334, 6 Rul. C. L. 374, 385. HOLIDAY: See Dies non. HOLSIAN V. JOHNSON, 1 Cowp. 341, L. C. 363, 3 Gr. & Rud. Cited, sees. 15, 16, Restatement. Contract ; In pari. 1 C. J. Cyc. 959. HOMICIDE: See V. S. v. Holmes and cases there cited ; also self defense. 4 Gr. & Rud. R. V. Latimer; R. v. Levett; R. v. Hull, and other R. cases. HOPE T. BLAIB, 24 Am. St. 366. Plead- ings essential for protection. This is a notable case in Mo., along with 8. v. Muenclt. These cases are cited in Equity. R. V. O'Brian. HOEAN V. WAHEENBEEGER, 9 Tex. 313, 58 A. D. 14.5, L. C. 85, 3 Gr. & Rud. An authority must be alleged and proved. Quod ab initio. Jurisdiction cannot be retrospectively ac- quired. See this case cited in Equity. Wallace, 38 App. Cas. D. C. 145 (if the court a quo has not jurisdiction, the court ad quern acquires none). A fatally bad pleading may be made suffl- cient by aider. Henry v. Billiard, 49 L.R.A. (N.S.) 1-44. See Campbell v. Consalus . HOBN V. BAKEE, Sm. L. C. Bijultable estoppel. Fixtures. HOBN V. COLE, 12 A. R. 111. Equitable estoppel. (Ablest rfeumg.) HOWAED V. HABBIS, Wh. & Tud. L. C. Eq. Holden, 87 Ks. 221, 54 L.R.A.(N.S.) 495. "Once a mortgage always a mort- gage." See Oral Evidence. HUGUENIN V. BASELY, Wh. & Tud. L. C. Eq. Undue influence ; catching bar- gains. See Chesterfield v. Janssen, 2 Gr. & Rud. HUME V. BOBINSON, 23 Colo. 359, 2 Gr. & Rud. Also Equity. See Oullina. HUNT V. KOrSMANIBK, 8 Wheat. 174. Death of principal revokes the agency. 1 Pet. 1, 2 Gr. & Rud. Ignorantia legis; mistake. Cited in Scott v. Ford, 4 Gr. & Rud. HUNTSMAN v. S., 12 Tex. App. 619, L. C. 231, 3 Gr. & Rud. Pleadings are nec- essary in a constitutionalism. De non- apparentibus: Statutes cannot abolish, see Tbilogt of Peoceddee. Walter, 250 111. 420; Campbell v. Consalus; Guest v. Warren; Collateral Attack; 2 Thomp, Trials, 2313; Clark v. Dillon; C. & A. K. V, Clausen; Gramp v. Dunnivant; Due Peocess of Law. Huntsman, should be considered anent the title Fundamental law ante. It in- volves considerations of the limits of legislative authority to interfere with the means of judicial operations. And there are limitations of the right to con- tract away those means. Campbell v. Consalus. But it is due to observe that this line is not well defined and estab- lished by the authorities. When it is no doubt it will lead the way to a rectification of the province of Constitu- tional law. There is no doubt but that the Trilogy of Procedure is a gathering of principles that are profoundly Con- stitutional from many viewpoints. See the presentation of these in §§ 1-13. Restatement. Cases like Clark v. Dillon and cited cognates vaguely hint at a higher law that must be respected and which led the way of such decisions but they lack positiveness and clearness of statement. Clark is stated anent Codes Restatement. From these cases it can be gathered that Pleadings cannot be dispensed with ; that .a court is hound by its record. Knickerbocker. Both criminal and civil cases are judged by the same rationale. Knickerbocker.; Nolle v. Oyster; Vicks- burg V. Henson. The trilogy of Pro- cedure applies to all eases alike. §§ 1-13, Restatement. HUETADO V. CALIFOEXIA, 110 U. S. 516, L. C. 220, 3 Gr. & Rud. Due process of law protects substance not form. What we call it makes no difference. It is the "Manner of the Romans." See Teilogt OF Procedure ; Presceiptive Constitu- tion ; Huntsman v. 8. HUSBAND AND WIFE: Coercion; Con- tracts ; Wanamaker, TEXT-INDEX 133 ID CERTUM EST QttOD CEKTUM KED- di potest: See Certum: Vt res. 6 R. C. L. 645. IDEM AGENS ET PATIENS ESSE NON potest : One cannot at the same time be the person acting and the person acted upon. Cited, sees. 15, 26, Restatement. This maxim lllie In pari delicto, has variant expression. See Dimes, Oakley (ablest discussion of Nemo debet esse judex: Keech, 2 Gr. & Rud. No one can act where his integrity and his interest are in conflict) : Michoud: Davoue; Bur- ton r. V. S. 202 U. S. 344. The most extended discussion of this maxim is found in Sections 510-522. Hughes' Equity. Singhtary (one cannot serve his own process). IDEM SONANS: WieljoJd i\ Herman, L. C. 98, 3 Gr. & Rud. ; 14 Encyc. PI. & Prac. 288; 38 L.R.A.(N.S.) 190; Myers. — Mo. — , 52 L.R.A.(N.S.) 937 (where final "s" is added or omitted). ID QUOD NOSTKUM EST, SINE FACTO nostro, ad alium transferri non potest : What belongs to us cannot be transferred to another without our consent. Res in- ter alios acta; Non hwc. Pacta con- venta. IGNORANTIA LEGIS NEMINEM BX- ctisat: Ignorance of the law excuses no one. Cited, sec. 18 Restatement. B. v. Prince; R. v. Esop; Levett's Case; C. v. Mash; R. v. Prince. See Actus non facit reum: Gr. & Eud. Hotack v. Miller (mandatory record), Scott v. Ford. A pleader pleads at his peril and must take notice that his record will always be judged by strict rules of construction. See Teilogt of Pkocedorb ; Hotack v. Miller; Camptell V. Consalus. IGNORATUK TERMINIS IGNORATUR et ars : Terms being unknown the art also is unknown. IttEGAHTY: In pari delicto: Salus popu- li. See 2 Gr. & Rud. ; also Equity. Vo- lenti non fit injuria. Hegarty v. Shine; Sec. 17, Restatement. ILLINOIS: Generally vindicates the Tril- ogy of Procedure. Equity in Procedure. See Fish v. Cleland: also Equity. Israel V. Reynolds, L. C. 83, 3 Gr. & Rud. ; Jack- son V. Pesked; Walter, 250 111. 420; Quinn v. P. 220 III. 28. Pleadings are not to limit the issues and to narrow the proofs. An admitted fact must nevertheless be proved. Yeria fortius denied. Martin, 266 III. 172. IIiSt-ET T. NICHOIiS, 22 A. D. 425, L. C. 169, 3 Gr. & Rud. Quando aliquid pro- Tiibetur. IMMORALITY: See In pari delicto. IMMUTABLE ELEMENTS: See PrESCEIP- TivE Constitution ; Trilogy of Proced- ure ; Of Equity ; Ow Contract ; Chime ; Tort and Construction ; Clark v. Dillon. IMPAIRING THE OBLIGATION OF A contract. Bronsono v. Kinsle, L. C. 238, 3 Gr. & Rud.; Tan Hoffman; Modus et conventio; Pacta conventa. 6 Rul. C. L. 317-344. IMPEACHMENT OF WITNESSES: See Falsus, 2 Gr. & Rud. ; Allen v. S. 73 A. D. 760-777, ext. n. IMPLICATIONS: See Expressio eorum: M'Culloch V. Maryland, L. C. 147, 3 Gr. & Rud. Ita lex scripta est. IMPOSSIBILITY: Lex non cogit ad im- possil)ili^* causes may be joined. 36 L.R.A. (N.S.) 240. Underwriters, — Miss. — , 51 L.R.A.(N.S.) 319. KNICKERBOCKER TRUST CO. v. ONE- onta E. R., 201 N. Y. 379. Pleadings are jurisdictional and tliey limit the scope and operation of decrees. A judgment beyond or departing from the pleadings is void. {Vickshurg v. Benson) and such judgment is sub- ject to Collateral Attack. S. v. Muench; Hoback v. Miller; Nalle v. Oyster. Jurisdiction is limited and is construed by the Pleadings; other- wise there would be no diata. The stipulations of the parties will not enlarge or vary the Pleadings. Gamp- hell V. Gonsalus; Guest v. Warren. Verba generalia. Pleadings are a jurisdictional ele- ment of prime importance. Campbell V. Gonsalus; Glark v. Dillon; Tooker V. Arnoux; Palmer v. Humiston; Mil- bra V. Steel Go.; Murray v. Htarbuck; Vicksburg v. Benson, 2,31 U. S. 259, post; Garrett; Miller, — Utah — , 48 L.R.A.(N.S.) 294. Palmer and Mil- bra are also late L.R.A. cases. Gar- rett. Aider. The above cases sustain the rule that "What ought to be of record must be proved by record and by the right record." See Mandatory Record ; Mondel v. Steel, L. C. 77, 3 Gr. & Rud. Munday v. VaAl, L. C. 79 et sea., 3 Gr. & Rud. A judgment is construed from its 146 THE LAW EE STATED Knickerbocker, etc. — Pleadings; its identity is proved by ita issues. This is what the Plead- ings are for, inter alia. §§ 83-123, 1 Gr. & End. (But see 1 C. J. Cyc. 45, 06, 100; also Story; § 3, Restatement. liushton and matter cited under these titles; The "theory -of -the-case" sect stand for proving the jurisdiction from the mere judgment entry; or from the evidence, or bills of partic- ulars, or instructions or arguments or oralities, or agreed statements of facts or any forensic conduct. They will cite Munday in one case and then deny it in the next. Jansen; Ilolinan. They contend that after a judgment is entered that then the maxim Verba fortius expires. Gulling. See CoL- LATEEAL ATTACK. In Knickerbocker it was contended that from the facts of jurisdiction and a judgment entry which the court could or might have made without re- gard to the pleadings, that such a judgment was conclusive. But Judge Cullen held that the Pleadings would be opened and the judgment be tested by these. He held that such was the rule in a criminal case in a habeas corpus proceeding (P. ew rel. Tweed, Knickerbocker, etc. — 60 N. y. 559, 19 A. E. 211) and that the same rule should apply to a civil case as well. (Nolle v. Oyster.) In this case the "theory-of-the-case" doc- trine was denied. The Judge held that purchasers under judicial orders and proceedings are charged with notice and defects shown by the Pleadings. There are no bona fide purchasers un- der a coram non judice proceeding. Windsor v. McVeigh, L. C. 1, 3 Gr. & Rud.; Hoback v. Miller. Caveat emptor applies to a pur- chaser at an execution and judicial sale. He must take notice of all juris- dictional elements. (See Jurisdic- tion.) Knickerbocker. Pleadings enter into titles to prop- erty, both real and personal. Knicker- bocker. Purchasers of property are charged with notice of the coram non judice proceeding. Knickerbocker. The proceeding that is subject to the general demurrer or the motion in arrest, is Coram non judice, and will protect no purchaser imder it. Knick- erbocker. Windsor, L. C. 1, 3 Gr. & Eud. TEXT-IilDEX 147 I-AIDLAW T. ORGAN, 4 Wheat. ITS. Caveat emptor; Chandelor v. Lopus. LAMBORN V. COUNTY COMMISSION- crs, 97 IT. S. 181. Voluntary payments cannot be recovered. Volenti^ Bilhie v. Lumleii stated in Scott v. Ford. LAMPllSIGH V. BKAITHWAIT, Sm. L. C, L. C. 301, 3 Gr. & Rud. Cited, sees. 15, 17, Restatement. A most in- structive case on contract. The consid- eration moving at a previous request fol- lowed by a subsequent promise to pay will support an assumpsit. But a gratu- ity will not. Bartholomew. The request, the consideration and the promise are important elements in contract. It is these elements that must be averred to constitute the "cause of action." Bowen r. Emmerson, 3 Or. 452. See Contkact. The promise must be averred to consti- tute the "cause of action." See Wetter V. Lewis, — N. D. — , 34 L.R.A. (N.S.) 364. (i)e 710)1 denied"! ; stated under Con- tract. 6 R. C. L. 672. LANCASTER v. WILSON, 27 Graft. 624. Cited in Hope v. Blair. Pleadings essen- tial. Mundau v. Vail. LANDLORD AND TENANT: 2 Gr. & Eud. ; Equity In Procedure ; Assignment of lease ; who liable for rent. Kanawha, — W. Va. — , 52 L.R.A. (N.S.) 968-991, ext n. LANFBAR T. MESTIER, 89 A. D. 658, L. C. 181, 3 Gr. & Rud. Judicial Notice. Manifcsta prohatione. LANGABIER v. R. R. 16 A. R. 550, L. C. 174a, 3 Gr. & Rud. Dies non; Injunction may issue on Sunday. Necessita. LANGE T. BENEDICT, 29 A. R. 80, L. C. 159, 3 Gr. & Eud. Judges ; have im- munity for their acts. Rex non potest peccare. LANGRIDGB v. LEVY, 4 M. & W. 337, 2 Gr. & Rud. Contract ; Privity ; One may contract for the benefit of a third. But- ton; Hendrick; Lawrence; Thomas v. Winchester (belladonna case) ; Winter- bottom. LANSDOWN V. LANSDOWN, Mos. 364, 37 Bng. Reprint, 605. Accident and mis- take relief from. Hunt v. liousmaniere ; Brown v. Lamphear, L. C. 347, 3 Gr. & Eud. LARCENY: R. V. Thurhorn, 4 Gr. & Rud. and cases cited ; 88 A. S. 546-608. Bish. Stat. Crimes : also Crim. Law. 2 Gr. & Eud. 8. V. Homes. See li. v. Cases. LATA CULPA DOLO ^QUIPARATUR: Gross negligence is equal to fraud. See Negligence, 4 Gr. & Eud. ; li. v. Long- bottom and B. v. Rotne, 4 Gr. & Rud. LAW OF THE ROAD: 2 Gr. & End. Negligent driving: 35 L.R.A. (N.S.) 148. LAWRENCE v. FAST, 71 A. D. 274, n. Assessment roll must be certain. Mc- Lean, 84 Ks. 852, 35 L.R.A. (N.S.) 653- 657 ; Rustin; Marx. Tilton. LAWRENCE v. FOX, 20 N. Y. 268. Willst. Cents. 303, 526, stated under Contract. Cited, sec. 17, Restatement, One may make a contract for the benefit of a third. Button; Hendrick. The objection to this is the fact that the third party was not present and thus a novation took place. Hanging to this idea the cases referred to are a veritable Jungle of discussion. But look from Juris prwcepin: Jure na- tural equum; and Allegans conirarla non Lawrence, etc. — est audiendus and sufficient reasons will appear to sustain the above cases. The Feudal Lawyer could not understand the "Squill Case" (Blackstone dissented) ; The action of money had and received was forced upon him. Everything that was promoted from an equitable stand- point met his resistance. He has never comprehended the maxims. Look at the battle over the Trilogy of Procedure ; also what constitutes "Due Process of Law," He has not understood In ficlione juris semper wquitas e.t-i.'^tit. Lex non coffet ad vana. Look at GuUivrf v. Bank. LEA V. LEA, 96 A. D. 772-799, n. L. C. 30, 3 Gr. & Rud. Res Adjudicata. Am- biguous record will not support a plea of Verba fortius. LEADING QUESTIONS: 47 A. D. 74-S5 ; 1 Gr. Ev. 434, 435. LEASE: See Landlord and Tenant, 2 Gr. & Rud. ; also Equity. LE BLANCHE v. LONDON B. B. L. R. 1 C. p. Div. 286, 4 Gr. & Rud. Expressiu eorum. 49 L.R.A. (N.S.) 249. A carrier's ticket carries with it the time tables. Likewise a baggage check has many in- cidents annexed. LEE V. GRIFFIN, 1 B. & S. 272, L. C. 338, 3 Gr. & Rud. Statute of frauds ; thing to be manufactured. LEG.'VCY: Operates as payment of a debt when. Fidelity Co. 158 Ky. 522, 54 L.R.A. (N.S.) 1156, n. LEGATOS VIOLARE CONTRA JUS GEN- tium est : It is contrary to the law of nations to do violence to ambassadors. International Law. LEGES NON VERBIS SED REBUS SUNT impositw: Laws are imposed on things not words. 4 Gr. & Rud. Fnbula : Mil- bra, 46 L.E.A.(N.S.) 274, 277, 278. A cause of action must be real. Scott v. McNeal, 4 Gr. & Rud. Sham and false pleadings offend this maxim. LEGES POSTERIORES PRIORES CON- trarias abrogant : When the provisions of later statutes are opposed to those of an earlier, the earUer are considered as repealed. Bronsie v. Kinsie, L. C. 238, 3 Gr. & Rud. LEGES INTERPBETATIO LEGIS VIJI obtinet : The construction of the law obtains the force of law. Cujus est in- stituere; Gulling. LEGISLATIVE JOURNALS: Admissi- bility of oral evidence to affect. "What ought to be of record must be proved by record and by the right record." Contra scriptum: Fiunt enim: Koehler v. Hill, GO la. 542-704. See .Atchison R. R., 28 Okla. 94, 40 L.R.A. (N.S.) 1-39, ext. n; Judicial Kec- OKDS ; Culling. LEGISLATIVE LIMITATIONS: AUTHOR- ity : "Parliament is not omnipotent ;" Statutes are not construed Ita lex scri/jla rst. They are construed Lex non exacte definit sed arbitrio bono viri permitlrt. The very instructive case of Oakleii r. Aspinwall, 3 N. Y. 547, L. C. 222, 3 Gr. & Rud., shows that constitutions and statutes must yield to fundamental law. See Idem agcns et patiens esse non potest discussed in Hughes' Equity, §§ 509-522. Lester v. Foxcrojt, L. C. 341, 3 Gr. & 148 THE LAW EESTATED legislative Limitations. — Kud. Also In pnesentia majoris cessat pot&ntia viiiioris. And equally clear is S. ex rel. Benson V. Sheppard, 192 Mo. 497, 64 Cent. L. J. 125, 4 Gr. & Eud. These cases plainly recognize a "higher law," which is vaguely hinted in Clark v. Dillon, and C & A. R. R. V. Clausen, In Indianapolis v. Horstj 93 U. S. 291, L. C. 223, 3 Gr. & Rud. the power o£ legislatures to interfere with the due administration of the laws is denied. The Trilogy of Procedure is of "higher law" and should be vindicated as such. See Codes ; De nan: In prwsen- tia, majoris. The Feudal Lawyer and his followers denied the higher law. And now we have judicial anarchy. See Oul- ling. To regulate contract, Millett. Assignment of icages ; statute may prohi'bit. Heller, 254 Md. 704, 54 L.R.A.(N.S.) 191 ; Legalizing nuisance. Toledo Disposal Co. 89 O. St. 230, 54 L.R.A.(N.S.) 1207. IE NEVE V. LE NEVE, Wh. & Tud. L. Eq. Cases, L. C. 296, 3 Gr. & Rud. Bona flde purchasers of Real Estate. What constitutes. tESTEK v. FOXCBOET, Wh. & Tud. L. C. Eq., L. C. 341, 3 Gr. & Rud. Cited, sees. 10, 21, Restatement. Statute of Frauds ; Equitable exceptions to the Stat- ute. Ex dolo malo. Possession taken un- der and in pursuance of an oral contract to buy and held openly, notoriously, con- tinually and unequivocally can be specific- ally performed. This Equity of possession is the main equity to be alleged ^nd proved. Ilalligan v. Frey, 49 L.R.A. (N.S.) 112-120. Possession need not he alleged ; it is aided by verdict. Henry v. Hilliard, 49 L.R.A. (N.S.) 1-44. See Literatuhe. And oh- servation there made of Tidd's Practice. Lester V. Foxcroft, Henry v. Hilliard, 155 N. C. 372, 49 L.R.A. (N.S.) 1, 44. Henry and HalUgan v. Frey, — la. — , 49 L.R.A. (N.S.) 112-320, with notes, are both cases of the same class and might well have been an- notated together. Each was for Specific Performance and were Equi- table exceptions to the statute of frauds. Each is governed by tlie prin- ciples in Lester v. Foxcroft, L. C. 341, 3 Gr. & Rud. Lester is cited in the notes to HalUgan. Each case in- volved the most refined Pleadings and proofs known to the law. And far more so than a plea of Res Adjudicata or an indictment for perjury. Henry is annotated to the point that a plea of the statute may be waived. And of course it can be waived where no "cause of action" is stated as was the case in Henry. We can pick out of HalUgan that the leading equity in such cases is that a contract to sell was made and in pursuance and under this contract the vendee took possession and held under the con- tract openly, notoriously, continuous- ly and unequivocally. This is the primary, fundamental and jurisdic- tional equity. It is just as necessary Lester, etc. — to allege this Equity as it is to state the names of the parties or to de- scribe the land. A statement omit- ting the main equity is no pleading at all. This conclusion is stated on the authority of Lester v. Foxcroft, also HalUgan, Where there is no statement then there is no need for a plea or answer in any case. And without them it is error to admit evidence. ( Bradbury v. Cronise, L. C. 35, 3 Gr. & Rud.) If the statements confer no jurisdiction ( Story's Equity PI. 10, Hughes' Equity 47), then failure to plead will not confer jurisdiction, nor will irrelevant evi- dence supply the omission of a mate- rial allegation — neither the name of the plaintiff nor defendant, the de- scription of the property nor the main, primary equity. In jurisdiction. Manifestly the defense was that no "cause of action" was juridically pre- sented and that the ground of the general demurrer could not be waived. And this view prevailed in tlie trial court. But its judgment was reversed and an opinion was given that does not even have the distinction of Gull- ing V. Bank ( Nev. ) . It too was an equity case and it might be well to read it along with Henry. Both of these cases stand for the "new" rules that the general demurrer can be waived. They are in accord with Thompson's Trials, §§ 2310, 2311; also Smitli's, now Clark's Elementary Law in relation to the maxim "Equity regards as done what ought to be done; " also 20 Cyc, 312, n. 4. These stand for the view that a court can start with no jurisdiction and keep going until by hook or by crook ac- quire it. In Henry it was acquired from the silence of the defendant in a court that reversed the maxim Ver- ba fortius accippiuntur contra pro- ferentem. Dovaston v. Payne, L. C. 217, 3 Gr. & Eud. If the defendant waived his defense this did not supply the omission of an omitted allega- tion. If the allegations of the bill were admitted then no evidence was required to prove the case stated. Such admissions of record did not aid the bill. The referee as is usual admitted irrelevant evidence and found for the defendant and whatever ex- ceptions he may have made to such evi- dence were lost for the very plain rea- son an appellee is not required to file a bill of exceptions to save his excep- tions. A bill of exceptions — the stat- TEXT-INDEX 149 lester, etc. — utory record is for an appellant in a court of errors only. It is not the appellee's pleading. The point that the defendant did not except to surplus- age — to irrelevant evidence — and thus supply the omission of the main equity altogether makes as indefen- sible a case as the Gulling Case. The court plainly held that failure to plead and to except to evidence sup- plied an essential pleading, a juris- dictional pleading. It is vain to prove what is not al- leged. (2 Tidd's Practice 920.) The evidence must correspond with the al- legations and be confined to the point in issue. The allegata et probata must correspond. A recovery must be Secundum allegata et proiata. Frus- tra probatur quod probatum non rele- vat. A ease cannot be better in proof than it is in allegations. It is a per- verted and distorted view that an ap- pellant must prepare and tender and establish a, statutory record to show that he excepted to irrelevant evidence in order to protect his recovery from illogical and astonishing judicial freaks in judicial procedure in a court of errors. Irrelevant evidence is not a juridical factor any- where. An appellee ought not fear the eflfects of surplusage and of what the court should condemn rather than to use to overwhelm the fundamental principles of law. These were not comprehended and respected in Benry. Courts that hold that the general de- murrer can be waived wabble around and get out of line in every way and talk about most everything except the major — the organic principles of Pro- cedure, as was dene in Henry. To concede that the court had no jur- isdiction until the defendant down the line of action failed to plead de- nies the fundamental, Quod ab initio non valet intractu temporis non eon- valescit. It also denies that the gen- eral demurrer searches the subtsan- tial pleadings and attaches to the first fault found therein. In Henry the court was blind to the first fault which was the failure to allege the primary, the chief equity upon which the "cause of action" hinged. Also to open the statutory record and pick from its matter irrelevant evidence and import this into the mandatory record to supply the omission of what the latter must contain. To pick from the statutory record the faults of the appellant (introducing irrele- lester, etc. — vant evidence), and holding this sur- plusage up and in the face of the ap- pellee and saying to him this is your fault and we charge you with it. But the first fault is when the essential al- legation is omitted from the pleading. The rule that "What ought to be of record must be proved by record and by the right record" shall not apply to an appellee who does not object to irrelevant evidence. We charge him as being first at fault and for not having here a. bill of exceptions to protect his recovery and so we can apply the rules that the general de- murrer is never waived: and that it searches the entire record and attaches to the first fault. We cannot apply these rules because the appellee failed to object to irrelevant evidence. By reasoning like this the rules of the general demurrer are silted over with nothing less than jargon. § 117, Equi- ty In Procedure, quoting Stephen. Had the court have said in Henry, the bill filed in this case is fatally de- fective for failing to allege the ele- ment of possession and therefore we must aflBrm upon the authority of Lester v. Foxoroft, L. C. 341, 3 Gr. & Pud., also Halligan what lawyer in England or in America could have denied its correctness? The findings of the referee ought to stand as a verdict we concede for the purpose of curing defects at that stage, but only formal defects, not substantial defects. Formal defects are waived the instant they are passed without apt and precise objection (L. C. 290-299, 3 Gr. & Eud.). Fatal de- fects in the statement of the "cause of action" are never waived; as to formal defects in the statement they are waived the instant they are passed without proper objection, and gen- erally long before the stages of the verdict. A verdict cures nothing ex- cept the formal errors made the mo- ment before (see Consensus tollit er- ror em) . Aider by verdict cures only formal defects. C. & A. R. R. v. Clausen (111.) ; Cla/rk V. Dillon (N. Y.) ; Hitch- cock V. Haight, L. C. 12, 3 Gr. & Kud. ; Yadakin v. Soper, L. C. 11, 3 Gr. & Rud. That is not the function of a verdict or of findings. On the con- trary judicial findings are limited by the Pleadings. Judicial recitals not founded on the allegations are dicta. Verba generalia restringwntwr ad habilitatem rei vel personam. Fer guson, L. 0. 264, 3 Gr. & Kud. ; Enick- 150 THE LAW EESTATED Lester, etc. — erbocker Trust Co. v. B. R., 201 N. Y. 379; 8. V. Muench (Mo.) ; Miller, — Utah — , 49 L.R.A.(N.S.) 294. A judgment beyond the issues is void. Munday v. Vail, L. C. 79 et seq. 3 Gr. & Rud.; Tickslurg v. Benson, 231 U. S. 259 {Verba generalia) ; Gar- rett. In after years as in Outram v. More- wood, L. C. 25, 3 Gr. k Kud. under the tests of Res Adjudicata could it ever be said that Benry is tlie same class of case as Lester v. Foxcroftl Could it ever be said that the issue of possession was litigated? And could this issue be maintained by finding irrelevant evidence in the mat- ter that belongs to the statutory rec- ord? And is the latter record ever opened on questions of Res Adjudica- ta? The parties cannot even by express agreement, by stipulation filed, en- large the Pleading, now how could it be done by admitting irrelevant evi- dence? Campbell v. Consalus. Not even an answer can supply an omitted allegation ( Tooker u. Arnoux ) , now how can irrelevant evidence? Look from Viclcsburg v. Benson; Standard Oil Co. v. Mo. 224 U. S. 270, also Campbell v. Consalus, Clark v. Dillon, and Tooker v. Arnoux, all N. Y. cases and see if irrelevant evidence can supply a material issue in 'he statement of a cause of action. Look from all of these cases and see if Henry will pass for "Due Process of Law." If a verdict or the findings of a court can import one equity or one material allegation then all the ma- terial allegations can be so imported and in this case all that is needed is to get a judgment entered by a neg- ligent or drowsy court and then con- tend that a judgment entry calls to it all necessary support — that it carries its own implications as in Culling v. Bank, also in Eighmy v. People (N. Y.). Compare, Nalle v. Oyster, Vicksburg -u. Benson (U. S. ) ; also Palmer v. Bumiston (0.) Benry is opposed to the Code cases, Camp- bell V. Consalus, Clark v. Dillon and Tooker v. Arnoux all New York cases also the Trilogy of Procedure. Hughes' Equity, §§ 101 et seq. It is opposed to the greatest maxim of Procedure -tthich has long been ex- pressed in the language of all nations and thus: Lester, etc. — De non apparentibus et non exist- entibus eadem est ratio. All Codes reaffirm this maxim of antiquity. It can be picked out of Story's sections 10, 25-28. Hughes' Equity § 47. The Federal and Code cases above cited sustain that Uni- versal, Constitutional canon of all ages and climes in a Constitutional- ism. Departures from that maxim leads to judicial anarchy. See Re- statement. Lester v. Foxcroft, is one of the most instructive cases, §§ 10, 21 Re- statement. I/ETTEKS: Contracts by. Adams v. Linasell, 1 B. c& A. 681, L. C. 326, 3 Gr. & Rud. Cited in Equity In Procedure. Are iiresumed to have reached their desti- nation. 49 L.R.A.(N.S.) 45S-470. Om- nia prwsumunttir rite. See Peksdmp- TIONS. liEVETT'S CASE, (B. V. Levett) Cro. Car. 538, 79 Eng. Reprint 538, 4 Gr. & Rud. Cited, sec. IS, Restatement. Actus non facit. Iqnorantia facti excuftat. lEX DILATIONES SEMPER EXHOB- ret: The law abhors delay. tEX EST MISEBA UBI JUS EST VAGCM aut incertum : It is a miserable state of things when the law is vague and un- certain. I.EX FOEI: The law of the forum. lEX LOCI CONTRACTUS: The place where the contract is made. If a con- tract is valid where made it is valid everywhere. Van Voorhis v, Bnntnall, 4 Gr. & Rud. Wager contracts, how affected by. Moulis (1007), 1 K. B. 746, 4 Brit. E. C. 352, ext. n. LEX NON COGIT AD VANA SEU INU- tilia peragenda : The law forces no one to do vain and fruitless things. 2 Gr. & Rud. Equity. 'Natura non facit vacuum : Morningstar. LEX NEMINBM FACIT INJUBIAM: The law does wrong to no one. LEX NON COGIT AD IMPOSSIBILIA: The law will not require an impossi- bility. Bailey v. De Crespigny, 2 Gr. & End. Peck v. V. 8. 102 U. S. 64. LEX NON EXACTS DEFINIT SED ABBI- trio bono viri permittet: The law does not exactly define but always leaves something to the judgment of a good and wise man. This is a maxim allowing that construction in favor of fundamental law; it is also a max- im permitting the sound discretion which is so often involved in proced- ure. As to whether the chancellor will entertain jurisdiction or refuse it involves phases of this maxim. The Federal "Due Process of Law" Procedure is pervaded with this max- im, for, as to whether the court w'ill or will not entertain jurisdiction of a matter presented by the record is largely a question of discretion. It cannot be gathered from the cases that there are fixed and certain rules. This maxim is opposed to the op- TEXT-IIsTDEX 151 lex, etc. — eration of Ita lex scrlpta est. The strict statutory constructionist op- poses the operation of this maxim and its cognate Expressio -jeorum. See Feudal Lawyer. In prccsentia majoris. In Re Moore, 111 Fed. 145-150 cases. Standard Oil, 221 U. S. 734, 34 L.E.A. (N.S.) 834, 874, n.; Church of the Holy Trinity. Local and flat laws may be depart- ed from in order that fundamental law may have effect and operation. In prwsentia. Disceme per legem quid sit justum: To see what would be just according to the laws in the premises. Gon- temporanea. The jurisdiction of Equity is made flexible and operative for fundamental law. Lee v. Pritchard, 2 Swanst. 402, 427, 1 Keener, 59, 1 Scott 149, 36 English Reprint, 679 ("Equity is a roguish thing") ; quoted 1 Pom. Equity, 57. The limitation of Equity has given the Feudal Lawyer endless trouble. He has never been able to clearly define it. For centuries it has been a stumbling block to him and his followers. They have respect- ed many witticisms respecting it. Ambitious and unrestrained judges have often abused this maxim and its cognates so that dread of them has often placed many barriers in the way of exercising "a wise discretion." This is illustrated in the law of con- tempt; also in recognizing the liber- ty of tlie press to publish judicial proceedings. See DefajiIAtion. See 4 Gr. & Rud. ; also Equity; Legislative limitations. I,EX NON VETAT PBBMITTET : What the law does not prohibit It permits. tEX BEPROBAT MOBAJVI: The law dis- approves of delay. Lex dilotioncf^. lEX VIGIiANTIBDS NON DOBMIBNTI- bus subvenient ; Laws assist the vigilant and not the sleeping. 4 Gr. & Rnd. LIBEL AND SLANDER: See Defama- tion; Fair Comment: Eum qui nocentum: Harrison v. Bush; Mercantile Co.; Pacific Packing Co. v. Bradstreet, 25 Idaho, 606, 51 L.E.A. (N.S.) 893. LIBERTY OF THE PRESS: 4 Gr. & End. GomperSj 4U App. U. C. 293. See Defamation'. LICKBAREOW v. MASON, Sm. L. C. ; L. C. 394, 3 Gr. & Eud. Bona flde pur- chasers rights rest upon this equity, namely, "Where one of two equally inno- cent persons must suffer irom the acts of a third he who first trusted must first suffer." Swift r. Tyson (commercial paper). Le Nere v. Le Neve, ante (real estate). Bassett r. Noswortliy, L, C. 395, 3 Or. & End. (of chattels) ; Merchant's Bank, 10 Wall. 604. Lickbarrow, etc. — Clothing one with the imUciii of title gives him pouter to sell. Allegans contraria. Crimen omnia. LIGHT AND AIR: See Easements, 2 Gr. & Eud. LILLY V. MENKE, 126 Mo. 190, 211-213; S. P. Clark r. Dillon: Davis v. Jack- sonville. 126 Mo. 65, 68. LIMITATIONS OF ACTIONS: 4 Gr. & Eud. ; ISquity. Eepresentatives may waive, when. Bern, 18 Idaho, 358, 54 L.E.A. (N.S.) 1016, ext. n. LIMITATIONS OF INDEBTEDNESS: Beard v. Hopkinsville, 2 Gr. & Bud LIMPUS V. GENERAL OMNIBUS CO. 17 R. C. 528. Agent is liable for his ma- licious acts. UcUanus, 4 Gr. & Eud. 1 Br. R. C. 52.S-535. LINDSAY V. COOPER, 33 A. S. 105, 16 L.E.A. 813, 4 Gr. & Rud. Title to land may rest on equitable estoppel. Estoppel; its operation on title to land ■ Knauf. 153 Wis. 306, 48 L.E.A. (N.S.) 744-775, ext. n. LIQUIDATED DAMAGES : Kemble V. Far- ren, L. C. 391, 3 Gr. & Rud. LIQUOR LAWS; CONSTITUTIONAL right to prohibit: 15 L.E.A. (N.S.) 90S, n. LIS PENDENS: 4 Gr. & Rud. LITERARY PROPERTY: See Copy- right ; 4 Gr. & Rud. LITERATURE: See this title in 4 Gr. & Rud., also in Equity, also 2 Hughes' Proc. Authors can be classified according to their theories and careers. There are those who view the law from an- tiquity and imbedded in statements that have stood the tests of time (see Maxims ) , and that from these arise a logic and philosophy. Among these are: 1. Ulpian, Bacon, Mansfield, Story, Kent, Shaw, Greenleaf, Stephen J. Field, David Dudley Field, Bishop, Broom, John W. Smith, Mechem, James C. Carter and Jones (Evidence) . 2. Those who have not stated and vindicated the Prescriptive Constitu- tion and who impressed the view that the law is local and fiat — that "Parlia- ment is omnipotent" — and that the law arises from statutes and cases. They stand for statutes and cases and this claim of commercialism: that "the law is the last interpretation of the law by the last judge; " also that "more than 5000 new principles are stated and developed each year." Di- gests, C'ycs and mechanical annota- tors support this view. Among these are: Coke, Blackstone, Serjeant Williams, . Tidd, Chitty, Stephen, Gould, Poine- roy, Abbott, Dillon, Freeman, Browne and Sedgwick. See Case System, 2 Gr. & Rud. See Restatement for facts about authors. This class indirectly ignore and 152 THE LAW EESTATED Literature. — lead away from the old law and con- stantly magnify and overimpress local and fiat law and late decisions. 3. A third class openly and boldly assert that old things have passed away and that a new dispensation has come. Chief among these are: Thompson, Smith and Clark (Kle- mentary law; see Story; Lester v. Fox- croft, ante) ; all the Code authors who adopted the loose and visionary state- ments of Pomeroy (see Pomeroy) Thompson and of judges who hold that pleadings can be waived (see Story; Theory of the Case), most of the "Hornbook" authors belong to this class. They rarely cite a maxim or cite correctly English cases. They never state and vindicate the major — organic maxims — of the law. They are statutory and late case digesters and annotators. (See Preface.) The second and third classes have never comprehended the attitude of the state in procedure and why it is that the general demurrer cannot be waived. Nor that "Due Process of Law" and Res Adjudieata have mutual and recip- rocal interactions, and that the ne- cessities of these subjects dictate the rules of Evidence, I'leading and Prac- tice. (§ 10, Restatement.) They have not demonstrated that the Code merely reaffirmed old principles (see Quis, quid ) . They have not comprehended the Mandatory and the Statutory rec- ords (see Uondel v. Steel, L. C. 77, 3 Gr. & Rud., also pages 66, 100, C. J. Cyc as to proving identity of causes; also Multitudo imperitonem perdit curiam, ) . The second and third classes have not defined pleading as a jurisdiction- al element. (See Jurisdiction; Gar- rett.) Along with the products of the above classes have come works that cannot be classified for the reason that a multitude have contributed to their elaboration. One of these works is the famous student's work called "Brief Making." This somewliat peculiar worlc lias been a class boolc in several schools and famad teachers among whom can be named an ex-president of the American Bar Association taught [a post graduate class] from this work. (See § 110, Equity In Pro- cedure.) Other works are written by the editorial staff. A most worthy author has observed of "the exclusive glory of the legal profession" to shower honors and to Literature. — exalt mountebanks and to exhibit a greedy appetite for effusions from the slums of empiricism. To justify what he wrote we will observe that doctors and scientific men will investi- gate and speak out in defense of the public, and for this expose malefactors and imposters; while on the other hand supposed great and good judges and lawyers will give them letters of marque and reprisal and certificates of worth and respectability. See Pref- ace to Bishop's New Criminal Law, pp. vi— vii; also Melius est petere fontes, 4 Gr. & Rud.; also Codes and the mat- ters there referred to. Is the law student a victim of du- pery? The denunciation of the lawyer and of his establishments are indictments that ought to be laid before every stu- dent and lawyer who is not calloused by prejudice, sordidity and commer- cialism. The most prominent mem- bers of the profession have pronounced anathemas in Bar Associations and these can be found in The American Bar Association Reports, also In New York, Illinois, Texas and in other states. They have also written arti- cles in law journals also lay journals deploring the changed conditions. Many eminent men have spoken of what they conceive to be a national menace. These are agreed that the profession is submerged with ignor- ance, sordidity, commercialism, blind- ness and indifference to duty and ob- ligation. Some portray the profession as a horde of howling dervishes around a whited sepulcher, as a menace to good government and to society; and that the rank and file are behind the times and borrow all of their respect- ability from being a "member of the legal profession" and not from any in- trinsic worth. Gather the addresses referred to and lay them before the "average" lawyer and generally he assails the speaker as one who owes his eminence to his wealth and long service of the "in- terests" and for these looting the pub- lic. Also for their companionship with multimillionaires. It seems that whoever speaks or acts for the uplift- ing of the profession receives the taunts and even sneers of the rank and file as in the olden time when the bears in the wood were aroused by the jibes and jeers of juveniles shouting "go up, thou bald head, go up!" The orators referred to seem to TEXT-INDEX 153 literature. — think that to appeal to Deans and pro- fessors is as a "voice crying in the wil- derness." We speak optimistically for we think the situation may be likened to the parable of the sower. But it is due to concede that only on one day optimism prevails while on the next pessimism. However look at the data we shall cite for a basis of certain esti- mate. Paralleling the addresses referred to are the clamors and the hurrahs of empiricism and of commercialism of "new" ways and methods of writing and teaching the law. In the light of the facts, we shall submit whether the student can make headway against the deafening din and confusion. (See Consensus; Jackson v. Pesked). On the one hand he reads of the de- parted glories of the profession and of its submergence and retrogression trying to follow the "new" ways and methods that have come. The de- nunciations of these is clear and em- phatic and with^Tit any exceptions to any quarter or to any plan or of any way. Indeed any and all light is de- nied. Let us quote: "It is too late to talk reform; palliatives will not do. Eevolution is demanded and it is de- manded now. Like the Romans we must burn our books and start anew from the fundamentals." (Elihu Root.) Here is an exhortation to return to the old and to the eternal. But con- tradiction of this admonition is de- nied by the pictures and the mottoes hung on the wall by commercialism of almost every lawyer. Among the latter are found instruction like this that: "more than 5,000 new principles are stated and developed each year;" also that: "the law is the last in- terpretation of the law by the last judge." Upon advertisements like these last quoted the student is asked to make his estimates of the necessity for digests, the Cycs, and notes to reports and the case law outputs. How successful, hawking off publish- ers' stuff upon the profession has been, is attested by the overcrowded shelves with ephemeral matter gouged out and set up by office hands and sold by sham and deceitful advertising. In many quarters the works last referred to are sold as elementary and philosophical works and are taiight as such in schools. These facts allow us to say that the student has no friends where Literature. — such treatment of him is permitted. (See Unfaie Trade.) Not one student in a hundred learns or hears of the addresses referred to while every one has the misleading ad- vertisements kept under his notice all the time. In every conceivable way these are crowded upon and kept before him. All must concede the power of advertising; it is a valuable business asset notwithstanding it is greatly abused. In no relation and relating to no other matter is the right to adver- tise more reckless and more abused than it is by the book factories in the law book trade. Turn as we may, and look, and we will see there is something wrong. Look at the addresses referred to ; also the advertising mentioned and we will see that the student is not well advised as to the troubles that beset his way. He hears so much about the cases that naturally he inclines to look to them for support. Now let us ask him to examine Gulling v. Bank, 29 Nev. 266- 280; cases, 89 P. 25; also Henry v. miUwrd, 155 N. C. 372, 49 L.R.A. (N.S.) 1-44 for some of the supposed "new" law that has come, and on the other hand, t^alle v. Oyster, 230 U. S. 165 and Vioksburg v. Henson, 231 U. S. 259. Now let the student turn and look at the Gulling and the Henry Cases and note that from irrelevant evidence pleadings were held waived, or in other words that irrelevant evidence will supply essential Pleadings. Also how to plead a contract ( see Contracts, where Weber v. Lewis, 34 L.R.A. (N.S.) 364, is cited and discussed). This is the "theory-of-the-case" doe- trine now prevailing in 38 of the Amer- ican states and is coming to be recog- nized in the Federal courts. As we shall see the Federal Supreme court is very plainly intimating that it is going to make a new departure. In Nalle v. Oyster and in Vicksburg, we are informed that a judgment de- pends upon its record — its Pleadings and will be construed and limited by these. Concede this (for it is right) and what will become of the judg- ments in Gulling and in the Henry Cases? Supporting the Federal cases are Palmer v. Humiston, 87 0. 401, 45 L.R.A.(N.S.) 640; Milbra v. Steel Go. — Ala. — , 46 L.R.A. (N.S.) 272, 277- 278. These cases and the Federal cases cited reaffirm Rushton v. Aspin- all and Bristow v. Wright, both by 154 THE LAW EESTATED Literature. — Mansfield and in Smith's L. C. 8th ed. L. C. 5, and 135, 3 Gr. & End. Some- times the late cases are like the old cases. Garrett. We have referred to cases which demonstrate Judicial Anarchy. Kow let us look at authors: To begin let us first read Story's § ]0, Equity Pleading quoted § 47 Hughes' Equity In Procedure, and next read the contradiction of this sec- tion in §§ 2310, 2311 Thomp.son's Trials quoted under the title Variance in the 4 Gr. & Eud. ; also note how Professor Pomeroy straddled these an- timonies in his §§ 533 and 546 in his Code Remedies (in these conflict- ing sections the student will be in- troduced to the struggle over Terha fortius in the various courts ) . Also note the implied denouncement of David Dudley Field in Tyler's Preface to Stephen's Pleading; also the im- plied obsecration of Charles O'Con- nor; also the indefensible screed of Justice Grier against the Code, and all in that Preface of irreconcilable instruction. Furthermore, herein, we are informed that Stephen is a fore- most juridical scholar. Now where are his pages that will throw light over any of the above contradictions? Where did he or any of his followers clearly explain why the general de- murrer cannot be waived? (This has become one of the leading questions of this generation, which is only one phase of Verba fortms.) On the con- trary did not Stephen becloud that question when he quoted with ap- proval what Serjeant Williams said of waiving substance in relation to Jack- son V. Peslced? (§ 117, Hughes Equity.) Now is Stephen on the side of Story or of Thompson? Did he not straddle like Pomeroy? And is Chitty any better? Is not the principle Ver- ba fortius accijypiuntiir contra profer- entem left in bewilderment and in quicksands by all of these authors? Did not all of them treat it as a mat- ter of local and fiat law? Which one of these authors clearly impressed that rule? See its discussion in New York in Clark v. Dillon and the cases pro and con which are beyond human mastery? And cannot Pomeroy be cited either way? Herefrom see why the Code has failed. In Baker v. Warner, 232 U. S. 583, 593 we are instructed that "new" and reformed rules of Procedure will be respected by the court in the future. Literature. — Now what is one of these oncoming rules? Who can guess? And can these supposed "new" rules be more than a see-saw of Verba fortius which has rent and distorted the Procedure of New York as is indicated on pages 9-16; 1564-1570 Bradbury's Eules of Pleading? It seems safe to say that the supposed "new" rules will simply be attacks from varying angles upon the principle of Verba fortius; also that these attacks will merely be in- fractions of the law. In Oarland v. 8. 232 U. S. 642 a new rule is applied that is a serious attack upon stare de- cisis. In this case it was held that a plea of not guilty need not appear from the right record. In other words that the record need not show an issue. This new departure is much opposed to many cases; also to P. v. Gray, 261 111. 140, 49 L.R.A.(N.S.) 1215; also ihmday v. Vail, L. C. 79, et seq., 3 Gr. & Eud. Whoever will look at the above au- thorities will see why a return to fundamental law is demanded. Look at the above questions and see if one of them can be settled by any book of the last generation? Look at Gulling; also Thompson's sections and see if these authorities can be reconciled with fundamental law. The question as to whether Pleadings are jurisdic- tional is one of the greatest of Pro- cedure {Nalle V. Oyster). Over it is raging Judicial anarchy. Finally look from the cases and au- thors above referred to ; also Campbell V. Consalus, and Clark v. Dillon and Tooker v. Arnoux (all Code cases) and with these in mind see the questions for review in the several law quizzers and if these are more than superficial. See if there is anything in them sug- gesting the maxims, the general prin- ciples and the leading cases. See if the matter commended by the Ameri- can Bar Association can be gathered and learned from the works last re- ferred to. From these facts are not the de- nunciations of the lawyer and of his establishments justified? And is not the student a victim of dupery and commercialism? See Preface, Bishop's New Criminal Law, pp. vi, vii. There is a logic, a philosophy and an identity of all systems of Procedure which fact ought to be impressed upon students. There are not sex'eral systems if only we look at the sub- stance and not form, ^'\'e are told that TEXT-mDEX 155 literature. — at the base of a sound knowledge of the law lie Pleadings. (Preface Gould Pleadings, quoting Coke.) Now this does not depend upon studying all of the supposed systems that com- mercialism and empiricism assumes to exist and are padding upon the stu- dent. There is an identity of all systems if only we look from substance and not form. To show this fact attention is called to §§ 1-13, Restatement. In these sections are the substance of all systems. To see this fact we have only to shut our eyes to the glosses of mountebanks and of local and pro- vincial intellects who write the law from cases and statutes and who con- fuse the general and the special de- murrer and consequently formal mat- ter with substance. In those sections it is shown that the general de- murrer, the motion in arrest, of Non obstante veredicto, the require- ments for the comity of courts, the Removal of Causes, of Appel- late Procedure, of the necessities to pass objections upon Collateral Attack of Res Adjudicata and of Due Process of Law all depend upon the same ra- tionale. (See 1 Gr. & Rud. §§ 83- 123.) The ease at law in Equity, un- der Codes and the Federal Procedure all rest upon the same bottom of Pleadings, — the mandatory record, and that this record in all cases is con- Btated upon the same principles, and Js construed by the same canons. The necessities of Res Adjudicata are de- manded and are conceded and are dic- tated by the state for its public poli- cies which are suggested by the maxim Interest reipublicce ut sit finis litium. (See 1 Hughes' Proc. §§ 121-146; also 1 Gr. & Rud.) The tests of a record to support a plea of Res Adjudicata are the same in all systems. These tests are meas- ured from the mandatory record and not from anything else. So we see that record a necessity for the de- mands of the state to properly evince the essentials to satisfy the state, which requires that its demands af- firmatively appear upon the face of that record and in strict obedience to the rule that, "What ought to be of record must be proved by record and by the right record." This record of the state for the state and by the state cannot be made out of, or aided or patched out by the statutory record, or by the stenographer's minutes, or literature. — oral evidence or proof aliunde, as is written, decided and contended for by the "new" school. (See Theoi-y of the Case; also Qulling; 1 C. J. Cyc. 66, 100; Aider.) The state peremptorily requires a record and that this record be con- strued by the rules prescribed by the state. This record and the rules re- ferred to are concerns of the state and its concerns cannot be waived. Alter- um non Icedere; Res inter alios acta. Interest reipublicce. Campbell v. Con- salus. Pleadings are required by the state to invest its courts with jurisdic- tion and that they may have a record and be bound by their record. And so we see that these pleadings are not a matter or subject of valid contract. Campbell v. Consalus. These pleadings are a part of the mandatory record and they must on their face show af- firmatively that they are sufficient to invest Jurisdiction and thus pass ob- jections upon Collateral Attack and satisfy the requirements of Res Adju- dicata and other Conserving Princi- ples of Procedure, inter alia. (§§ 1- 27, Restatement.) Such being the logic and the phil- osophy of the law why should not the Datum Posts of Procedure have been introduced and sufficiently dwelt upon to impress them in all Avorks of Evi- dence, Pleading, Practice, Trials and their related subjects and to rescue the law from what has come to be called the "legal jungle." How these requirements for the mandatory record have been written (and the teaching is no better) may be judged from the discussions relating to these records. (See Pennowfsky v. Coerver.) The views of the Feudal Lawyer may be judged from a quotation we sliall make from one whose reputation arouses respect and is next to Coke or Black- stone. We ask that the quotation we shall make be read along with § 10, Story's Equity Pleading which is quoted in § 47 Equity In Procedure. See if the latter section does not say all that the obsecrated Tidd said in his Practice at pages 919, 920, Vol. 2. This section has just been quoted and followed in State Bank v. W. U. Tel. — N. M. — , 53 L.R.A.(N.S.) 120, 126, 127, wherein the court holds that the general demurrer can be waived. This, commercialism claims, is the law (it being the last case). Story and the writers and judges who wrote and 156 THE LAW EESTATED literature. — spoke from the Roman deny that. And note how plainly Story said so. But the followers of Coke, Blackstone (§ 15, 1 Gr. & Eud.), Tidd, Chitty, Stephen, Gould, Pomeroy, cannot from all of their illumined works come to any other conclusion than appears on the pages last cited. Supreme courts familiar with Tidd hold that the general demurrer can be waived. It is not possible to state a sadder fact of the illustrious author. Here let us ask where, exactly where, in any of the works cited can it be made clear to the court last cited that Story is right, also the Code provision which provides that the general demurrer is always available and is not waived by the filing of an answer. (See De- murrer; Tooker v. Arnoux.) The State Bank Case can be cited to oppose the logic and the philosophy of Con- sensus. For this case holds that form- al defects waived by filing an an- swer or by allowing a case to be set down for trial may afterward be raised when evidence is offered. This view of allowing formal mat- ter to drag indefinitely through all times and at all stages is intimated in Tooker v. Arnoux which is extendedly mentioned under the title Codes. Here we will observe that formal defects in a pleading are of no greater conse- quence than is any other formal de- fect. Such defect is waived like any other defect. All formal defects are waived if passed for an instant with- out proper exception. The effect and operation of Consensus, is to waive all formal matters; this is the policy of the law. ( § 53, 1 Gr. & Rud. ) Stat- utes often reaffirm the policy referred to but this is not making new law. Had Tidd, Chitty and their followers have understood Consensus they would not have written passages like the one that next follows: "The parties cannot move in arrest of judgment for anything that is aided by verdict, at common law ; or amendable at common law or by the statute of Amend- ments ; or cured as a matter of form by the statute of Jeofails." 2 Tidd Prac. 9in. Now let lis ask what it is that is not amenable at common law. Does not Stephen inform us that a pleading subject to general demurrer is subject to amendment? See Stephen, pages 149, 150, quoted § 117, Equity In Pro- cedure. Also let us ask what is aided by verdict? (See Rushton.) As al- ready observed formal matters are cured by the operation of Consensus j literature. — therefore why mention the statute of Jeofails to the exclusion of a funda- mental maxim which that statute merely reaffirms ? Why make no men- tion of the logic and the philosophy of the law not even when it is most in- structive to do so? Also note the above quotation; it is the bud of it. Chapter X, Chitty's Pleading. Con- sider the above quotation with Clark V. Dillon and its cognate cases which expressly hold that the statutes referred to relate only to formal mat- ters and not to matters of substamee. MalUncrodt, L. C. 12, 3 Gr. & Rud. Indianapolis R. B. v. Horst, L. C. 223, 3 Gr. & Rud. And further that the statutes referred to mean nothing when read in the light of the logic and the philosophy of the law. But Feu- dal authors looked chiefly to statutes and to cases as the beacon lights to guide and to lead. They looked to the letter and not to the spirit. To illus- trate this fact we will state that had the learned commentator have said that the motion of Arrest like the general demurrer searched the record for suistance and not for formal de- fects he would have said equally as much as he did say. He also accentu- ated the fact that he was dealing with cases at law and not in Equity. Now why did he place needless limitations on his comments? And then Story said the same thing for Equity. Story spoke for jurisdiction — ^the general demurrer; now did not Tidd? The latter spoke for the motion in Ar- rest which is nothing more than a be- lated general demurrer. And should he not have plainly said so? Each might have stated that he was dealing with a broad, Universal, Constitution- al principle of the Roman law which equally applies to all systems and in all kinds of cases. But neither spoke as broadly and as deeply as he could have done. (See Oarrett.) Had he, then the Feudal follower would not be looking for the verdict to place the aider upon, but he could see that the order of assessing damages, or the findings of the chancellor all meant the verdict. See Rushton. The further quotation is nothing more than the Trilogy of Procedure in a contradictory and equivocal way. See how plainly Frusta prohatur quod prolatum non relevat can be picked out. Had this maxim been merely cited it seems doubtful if Judge Thompson could have attained a fore- TEXT-IIsTDEX 157 Literature. — most place as a great author for a full generation. (See his §§ 2310, 2311, 2 Trials quoted under the title Variance, 4 Gr. & Rud. ; also "Theory of the Case.") In effect Tidd said that what is not alleged cannot be proved. He agrees with 1 Gr. Ev. § 63-65. These deny that irrelevant evidence will sup- ply allegations. Utile per inutile non vitiatur is cited by Tidd, 2 Prac. 920. But why did he not cite the Trilogy of Procedure? In effect it can be picked out by one familiar with it from what we next quote although so many supreme courts have failed to do so. See Gulling and its cluster of cases; (also the Trilogy of Procedure, §§ 1- 13, Restatement). We have referred to Story, to the Trilogy of Procedure (§§ 1-13, Restate- ment) to Bushton V. Aspinall, L. C. 5, 3 Gr. & Rud.; and to the Codes and Practice Acts requiring that a "cause of action" be stated {Cockerell, 50 L.R.A. (N.S.) 1), also to the necessity for this deduced from the requirements of Collateral Attaclc, and Res Adjudi- cata. (Nalle v. Oyster; Vicksburg v. Benson; Palmer v. Humiston and Mil- ira V. Steel Co.) Here are four ways of teaching why it is that a "cause of action" must be stated in order to attract jurisdiction to a subject mat- ter. We will now quote from him who has so long sat ex cathedra to the Feudal followers and those who con- tend that each system of pleading is a law unto itself and who have never written that there are a few Universal, Constitutional principles that are common to all systems. To lay the foundation for important interroga- tories (see Pleading), we will now further quote from Tidd's Practice : **At common law, when anything is omitted in the declaiatlon though it be of sub- stance (suhstance) , if it be such as that, without proving it at the trial, the plain- tiff could not have had a verdict, and there is a verdict for the plaintiflC, such ociission shall not arrest the Judg- ment. This rule however Is to be un- derstood with some limitations ; for on looking into the cases it appears to be that where the plaintiff has stated his title or ground of action defectively or inaccurately (because to entitle him to recover, all circumstances necessary, in form or substance {substance), to com- plete the title so imperfectly stated, must be proved at the trial). It is a fair pre- sumption after a verdict that they were proved ; but that where the plaintiff to- tally omits to state his title or cause of action, it need not be proved at the trial, and therefore there is no room for presumption. And hence it is a general rule that a verdict will aid a title de- fectively set out, but not a defective title Literature. — or In other words nothing is to be pre- sumed after verdict, but what Is express- ly stated In the declaration or necessarily implied from the facts which are stated. Thus where the grant of a reversion was stated, which could not take effect with- out attornment, but being a necessary ceremony, might be presumed to have been proved. But where, in an action against the endorser of a bill of exchange, the plaintiff did not allege a demand on and refusal by the acceptor, when the bill became due, or that the defendant had notice of the acceptor's refusal, this omis- sion was held to be error and not cured by the verdict. For in this case it was not requisite for the (2 Tidd, 920) plain- tiff to prove either the demand on the ac- ceptor, or the notice to the defendant because they were neither laid in the declaration nor were they circumstances necessary to any of the facts charged. So, where the declaration in debt for tithes on the Statute of 3 Edw. VI. c. 13, § 1, omitted to state that the tithes had been all paid, and of right ought to have been paid within forty years next before the passing of the Act, the court held tliat it was defective even after verdict and the judgment was arrested." Gar- rett. Did not Tidd overlook the maxim Ex- pressio eorum quwtacite nihil insunt operatur (things implied need not be mentioned) ? To illustrate: If the grantee averred tliat he contracted for the property and that under and in pursuance of this contract tlie grantor put the grantee into the possession of it and that the grantee has ever since occupied and enjoyed and used the property under tliat contract will it not be presumed that the grantee made, executed and delivered good and sufficient deeds of conveyance or writ- ten contracts to satisfy the statute of frauds? See Dohson v. Campbell, L. C. 232a, 3 Gr. & Rud.; Lester v. Fox- croft, L. C. 341, 3 Gr. & Rud. On gen- eral demurrer would not such allega- tions be sufficient? TJt res magis va- leat guam pereat. And if such allega- tions should be held indefinite or too general in any court or kind of a case would the objection to them be more than formal? And would not they be waived the instant they were passed without prompt and precise objection? Consensus tollit errorem. 'iliere are principal allegations from which minor ones will be inferred and this view is supported by the cases last cited. But these minor allegations are not sub- stance. It is doubtful if they would be regarded as more than formal in any relation. Tidd assumes that such allegations would be substance at the stage of general demurrer but would not be substance at the motion of Ar- rest. A careful reading of this page 158 THE LAW KESTATED literature. — [920] above quoted certainly justify these observations. And anyway it is apparent that Tidd and his foUovi'ers have paid no technical regard to the logic and the philosophy of Consensus. For they constantly treat this maxim as one of statutory regulation also capable of being augmented to any ex- tent in its efficiency and operation. Elsewhere we have more fully ex- plained this. Here let us ask what it is that the above quotation says beyond the few clear, unambiguous and unequivocal and uncontradictory words of Story which hold that a bill in Equity must on its face, affirmatively show a "cause of action ? " Now who wrote best, Story or Tidd? Does the above quotation say more than this: That the statement of a "cause of action" must be stated with sufficient certainty to satisfy the re- quirements of the general demurrer and of all of its correlatives to and including Collateral Attack and Res Adjudicata? (Halle v. Oyster and cases cited therewith : Tooker v. Ar- noux.) Davis v. Jacksonville Line; Minnesota, 194 XJ. S. 48. Why should not the requirements of a, pleading to pass objections at the stage of the motion in Arrest, and of JVoji obstante veredicto, and Appellate Procedure, and Collateral Attack, and of Res Adjudicata and of Due Process of Law be introduced and discussed as broadly and as deeply as all of these matters? Are they not all involved? And is there not an identity of the elements of all of these matters when viewed from a jurisdictional view- point? (Nalle V. Oyster.) Why did Tidd and his followers omit all refer- ence to Appellate Procedure, Collater- al Attack, Res Adjudicata and Due Process of Law? Should not all of these authors have barred the way of holding that there are fluctuating rules of construction and that at the stage of Appellate Procedure more liberal rules prevail to uphold the Pleading than at the stage of the general demurrer? {State Bank, 53 L.R.A.(N.S.) 120, 126-127.) And that at the stage of Collateral At- tack still more liberal rules obtain? That the above quotation does not mark the extreme limits of liberal con- struction? {Dobson V. Campbell, L. C. 232o, 3 Gr. & Rud. ; Goldham v. Ed- loards.) That there are no more lib- eral rules to uphold a pleading at the Literature. — motion in Arrest than obtains at the stage of the general demurrer? (See Baker v. Warner.) That the above quotation does not stand for the new view that proofs may go beyond the allegations? (See Gulling and its cluster of cases; also 1 Gr. Ev. 03; Garrett; Frustra probatur quod pro- batum nan relevat; the Trilogy of Pro- cedure, §§ 1-13, Restatement.) Had any of these authors set forth the Trilogy of Procedure (§§ 1- 13, Restatement) and have commended these maxims could the profession have wandered and have wabbled round and round as it has? {See Gulling; "The- ory of the Case.") Is the above quotation consistent, comprehendible and have authors and courts drawn right conclusions from it? If one matter of substance can be waived then cannot all matters of sub- stance be waived? And if so, is it not true that the general demurrer can be waived? (See Nalle v. Oyster.) Need there be a presumption of wliat is expressly stated? Are not the limits of liberal pre- sumptions shown in Dobson v. Camp- bell; and Rushton v. Aspinall? Do not the cases Rushton v. Aspin- all, L. C. 5, et seq., 3 Gr. & Rud., clear- ly and impressively teach the matter discussed by Tidd in the above quota- tion? Looking from these cases was he deep and broad enough? A leading feature of the above quo- tation from Tidd is that his passage can be construed to apply to cases at law only. He certainly leaves the view open that it takes a verdict to supply the pleadings. Therefore the findings in Equity, or the award of damages, or the entry of a default, or the assess- ment of damages or other final proceed- ing would not invjke the law of waiver as a Verdict will. (See Henry v. Hil- liard cited under G-idling, also Lester. ) Tidd was also a "case system" advo- cate, for after getting into contradic- tion and equivocal and ambiguous statements he flies to the cases and statutes for the big trees in the "jungle" and by the blaze of these he tries to clarify the situation. But does he do it? Has he done it? He first lays it down that substance can be waived and after this disrupting statement he tells us that it must be limited by what the cases decide. Among these he states Rushton which is the commercial paper case he cites. Mansfield whom the Tidd school hated TEXT-INDEX 159 Literature. — so much decided Rushton which shows on its face that a verdict would not supply the allegation of a scienter in a suit to recover for injuries by a sav- age domestic animal (a bull case). There was no express allegation of the scienter and the verdict could not sup- ply it. And such was the holding in Van Leuven v. Lyke, N. Y. (a hog case). This element the courts re- fused to presume in the absence of an express allegation. Of this Tidd says "nothing is to be presumed after ver- dict but what is expressly stated in the declaration or necessarily implied from the facts which are stated. Here had he cited the Trilogy of Procedure he would have moored his argument to the Datum Posts of all systems, in all civilized governments, in all climes and under all skies and in the language of all nations. Mansfield studied the maxims and like Story he made few mistakes. To him the law was not statutes and cases as it is to the Feudal Lawyer and his followers. See how Tidd instructs and compare with the instructions of Festus to the Scribes and Pharisees in Saint Paul's trial in the Acts of the Apostles. Now was Tidd a good construction- ist when he failed to state that when a pleading is construed for substance as it always is on general demurrer that the construction is to conserve and not to destroy. TJt res magis valeat quam pereat. (See Gompers, 33 App. Cas. D. C. 574, cited anent the maxim Ut res. Restatement. The at- titude of the crown (state) dictates this construction (Alterum) , and this canon is applied on down at all stages to and including Res Adjudicata and estoppel and on Collateral Attack when the record is offered to prove title to property. At all stages this canon is the same without augmenta- tion or diminution. Any other view would make of the law a snarl as dreadful and as hateful as the tangle of a thousand snakes. Such being the law why did he not so state ? ( See what has happened the discussions of Verba fortius; Baker v. Warner; Goldham v. Edwards; Clark v. Dillon and its cognate cases.) "When its philosophy is lost the law is lost." What is presumed for a record to uphold it is a question of Evidence. (See Presumptions.) Tidd can be cited to the point that the law is an entirety for in his passage on Prac- Literature. — tice he includes Evidence, Pleading, Construction, maxims, leading cases, commercial paper, real estate inter alia. (See Bishop New Crim. Law, Preface pp. vi. vii.) Here let us ask if Tidd cannot be cited in favor of a Restatement of the law whereby from a nucleus of a few principles the entire body of the law can be brought into touch? Cer- tainly he could be so cited if only he had cited the major-organic maxims which he paraphrased into English. For in effect he says what one does allege he cannot have; nor can he prove; and that his pleading is construed against him. ( Verba for- tius.) Failing to be so clear as he might have been has paved the way for Thompson and the "theory-of-the- case" school to deny the maxims re- ferred to. (See Story.) We have indicated the importance of Pleading as a basic branch of the law ; and which has no more important rule than that discussed in the above quo- tation from Tidd. This is a rule of Construction and profoundly involves Verba fortius, one of the maxims of the Trilogy of Procedure. It also ex- tends into the titles of Real Estate when it has been sold on execution and judicial sales. (§ 20, Restate- ment.) Accordingly we indicate the importance of what usually is classed as a trite and common place rule of Pleading and of Aider. Here let us ask if this very important rule can be well taught from Tidd and his fol- lowers who have merely parroted the above quotation? Certainly the Cy- clopedia authors do not understand these followers of Tidd; for we are informed in the 6 Encyc. PI. & Prac- tice 384 that the general demurrer can be waived; which is quoted and fol- lowed in State Bank, 53 L.R.A.(N.S.) 126; also in the Merchant's Co., 42 L.R.A. (N.S.) 996-098 (departures are allowed) 6 Encyc PL & Prac. 468 (de- partures a subject of general demurrer but they can be waived ) . Now look at Tidd; also these cases and consider whether or not the important branch of Pleading can be learned from such antinomies. All of these matters are related to the question in Culling and its cluster of cases. Only look from all of these and see if the fundamental idea can be gathered and compreliend- ed by the student. See how the courts are misled by the authorities cited. Now can the supposed great and illu- 160 THE LAW KESTATED Literature. — mining works of the generation lead the student from the mire of bewilder- ment? Look at the Form books, the Horn books, the Quizzers, the Cycs, the notes on sets of reports and the Digests and the conflicting cases and see if the meaning of the Trilogy of Procedure and of Story's section re- ferred to can be clearly taught from their much esteemed works. Look at both the Trilogy and the quotation from Tidd and see if the maxims are not far more instructive. Do not they surpass any matter that can be defined from the High Court of Chancery, and the rules, and ordinances of any court or legislature? The well instructed student is taught that the general demurrer can- not be waived. He is taught this from the organic maxims; also from Story. (§§ 1-13, Restatement; Valle v. Oyster.) He is taught that a juris- dictional pleading must be sufficient upon its face, and that it cannot be aided from other documents and other records. Uondel v. Steel, L. C. 77, 3 Gr. & Rud. See Aider; Jackson v. Pesked. But Serjeant Williams in a note to Btennell v. Bogg said that substance could be waived. Of course a general demurrer has no application to formal matter, nor has the special demurrer any relation to substance. (See Jack- son V. Pesked, cited by the common- law authors.) They are different things and one cannot be waived while the other can be waived. The special demurrer is waived like any other formal objection by the operation of Consensus tollit errorem. But this maxim has nothing to do with sub- stance and therefore with the general demurrer. But it does have something to do with the special demurrer. What we next observe is most important: The rule that "filing an answer to the merits waives the demurrer" is strictly correct so far as the special demurrer is concerned; but this rule has no ap- plication to the general demurrer for the very plain reason that a pleading vulnerable to the general demt-rrer has no merits. It is offensive to the at- titude of the state. Alterum; Quod ah initio. (§§ 1-13, Restatement.) A pleading without any merits can have no answer to it filed. (See Henry v. Billiard, cited with Gulling; also Bushton.) The Code very plainly reaffirmed the law of the general de- murrer as above stated. Story, the Code and the Criminal practice are Literature. — in accord. It is the case at law that is in disaccord. (See Garrett.) But not in all cases (see Rushton) . More cases can be found in all jurisdictions upholding the true rule than can be found opposing it. Nalle v. Oyster; Palmer v. Eumiston; Milbra. It is the minority case which holds that if there is an omission of a material al- legation that it is supplied by a pre- sumption that "it was proved and that the verdict cured it." See Aider. Tidd informs us that nothing can be proved that is not alleged. 2 Tidd Prac. 919, 920; also Greenleaf, § 63; and so we see that Frustra probatur quod probatum non relevat is to be respected; Garrett. Here we ask what room is there for presuming that an allegation of substance was proved when it was not alleged? Must not allegata correspond with the probata and vice versa? To be clear, we con- cede that if secondary facts are omit- ted but are included within major or controlling facts as in Dobson v. Caanpbell, that then the lesser facts may be presumed to have been proved. But even then the lesser facts are really disposed of by the maxim Utile per inutile non vitiatur. In other words the facts that are pre- sumed are not in the last analysis ma- terial facts at all; for they were in- eluded within the major facts that are alleged. Omne majus continet in se minus. Now this is the way of the case, Dobson v. Campbell, L. C. 232a, 3 Gr. & Rud. This case was de- cided by Story and he also wrote the sections which we so often cite with approval. And he also introuuced and correctly said something of Res Adjudi- cata. (§§ 790-794.) But Tidd and his followers omitted all reference to Col- lateral Attack, Res Adjudicata; and Due Process of Law. Now what kind of a time would arise if we sought to prove a fact adjudicated {Cromwell v. County of Sac, L. C. 26, 3 Gr. & Rud.), under the loose and equivocal rules of Tidd and his followers? (See Mondel V. Steel, L. C. 77, 3 Gr. & Rud.) ; and what would be the clash with the rules of Res Adjudicata when it was sought to prove by presumptions what the al- legations were? The dreadful condi- tion shown from the Duchess of King- ston's case, L. C. 76, 3 Gr. & Rud. will illustrate. All must admit that the law of Collateral Attack, Res Adjudi- cata, and Due Process of Law is ju- dicial anarchy. See how the latest TEXT-INDEX 161 Literature. — books instruct ua how to prove the identity of causes, 1 C. J. Cyc, 66, 100; Gulling. The facts show that the rule is taught that the general demurrer can- not be waived, while at the same time it is taught that the motion in arrest is governed by far more lib- eral or loose rules than is the test of the pleading at earlier stages. The case of Baker v. Warner may be cited to sustain the last proposition. Now it is quite common for a court to say your objection that the pleading is in- sufficient comes too late for had you made your objection earlier then the pleader could have amended; we con- cede the pleading would be bad on general demurrer but the defect is cured by the failure to object. Now this is one way of waiving the gen- eral demurrer. It seems well to quote some of the decisions that have come showing how the old rules are silted over with er- ring reasons, which seem to emanate from the views of Serjeant Williams in a note to Stennell v. Hogg. Tidd quotes this language with approval at pages 919, 920, 1 Practice of Chitty a;nd Stephen follow Tidd. In Baker v. Warner it seems to have been admitted that defects vulnerable to a general demurrer must be raised thereby if one would escape the more liberal rules of the motion in arrest. More plainly still is Buxton v. Rudd, 41 App. Cas. D. C. 353, 357. This case is founded on Schvyartz v. Reesch, 2 App. Cas. D. C. 440, 447, which cites atennell v. Hogg (substance can be waived) ; also quotes Serjeant Wil- liams. Schwartz cites Merrick v. Trus- tees, 8 Gill, 59, 75 (after verdict a defective allegation in the declaration cannot be taken advantage of though it might have furnished good cause of de- murrer. Vandersmith v. Washmeme, 1 Har. & John. 4). "Whatever might have been relied upon to defeat the action must be intended to have been proved at trial after verdict." 7 Smedes & Marsh, 49; 8 Id. 562; 2 Gilman (111.) 307. "The petition would have been clearly bad on demurrer, but It was cured by the verdict. Warren v. Harris, 2 Gilm. (111.) 307, 311, cited in 8 Gill, 75. The practice in Illinois is peculiarly local and fiat. It is a practice con- stituted of statutes and of cases. ( See Title, Illinois in Equity In Procedure. ) In that state it has been held that if a general demurrer has been overruled, that it cannot be renewed in any other Literature. — form in the same court. This fact well illustrates that the general de- murrer and its jurisdictional func- tions are not well comprehended in that state. If at the stage of the general demur- rer we have one test and at the stage of the motion in Arrest we have an- other test to determine whether or not a "cause of action" is stated then what becomes of the rules of certainty of which the Feudal authors dis- cussed ? Supposing that one is examining a record to determine its sufficiency to support a judicial or execution sale or a plea of estoppel of record, how could he determine which set of rules to ap- ply? A rule of Res Adjudicata is that the allegations shall be certain and that nothing shall be taken by intend- ment; now, would not the pleading at the stage of Res Adjudicata be judged exactly as at the stage of general de- murrer? Now what shall be said of the logic and the philosophy of pro- cedure where at the various stages it allows different sets of rules of Con- struction? And would this fluctua- tion satisfy the Universal, Constitu- tional rule of Verba fortius? See Rushton. In the Restatement for the logic and the philosophy of Procedure we in- vite entirely different views to Ser- jeant Williams, Tidd and their fol- lowers. Such are the Antinomies. The stu- dent must look and judge for himself. Verba fortius and its cognates give the tests of the general demurrer and its Correlatives. (See Restatement.) These tests often involve Aider and its phases which are elsewhere introduced and the keys thereto stated. Among these are Rushton, Dobson v. Camp- bell, and Goldham v. Edwards. The latter case holds that the same tests apply at the motion non obstante vere- dicto (Arrest), as do on general de- murrer. This view is philosophical and is dictated from the attitude of the state in Procedure which was never comprehended by imperialism and its successor Feudalism. Alterum. All must concede that the same tests gov- ern at the stage of Res Adjudicata (see Res Adjudicata and its rules, 4 Gr. & Rud.) as do on general de- murrer. Here let us ask where be- tween the general demurrer and Res Adjudicata that it is that the liberal rule (Ut res magis) is minimum and 162 THE LAW RESTATED literature. — where maximum? Goldham v. Ed- wards (1856), 18 C. B. 139, 139 Kng. Reprint, 1420, shows the struggle, of the Feudal courts to vindicate Verba fortius. This was done but as it was done in Clark v. Dillon and its cog- nate cases. It was a paraphrase that was stated and applied. Had it been stated in the language of all nations much would have been done for the logic and the philosophy of the law. Then the principle could be seen as a gift from the Roman and not from "Com. Dig. Pleader, E. 6" which the court cited in Buxton. It also held that formality was not essential on general demurrer, thereat, only sub- stance would be consulted; that the substance must be perceivable and clearly enough stated. Had the court said: He must construe this plea as it will be finally construed at the stage of Res Adjudicata whereat the rule is a paraphrase of Verba fortius then it would have been a case to which the editors of Tidd and his followers would have come when it was much needed for the facts show that they have wabbled all around the vital, major, organic rule in- volved. At it has been in America so it was in England where there was too much parroting of Tidd and his followers. (See Nallej Baker v. War- ner.) Ooldham is a cognate of Bushton (by Mansfield) L. C. 5, et seq., 3 Gr. & Rud. ; also Dobson (by Story) and Campbell r. Consalus (N. Y.). These cases if connectedly read will be very instructive. The Feudal followers were not partial to Mansfield and hence they preferred Serjeant Wil- liams, Tidd, Chitty and their follow- ers. The cases preferred by these were Jackson v. Poshed; Stennell v. Hogg; Spieres v. Parker anil other cases that would permit of a bewildering Con- struction. The Feudal motto that "Parliament is omnipotent" must not be circumscribed by cases that would lead to that end if the major-organic maxims were cited. That motto de- pends upon courts and authors who ignore and denounce the Trilogy of Procedure. ( See observations under the title Nalle v. Oyster.) While Procedure was founded upon such still these were never cited nor explained as the higher law of Pro- cedure. Plainly to do so would not have been pleasing to Imperialism, Feudalism and other forms of absolute power. Hence from Feudalism there Literature. — have gradually come various theories that have misled and dragged the legal profession down into bewilderment and all of the sloth and confusion that now holds it back. To illustrate we shall refer to Goldham. Suppose that the court in Goldham had said that it is axiomatic that the general demurrer cannot be waived. This is a rule for protection from usur- pation and abuse of power for the limitations of jurisdiction are to be found in the Pleadings. Campbell v. Consalus. The record must show what a court acquired jurisdiction of and that it entered a judgment in con- formity to the Pleadings. (Munday V. Vail, L. C. 79, et seq., 3 Gr. & Rud. ; Vicksburg v. Henson; Story; Rush- ton) . If a court had no record, then an ignorant or a mischievous court might from caprice or whim become a devilish court. (See Gulling and its cluster of cases. Judge Talbot in Gulling spoke for protection from records; and so did justice Field in Windsor v. McVeigh, L. C. 1, 3 Gr. & Rud.) Knickerbocker. Protection in judicial operations de- pends upon a few fundamental maxims well comprehended and worked out. One of these is the maxim Verba for- tius. Upon this maxim the rules of the general demurrer depend. The King (Crown or State) has interests in Procedure and these interests are vindicated by the general demurrer; and these interests are the same at all stages and therefore the rules, the tests of the general demurrer are the same at all times, places and stages. Alterum; Res inter alios acta; Inter- est reipublicw ut sit finis litium. Therefore the footing of the general demurrer is the same at all stages. It does not fluctuate. The rules of the general demurrer are strict for substance at the beginning and they are strict at the end and these rules are the tests of Res Adjudicata. These do not involve form. The quest for Due Process of Law are the same tests. From antiquity the maxim comes that Pleadings are construed most strong- ly against the Pleader. Bacon's Or- dinances respected this maxim which is reafllrmed in the rules of Pleading in Comyn's Digest. The harmonv, symmetry, and congruity of Procedure depend upon respect for that maxim and its cognates. (§§ 1-13, Restate- ment.) Should we depart from it after the stage of the general demurrer TEXT-INDEX 163 Literature. — and apply still more liberal rules at the stage of Arrest and another test at the stage of Appellate Procedure {State Bank, 53 L.R.A.(N.S.) 120, 126-127) and still another at the stage of Collateral Attack and then at the stage of Res Adjudicata return to the tests of the general demurrer we would destroy the logic and the phil- osophy of the law and make of Pro- cedure nothing more than a mass of conflicting statutes and cases. It would be nothing less than absurd to apply different rules of protection of the states' interests at each of the stages wliere the Crown's interests should be sua sponte looked for and safeguarded. Ubi eadem ratio iM idem jus. For identically the same reasons the mandatory record is construed throughout alike by the major, organ- ic maxims of Procedure. High laws, the Prescriptive Constitution require this record; it exists from necessity and it is above local and fiat laws. It exists, inter alia for the purposes of Res Adjudicata (1 Gr. & Eud. §§ 83- 123), and the Removal of Causes. It cannot be expressly contracted away. Campbell v. Consalus. E converso it cannot be impliedly consented away. To hold otherwise would be as a Jug- gernaut of chaos driven into the heart and vitals of Procedure. (See the titles New York, Illinois, and Mis- souri in Equity In Procedure.) The conclusion of law cannot pass the general demurrer. Rushton i. As- pi/nall, L. C. 5, et seq., 3 Gr. & Rud. Now how can it pass the motion in Ar- rest? Or the requirements of Appel- late Procedure? Or objections on Collateral Attack ? It cannot pass the rules of Res Adjudicata. (See these rules, 4 Gr. & Eud.) The above views are dictated from the Trilogy of Procedure (§§ 1-13, Ee- statement) ; from Mansfield's and Story's decisions, inter alia. The student should be familiar with Rushton V. Aspinall, L. C. 5, et seq., 3 Gr. & Rud.; Dobson v. Campbell, L. C. 232a, 3 Gr. & Eud. ; Jackson v. Pesk- ed, Stennell v. Hogg, Spieres v. Park- er and note the preference of the fol- lowers of Tidd and Chitty for the Jackson, Stennell and Spieres Cases. These cases can be reasoned out right hut after conceding this only note how the "theory-of-the-caso" doctrine took root and has developed as is shown in Gulling and its cluster of cases Literature. — alongside Tidd and his followers. The various works on Pleading may be judged by their citation and treatment of these cases. Also note the preference shown these cases over the maxims. If these cases were comprehendihle why have not the great authors of a generation comprehended them? (See Story.) The facts certainly stand out that these cases were at least hazy and confused to the "theory-of-the- case" authors and courts. A"nd wlio can deny that Serjeant Williams showed his ignorance of the logic and the philosophy of the law when he wrote that substance could be waived. And was not Tidd and his followers equally befogged? And did not all of these authors show a preference for local and Feudal authorities? Did not they write the law from eases, statutes. Digests and Abridgments, — the Cycs of another generation — in- stead of from the maxims? Compare their efforts with what is shown in the Restatement. Compare the above observations with Sloeum v. Ins. Co.; Baker v. Warner; Vicksburg v. Eenson; Nalle V. Oyster; Buxton v. Rudd, 41 App. Cas. D. C. 353, 357; Garrett. Also note that Serjeant Williams is quoted numberless times to Story's once. Story certainly wrote great sec- tions, but did Tidd? There is a world of difference between Story, Tidd and Thompson and certainly every lawyer should know what that difference is. We can look and see how the max- ims express the rules of the general demurrer and how paraphrases of these maxims are the fundamental rules of Collateral Attack and Res Ad- judicata; also how Story stated these rules at the beginning and how T^dd stated them at the stage of Arrest; what he said we have quoted. AIsd how Mansfield stated these rules in Rushton; and how the statutes, the Codes express the same rules in legis- lative language. {Cockerell, 50 L.R.A. (N.S. ) 1-32.) The code language is clear and peremptory in reaffirming Quis, quid, coram quo. (See Restate- ment. ) Here let us ask if the Gulling cluster of cases accord with any of the above expressions or requirements? The test for the "cause of action" ("title or causi' of action," Tidd calls it) is, will the statement pass the general de- murrer. Leading the way of this 164 THE LAW EESTATED Literature. — test is Terha fortiiis. Construction of the Pleading at the stage of the general demurrer for certainty and for Jurisdiction is as broad and as deep at that stage as it is at any other. Ooldham v. Edwards. Ut res magis valeat quam pereat is the rule on general demurrer and this rule never varies as Tidd and his school teaches. For he certainly stands for the idea that It is at the stage of Arrest that the court will do every thing that it can to uphold the pro- ceedings. The struggle over this ques- tion is simply bewildering in the late cases. Slocum v. Ins, Co.; Baker v. Warner; State Bank, 53 L.E.A.{N.S.) 126-127. Why did Tidd reserve his broad liberal rules for the stage of Arrest when the same rules apply on general demurrer. Rushton L. C. 5, et seq. 3 Gr. & Rud. The rules he attempted to lay down for this stage equally apply at all stages where the Pleadings are opened. Nalle v. Oyster. But the facts now stand out showing that Tidd, has impressed the courts in each generation to the contrary and the late cases are nothing less than savage attacks upon the logic and the philosophy of the law. 53 L.E.A. (N.S.) 120, 126-127; Oulling; And the popular and prominent authors of this generation occupy extremely ad- vanced grounds in these attacks. (See Story.) Ut res magis valeat is the rule of liberal Construction (Equity In Pro- cedure, 101, 283-293). Its cognates are Consensus tollit errorem and Om- nia prcesumuntur rite. This trio of maxims is all that Tidd discussed at pages 919, 920, and might not he have said so to have cleared his hazy pages? But instead he cited statutes and cases and as to these did he not wabble and stumble over great prin- ciples without clearly perceiving them. He discussed the rule of the general demurrer at the stage of Arrest and thought that the rules at these re- spective stages were individualistic and singularly different. His manner of reasoning is like that in the cases above cited. He did not cite and ex- plain the maxims which are the bea- con lights of all ages and are the great and everlasting principles that constitute the higher law and should be so taught. Would Story or Mansfield or Kent Literature. — have construed away from the clear and positive language of the Code? Look from their cases and sections and judge. (See Story; liushton.) Look from Gulling and its cluster of cases and see what has come to pass. And did not Bacon prophesy what Feudal- ism would demonstrate? "Remove not the landmarks which thy fathers have set." Looking from the lawyer's litera- ture the call for "revolution" is war- ranted. Fifty years ago possibly there was some defense for directing a stu- dent to study the statutes and reports of his state to prepare himself for practice. But that advice could not be defended to-day. Look at the con- dition indicated from- Gulling and its cases; also the "Theory of the Case." From such matter no lawyer caa arise. Look from the maxims in the Restatement to the sections of Thomp- son and the "new" school mentioned under the title Story. Look at the pages of Tidd and his followers. Look at the fundamentals stated in the Re- statement and see how these are treat- ed by the Feudal authors. Now the students are studying decisions from judges who arise at banquets, who ex- press confidence in the ship of state holding together until they are gone, and then they say that "after us the deluge," also of authors who denounce Story, Greenleaf, Bishop and Carter. Those who have been misled and deep- ly injured by the writings and the teachings of a generation may find words from another epoch which we quote : "So I returned and considered all the oppressions that are done under the sun ; and behold the tears of such as are oppressed, and they had no comforter ; and on the side of their oppresser there was power, but they had no comforter." Ecclesiastes, IV. 1. "Woe unto you lawyers ! For you have taken away the key of knowl- edge ; ye entered not in yourselves, and them that were entering in ye hindered." St. Luke, XXI. 52. The restless suffering masses have vainly looked to the lawyer for guid- ance and uplifting. Now they have come to be viewed as sleeping senti- nels in the watchtowers of liberty. National life and progress depend upon the lawyer and his establish- TEXT-INDEX 165 Literature. — ments. Now what lias he done and what is he doing? Can he defend his literature? Multitudo imperitorem perdit cur- iam. LOBBYING CONTRACTS: Trist V. CMld, L. C. 113, 3 Gr. & Eud. In pari: 6 R. C. L. 731. tOCUS PCBNITBNTI^: Diggle v. Higgs^ L. C. 371, 3 Gr. & Eud. rOGIC AND PHILOSOPHY OF THE law. If the law has a logic and phil- osophy then it has a thread that leads through the labyrinth. See Sees. 1- 26, Restatement. And if it has such then that is the thing to seek and to hold. If it has such, then this is a fact of first importance. It seems fair to say that the law has such, for the idea that it is only a lot of statute and cases is neither inviting nor sat- isfactory. We assume the contrary and also the onus of demonstrating the fact. To do this we have to begin and make a clearing and choose sal- ients from which the fact can be per- ceived. For the argument it seems best to ally ourselves with the views of others if possible. We therefore choose that view, that procedure lies at the base of the law. (See Preface Gould's Pleading.) Procedure is dif- fused throughout all parts of the law. It arises at the fountains of the law — at its great maxims. To indicate this fact attention is invited to what is ob- served anent Alterum non loedere. This is a part of the maxim from which it has been long said that the entire body of the law can be articu- lated.. So far, we are allying ourselves with the views of antiquity. And here we properly observe that the ancient did more for the law than the Feudal author. Bacon did far more for jur- isprudence than did Coke and his fol- lowers. Those who viewed the law as a local and fiat institution could not grasp nor understand its philosophy. The great central ideas from which the logic and the philosophy of the law must be discovered and traced are not Feudal but they are Roman. We have mentioned one of these, and reference is made to it to illustrate the question in hand. Melius est petere fontes quam sec- tari r'wulos. Non in tabulis est jus. Having estimated the importance of Procedure we naturally select it as the central or leading subject upon Logic, etc. — which to make the demonstration and also seek the few fundamental prin- ciples that underlie that subject. It has long been said that the en- tire body of the law rests upon a few fundamental principles well worked out and comprehended, and if so, then Procedure can have for its demonstra- tion not many but only a few. To demonstrate its fundamental lines we shall employ not more than ten. And these will be related to and intro- duced from the greatest maxim of jurisprudence — the lawyer's "Golden Rule" — Alterum non Iwdere. From this grand old principle we shall seek the thread referred to. By reference to this maxim we are introduced to other maxims of wide sweep and of such utility in master- ing the law. And chief among these are the Trilogy of Procedure: 1. De non apparentibus ; 2. Frustra proba- tur quod probatum non relevat and 3. Verba fortius accippiuntur contra proferentem. From this trio of max- ims arise and flow on down innumer- able rules of Pleading, Evidence and Practice. The operation of these prin- ciples depends upon certainty and for this there must be a record and hereat for such certainty and for the opera- tion of great principles we introduce the mandatory record, — the record of substance. This is the record that the State requires to evince the Coram judice proceeding, which is so im- portant in tests of Ses Adjudicata al- so "Due Process of Law." At one end of this essential record we have the general demurrer, the motion in Ar- rest, ^'on obstante veredicto, orders of Repleader, Appellate Procedure and Collateral Attack. We often refer to all of these as the general demurrer and its Correlatives. In each succeed- ing stage the matters of the general demurrer so to speak, telescope. So we have the General demurrer in Res Adjudicata, Collateral Attack and "Due Process of Law" and this fact must be admitted, or on the other hand it must be maintained that the general demurrer can be waived. But the rule of all protecting systems is that the general demurrer cannot be waived. That the general demurrer searches the entire record (essential Pleadings) and attaches to the first fault. It does not attach to the second fault. The rule calls for and attaches to the first fault. If the indictment is lacking in substance — if it lacks 166 THE LAW KESTATED Logic, etc. — any one allegation of substance then the inquiry ends right then and there. And generally this is conceded in the criminal case. XJ. 8. v. Cruikshank, L. C. 232, 3 Gr. & Rud. To this fault Quod ab initio is applied with strict- ness. But the logic and the philoso- phy applies with equal strictness in Equity. (See Story.) Also to Codes for these provide what a Complaint or statement of the "cause of action" shall contain. Nor does the Code end there for it is further provided that filing an answer waives everything except that the statement is defect- ive, — "that it does not state facts sufficient." Here is a reaffirmation of the maxim De non apparetitibus. The Code also provides that all relief must be within the facts stated (thus Munday v. Vail, Vicksburg v. Henson, (U. S.) and their cognates are reaf- firmed ) . Herefrom we perceive that Pleadings are jurisdictional and that: Pleadings are the juridical means of investing a court with jurisdiction of a subject matter to adjudicate it. Sec. 47 Hughes' Equity. The thread referred to begins with the attitude of the state and its de- mands for the coram judice proceed- ing and that this be evidenced by the first rule of Evidence which is that: "What ought to be of record must be proved by record and by the right record." In other words, this thread begins at the stage of the general de- murrer and depends for support at all the stages where the defects can be called in question upon substance. Nullities, void things will not support that thread. Debile fundamenium fallit optts. Substance is required by the state and therefore it cannot be waived. Two cannot aflfect what affects a third by waiver or consent. Alterum non laidere; Res inter alios acta. A judgment is a contract; and the state is so far a party to this contract that it demands that the proceedings be coram judice in order to support the contract. Otherwise the contract is to the state In pari delicto. Tlie state does not assent to the coram non judice proceeding. To this the state in effect says \on hcec in fwdera veni (I did not come into this compact). The attitude of the state is also supported by the maxim Interest rci- publiccE ut sit finis litium. To sup- port this view we have picked a Code Logic, etc. — case from New York. Camphell v. Consalus, which we so often cite in order to keep the arguments in line with the Code; also to present the Code in the lights of fundamental law and to place it solidly and harmoni- ously upon first principles. This case cited, quoted and followed Guest v. Warren ( Eng. ) . Both cases are in accord with Mondel v. Steel, L. C. 77, 3 Gr. & Rud. which is reaffirmed in the late case of Palmer v. Humiston (0.) ; also in Milbra v. Steel Co. (Ala.), which may be cited to sustain Rushton V. Aspinall, Bristow v. Wright and Dovaston v. Payne all in Smith's Lead. Cases 8th Ed. L. C. 5, 135 and 217, 3 Gr. & Rud. Rushton, Bristow and Dovaston are a case nomenclature for the Trilogy of Procedure. These are cognate cases to Campbell v. Consalus, Clark v. Dill- on and Toolcer v. Amoux all New York Code cases which we have picked and elsewhere discussed to show that the Code brought nothing new in sub- stance and that it merely reaffirmed the old law — the maxims — the law of antiquity — the Prescriptive Constitu- tion. Elsewhere we cite these code cases and show what fundamental principles they reaffirmed and also to sustain the proposition that there is a logic and a philosophy in all sys- tems of Procedure that can sustain and carry forward the requirements of a Constitutionalism. The logic and the philosophy of Pro- cedure are its "Datum Posts" by which all Codes and Practice Acts must be construed. (See Codes; Construction.) The harmony, symmetry and the philosophy of law depends upon well settled Procedure and this depends upon right Construction. (Sec. 182, End. Stat.; Lex non exacte.) Cuius est instituere ejus est ahrogare. The law is a, delicate fabric and this depends upon congruity, reason and logic. If one part of the essentials is disregarded and distorted this de- ranges the entire institution. If the Construction of the general demurrer is either enlarged or diminished at any of its stages then it ill fits the other parts and these are no longer symmetrical and harmonious. In other words we must construe for the atti- tude of the state by the same rules and theories at all stages of the general TEXT-INDEX 167 logic, etc. — demurrer. Vbi eadem ratio Hi idem jus. Construction makes or mars. Uno absurdo data infinita sequuntur. We have introduced the state and its attitude also its demands for the man- datory record and that this be tested by the general demurrer and its cor- relatives from the beginning to the end inclusive — to Res Adjudicata and "Due Process of Law" and that herein the general demurrer is sought and argued under multitudinous and var iant titles and often in Constitutional relations. Herefrom appears the rea- son why the general demurrer cannot be waived. A pleader states his "cause of ac- tion" or of defense at his peril. To him is applied a universal canon of law — Ignorantia legis neminem excus- at. Palmer v. Hum,iston (0.) ; 'Nalle V. Oyster (U. S.) ; V. 8. v. Dashiel; Milbra v. Steel Co. (Ala.) ; Garrett. The strength of this proposition must be perceived from the Roman max- ims which are reaffirmed in the Code cases we cite and tie to and work from as "Datum Posts" and which are Campbell v. Consalus, Clark v. » Dillon and Tooker v. Arnoux, all New York, Code cases. In connection with these we cite English, U. S., Massa- chusetts, Illinois, Missouri, Califor- nia, Wisconsin, Minnesota, Ohio, Tex- as, Alabama, Virginia, Indiana and other cases. Upon this plan we call to the support of our arguments the Eoman, Jinglish, Federal, Code State and Common Law Practice States. All are marshaled and gathered and set around the "Datum Posts" selected and made prominent. Upon this plan we demonstrate that the law is found- ed upon a few fundamental principles well worked out and comprehended. It is this proposition that the Feudal lawyer set himself against as its es- tablishment would be against his theory and his fallacious dogma that "Parliament is omnipotent," and the calls of this for local and fiat law. Herefrom appears the reason why we vainly seek from Feudal authors and tlieir followers connected and clear- ing mention of the foregoing matters. They did not cite and explain the state's attitude and the thread of phil- osophy that begins thereat — at Alter- um non Icedere — the great high max- im and its cognates. Test these omis- sions and see. Look at anything that Coke, or Tidd, or Blackstone, or Logic, etc. — Chitty or Gould or Glanvil, or Brac- ton, or Littleton, or Bentham or Hale, or Edward III. has given us. Also Sees. 1-26, Restatement. By the power of advertising and the glamors held out by publishers supported by the compliments of sup- posed great judges (L. C. 159, 3 Gr. & Rud.) authors with no other assets beside audacity and presumption and the return compliments of the judges above referred to for a full genera- tion became illumined authors, edi- tors and reviewers. They were held out as the authority. Their glitter- ing positions attracted foreign essay- ists whose glowing contributions and eloquent appreciations made impres- sive additions to prefaces and press notices. Panoplied with such power and overmastering grandeur they were gilded with gold and were placed in a position to hoax and mislead the lawyer and his establishments or in other words undermine the latter. The lawyer of the period looked on and saw the corruption of his litera- ture and by this means the submer- gence of his profession by ignorance and commercialism which for first principles and philosophical works has imposed by clamor and hurrah vast digests and Cycs and rows of anno- tated cases picked from the jargon of a hundred Babels. To support these conclusions we refer to the facts set forth in the Restatement. Only note the high positions given to dictionaries, digests, Cycs, quizzers, form books and machine-made books notwithstanding the fact that from endless rows of these works there can- not be found a true definition of Pleadings, of the Mandatory Record, of the Statutory ' Record, of Jurisdic- tion, of Aider, of the General De- murrer and its functions, before the trial, at the trial and after the trial. (Quod ah initio.) Look at Story on the one hand and Thompson on tlie other hand. In connection witli the latter consider Gulling and its cluster of cases ; also tlie rise and development of the "Theory of the Case." See also Literature; Chitty; Stephen; Pom- eroy; Feudal Lawyer. Whoever can read and compare can see there is something the matter as he will see by comparing Section lU Story's Equity Pleading, quoted sec- tion 47 Hughes' Equity, with sections 2310, 2311, 2 Thompson's Trials, qiiot- 168 THE LAW EESTATED Logic, etc. — ed, under title Variance, 4 Gr. &, Eud. ; as to cases compare Campbell v. Con- salus (N. Y.), Nallev. Oyster (U. S.), Palmer v. Bumiston (0.), with Gull- ing V. Bank (Nev.), S. v. Fasse (Mo.) and Baity v. Homthal (N. Y.). And if he will loolv further, then view from Campbell v. Consalus and cases and texts there cited. The Prefaces of the various authors also reveal the be- wilderment that is laid before the stu- dent. Carefully read those of Profes- sor Pomeroy and of Judge Nash and note that they are widely apart. It seems impossible that any one can look from a general survey of legal literature and justify what is done to 5,000 young minds starting out, each year to learn their country's laws. Is it possible to do so from the warring and hostile texts and decisions we refer to? Elsewhere we refer to this wrong as a crime (Restating the Law; Unfair Trade). No student can learn the logic and the philosophy of the law from judicial anarchy and its jar- gon. 3 Am. Law School Review 602- 617. It is chaos whether we look from texts or from decisions or sup- posed educational Journals. By the sheer force of clamorous advertising new elements are driven into the law: To illustrate see how a "Key Number" plan (founded on American cases) has been made a legal factor. Also how a Cyc by showing how Laiorence V. Fox was cited 260 times in N. Y. Cases made that case so prominent that it was parroted by every student in New York and was caught up by the students of almost every college who wanted to talk of that case in preference to all its cognates. ( See Hendrich v. Lindsay, L. C. 319, 3 Gr. & Rud. ; or Button v. Poole.) Else- where we refer to the proneness of the legal profession to parrot. Lord Mansfield said in Robinson v. Raley, L. C. 45, 3 Gr. & Rud. that Pleadings were "founded in a strong sense and the closest logic." And this view accords with the view that the law is reason and may always be judged by its tests and its continui- ty. Mansfield gave no loose expres- sions as to aider and waiver that was not consistent with the philosophy of Consensus tollit errorem. He uni- formly held tliat the general demurrer cannot be waived. linshton v. Aspin- all, L. C. 5, 3 Gr. & Rud.; R. v. Wheatley, L. C. 19, 3 Gr. & Rud. In Logic, etc. — each of these cases he arrested the judgments because of the omission of a material allegation. And such is the Code rule. Bo wen v. Emmerson; Palmer v. Bumiston (0.) ; Campbell V. Consalus (N. Y.) ; also in Federal Procedure. Nalle v. Oysier; V. S. v. Cruikshanlc, L. C. 232, 3 Gr. & Rud. In the English courts the tests of the pleadings are the same at the stage of the general demurrer and at the stage of motion in Arrest. ( GoM- ham V. Edwards.) But in the "theory- of-the-ease" courts it is otherwise. (See Baker v. Warner (U. S.) ; Gull- ing V. Bank, 29 Nev. 266-280; State Bank, 53 L.R.A.(N.S.) 120.) The "strong sense and the closest logic" mean one and the same thing. These include the Trilogy of Procedure the three organic maxims of Proced- ure we elsewhere define and discuss. (Sees. 1—13, Restatement. See Hughes' Equity In Procedure.) The organic maxims are canons of logic and they are the beacon lights that illuminate the "Appian way." Mansfield was a Civil lawyer and he knew these canons and at the same time the prejudice of the Feudal Lawyer at the Roman law and especially at the Universal, Con- stitutional maxims which lighted up and led the way to a great unified and centralized system of Procedure which was 'the genius of the Roman Gov- ernment. The Feudal Lawyer would tolerate the citation of the minor maxims but not of the major ones which have never been gathered and cited to show the deeper meanings of Pleading and its related subjects. Story alone as elsewhere observed re- ferred to them; but so vaguely as not to impress them. ^Mansfield's deci- sions are pervaded with them but he never cited them; his decisions were very obnoxious to the Feudal school without citation of the major maxims of the Prescriptive Constitution, — those that were above the omnipotcncy of Parliament. These major maxims are organic. They unified, simplified but they centralized. They were for all ages and all climes and provinces. They were not created by Parliament and their operations were limitations upon the Feudal motto that "Parlia- ment is omnipotent." We shall next set out and outline two of these ma- jor maxims which have given the Feu- dal Lawyer and his followers so much trouble and which have greatly taxed TEXT-IJSTDEX 169 Logic, etc. — his ingenuity to obscure and immolate these maxims in a jungle of "Shelley" Cases. (See Jeofails.) In such cases the first principles of the law have been lost to many courts and they have become a mire and a be- wilderment to the student and to prac- titioners as well. See Gulling and its cluster of cases. "\¥hen its philosophy is lost the law is lost." Every lawyer should know the "strong sense and the closest logic" that lights up the leading subject of the law in the "legal jungle." Plead- ing has its beacon lights and among these none import more food for thought and reflection than two which we will next set out and translate: 1. De non apparentihus et non existenWbus eadem est ratio: What Is not juridically presented cannot be judicially consid- ered, decided or adjudged. 2. Verba fortius accippiuntur contra prof- erentem: The words o( an instrument are construed against the composer ; or every presumption is against a pleader. (See Hughes' Equity In Procedure.) These maxims have many and vari- ant expressions. (See Pleadings; Garrett. Lawma/n, 42 App. Cas. D. C. 202. They are of the maxims .of "strong sense and closest logic." Herefrom the attitude of the state is perceivable also its requirements for the record and its test by the general demurrer and its correlatives. These maxims are always expressed the same and al- ways mean the same in the Latin. And accordingly they can be accurately in- dexed. But the case nomenclature of these principles is very changeful and generally the cases burdened with a discussion of these principles are changed in each decade. Each court and province has come to have its own set or gathering. In Mansfield's day Rushton v. Aspinall and Bristow V. Wright, L. C. 5, 135, 3 Gr. & Rud. were given and these have come on down in Smith's Lead. Cases to the eighth edition from which they are omitted, to the great injury of that invaluable work. But new schools have come and these are shifted around by every wind of doctrine. Indeed cases are selected for each province and each school from time to time. Those who hated Mansfield chose Jack- son V. Pesked, Stennell v. Bogg and Spieres v. Parker. In Federal courts, Crockett v. Lee, Slacum v. Pomery, Logic, etc. — and Dobson v. Camphell, L. C. 232o are generally preferred, (See Nolle V. Oyster.) When the Codes came a new series of cases became prominent. Boicen v. Emmerson is burdened with the above maxims. In New York three notable and most instructive cases present the "sense and logic" of those max- ims and these are Campbell v. Gonsa- lus, Clark v. Dillon and Tookcr v. Arnoux which are a good presenta- tion of the major maxims from which Procedure can be articulated. In re- lation to these Code cases these major maxims are stated all through the English, the Federal, the Code and the Practice Act cases. And in the last analysis those we have selected are all the same in meaning and in effect. This presentation explodes the claims of certain authors, and courts and schools and publishing houses and their famous editorial staffs that the law is local and fiat and that "the law is the last interpretation of the law by the last judge; " also that editorial staffs have selected "key number" cases to stand for the major maxims referred to. If so which is the "key number" for either of the organic maxims above presented? As to these facts we invite a consideration of Campbell v. Consalus and of its an- notation. We submit this elabora- tion to sustain our contentions. But there are other very instruc- tive cases which well present these major maxims that all of the authors on Pleading have avoided or have silt- ed over. Coke-like, with "Shelley" Cases which are a veritable jungle. Among these worthy cases are S. v. ilueneh (Mo.) Fish v. Cleland, L. C. 12c, 3 Gr. & Rud.; C. d A. R. R. v. GloAisen (111.) ; Thomas v. P.; Wright V. Dodge, all Illinois Cases; Milbra V. Steel Co. (Ala.) ; Palmer v. Hum- ist'on (0.), and their cognate cases. All of these cases may be cited to support the major maxims cited. And so we could pick and cite cases by the thousands to imitate the various schools and publishers who try to make these their pickings of cases to stand for the roots and the heartwood of the leading subject of the law. And here let us ask if it has been taught by cases? If so, where? (Knickerbocker.) For Codes we have picked New York cases because these are a tolerably clear presentation of the major max- ims that authors and courts and pub- 170 THE LAW KESTATED logic, etc. — lishing houses avoid and generally de- nounce. Besides it seems well to choose New York, the first Code state, to lead the way. Melius est petere fontes quam sectari rivulos. These cases reaffirming the major maxims — the organic principles from of old ought to be impressed upon the Code practitioner. Melius est, and that the Code brought nothing new. Campbell i\ Consalus, Clark v. Dill- on and Tooker v. Arnoux; we pick and discuss to illustrate the Code and its genius. Also to show that this trio of eases simply reaffirm the old organic principles — the fundamentals of the law the sections of Story al- ready referred to. These sections are among the greatest of Code sections. There are no greater. Here let us ask if Code authors should not have plainly stated the roots? Each decade gives the struggling student a new list of cases which in the last analysis can add nothing to the organic, the fundamental prin- ciples. These at best are but illus- trations of the major ma.xims above referred to but more often they are hazy and misleading. But this fact the courts and the authors and the editorial staffs overlook and ramble and wabble round and round and seek far and wide for statutes and be- nighted decisions to lead and to light- en the way. (See 'Salle v. Oyster and Vicksburg v. Benson, also observa- tions upon Tidd under the title Liter- ature. ) Now let the student judge, and for this present him a few of the major- organic principles and let him look at and study these along with the var- ious lists of cases and compare the results. Also call liis attention to the warring authors mentioned in the Restatement. Let him judge if the major maxims, neglected and omitted by these authors, do not start him thinking while the Cases simply give him a world of matter to read and guess and speculate over. To illus- trate: Which gathering of cases will teach him whether the organic max- ims are the Universal, Constitutional principles of all ages climes and coun- tries? See if a, study of first prin- ciples lead into the mire of bewilder- ment. (See Culling v. Bank; also the "Theory of the Case.") Which gather- ing of cases teaches the exact precise Logic, etc. — idea that is expressed by the organic maxims? This is important to know. The organic maxims must be correct- ly picked, impressively set and well taught and that they mean exactly what they say at all times, and places, and stages, and in all relations, and that when a pleading is opened and inspected for substance it is tested by these major maxims and their cog- nates as rules of strict construction which at no stage or place or time fluctuates. They mean exactly the same thing at the stage of the general demurrer and at all of its correlatives at the motion in Arrest. (ZVo» obstante veredicto; Goldham v. Edwards. See Baker v. Warner, U. S.; Penn. 1; Knickerbocker. R. R. v. Ellett, (111..). Should not any good dictionary plain- ly state the above rules? Where these maxims are well taught there are no departures, no "Theory of the Case;" nor are pleadings func- tus officio when the judgment is en- tered. Nalle V. Oyster; Garrett. See Story on the one hand and Thompson on the other hand. Frv^tra probatur quod probatum non relevat; the evi- dence must correspond with the al- legations and be confined to the point in issue. But this rule is denied in every "theory-of-the-case" state. The above maxims are the thread which leads through the labyrinth. They are the beacon lights in the "jungle." As the Greek knew the dominant initial from which the Par- thenon was drafted so the Eoman gathered and established the "Datum Posts" from which Constitutional Pro- cedure is unfolded. (See Introduc- tory chapter, Restatement.) He fixed the north star and its pointers and as the mariner understands and respects these, so the Roman respected his ma- jor-organic maxims. For these he did not substitute from time to time a gathering of late cases. This was left to after ages and for other hemi- spheres. The gatherings of cases have been well tried in the American juris- dictions and for results they have changed the channels of legal reason and philosophy; or rather they have clogged the channels. We know of no court or author by whom these maxims have been cited and vindicated. Most all of these can be cited to the point that after pass- ing the general demurrer the rules of construction become more liberal to TEXT-IJSrDEX ITI Logic, etc. — uphold the Pleading at the motion of Arrest; and still more so on Appeal; and still more so on Collateral Attack. But Story denies these fluctuating rules; also Judge Barclay in Davis V. Jacksonville Line (Mo.) wherein he paraphrased Story in a most instruc- tive and clearing way. Courts that disregard these maxims have given nothing more than hodge- podge with which to fill supreme court reports. So to speak it is this hodge- podge that has furnished the matter to fill the vast and unending rows of digests, Cycs and the jejune outputs of commercialism whose ways of ad- vertising surpass the efforts of all the howling dervishes of earth. It has hoaxed the lawyer and his establish- ments. See Maxims, Multi utilitus; Uunday. The tests of a plea of Res Adjudi- cata are the same as at the stage of the general demurrer, which can never be waived. But it could be if we sup- plied omitted allegations at the stages of the motion in Arrest, or in Ap- pellate Procedure or at Collateral At- tack. Relating to such liberal con- struction the statutes of most all of the states have contributed to the mire of bewilderment. Most all of the statutes of Amend- ments and Jeofails have been drawn from the assumption that "Parlia- ment is omnipotent," and that the Prescriptive Constitution, the major maxims referred to can be extirpated by arbitrary edicts. But all courts have not upheld this view. See Clark -v. Dillon: G. & A. R. v. Clausen (III.) ; Ross V. Milne (Va.) ; Lawman, 42 App. Cas. D. C. 202. (Verha for- tius.) The discussions of these stat- utes are a jungle of "Shelley" Cases. (See Dovaston v. Payne, L. C. 217, 3 Gr. & Pud. Feudal Lawyer.) The Renaissance called from an- tiquity literature and art. But it did not call the law; it was left behind as was observed by Bacon. He gath- ered the organic-major maxims one of which was Verba fortius from which so much can be deduced as we have shown. It was the policies and the- ories of Feudalism that barred the way of the law; it could not come abreast with literature and art. Mot- toes like this: namely, "Parliament is omnipotent" would be eaten away by the logic and the philosophy of the Roman maxims. Coke saw this and | logic, etc. — opposed Equity because it would "eat out the heart of the law." His in- fluence assigned for Equity the sec- ondary maxims for the exercise of its jurisdiction. He did not understand the major maxims. The Universal, Constitutional Maxims of Procedure the Feudal Lawyer never understood. He could not from principle ex- plain why the general demurrer could not be waived. As to Res Adju- dicata he could not develop its rules and apply them consistently with or- ganic maxims. And the consequence is that the law became and now is a mass of high imperial statutes and of cases. As to what the latter amounts to see the discussions of Clark v. Dil- lon in New York also by Code authors ; look at Culling v. Bank, 29 Nev. 266- 280 and cases it cites. The perver- sions and the distortions by statutes and cases have destroyed all certainty in the administration of the laws. These have ignored the attitude of the state in Procedure. (See .ilterum non Icedere; Interest Reipublicas ut sit finis litium; Campbell v. Consalus and its annotations.) Pleadings have been legislated to be formal and waivable and most of the courts have decided them to be. Story denies this and Thompson affirms it. And the stat- utes of Amendments and Jeofails are construed according to the latter au- thor. Generally these statutes are op- posed to the logic and the philosophy of the law. For generations the restatement of the law has been called for (See title page Wigmore's Code on Evidence). The restatement of the law will be the restoration of the organic principles for beacon lights and not statutes and cases. The organic-major maxims are the roots from which the restate- ment must proceed. We have tried to indicate this fact herein also in many other relations. (See Altermn non Icedere; Restatement of the Law.) In conclusion it seems Avell to sum up by stating, that the most important subject of the law. Pleadings (which is inseparable from evidence) has been reasoned from at least three leading viewpoints, and 1. From feudal the- ories and such as Coke's three de- grees of certainty ("a jargon of words," BuUer J. in Dovaston i. Payne), and 2. From the Roman {Res Adjudicata which is founded on In- terest reipublicoe ut sit finis litium. 172 THE LAW EESTATED logic, etc. — and that herefrom the attitude of the state begins, which calls for the gen- eral demurrer and its correlatives and the evincing of the matter anent these by the mandatory record as is in- dicated under the titles Alterum non Iwdere and Mandatory record, and which the Roman alone comprehend- ed) ; and 3. by the local and fiat school which have tried to institute Pro- cedure from the letter of Codes and Practice Acts. Ita lex scripta est) ; Biddle v. Boyce, Eno v. WoodicortJi; See these cases discussed in Equity In Procedure) . The Feudal lawyer has followed Coke's theories and has wan- dered and tried to straddle all views. The struggle over Rushton v. Aspinall, L. C. 5, et seq., and Munday v. Vail, L. C. 79, et seq., will show. Code authors have generally sought li^ht from Coke and Blackstone (See § 15, 1 Gr. & Eud. ) . Pomeroy the most gen- erally approved Code author wrote with vacillation and contradiction. Not understanding Res Adjudicata he was a blend of the 1. and 2. classes. (See Pomeroy; Literature.) These au- thors never explained why the general demurrer cannot be waived; they did not have fixed and settled views of the mandatory record; they did cite and explain the trilogy of Procedure. ( § 1, the Law Restated.) They paved the way for such discussions as is re- lated to Bowen v. Emmerson and Gul- ling and its cluster of cases. In these cases we see Story on the one hand and Thompson on the other hand. Story wrote from the Roman — ^the Trilogy of Procedure and Thompson from the Feudal and local and fiat view. (See Story; Literatiire: authors classified.) What has happened the logic and the philosophy of the law may be judged the foregoing titles, also Maxims and Modern Law. Restatement of the law ; "theory-of-the-case." In prcesentia majoris cessat potentia minoris. tOOMIS V. TERKY, 3 A. D. 306. Dogs; Defense of property with ; by dangerous instruments. Hooker v. Miller; Bird v. Loomis, etc. — Holhroolc, 2 Gr. & Eud. 'Nuisance: 53 L.R.A.(N.S.) 501. LORD CAMPBELL'S ACT: Actio person- alis: 2 Br. It. C. 694. LORD'S DAY: Dies non: Sunday. LOS ANGELES R. R. v. DAVIS, Corpo- rate existence presumed ; Ut res ; judicial notice; De non Harris, L. C. 229, 3 Gr. & Rud. LOSEE T. BUCHANAN, 10 A. E. 623, L. C. 210, 3 Gr. & Eud. Actus Dei, denies Fletcher v. Rylands. LOUISVILLE & N. B. K. v. LOUISVILLE, 166 U. S. 709, Federal question how it must appear. Furmun. L. C. 147o, 3 Gr. & Eud. North Carolina R. B. LOST DOCUMENTS: 4 Gr. & Rud. LOST PKOPERTY: Eights of finder. 129 A. S. 390^11, ext. n. ; Armory v. Dela- mirie, L. C. 180, 3 Gr. & Eud. LOUGH V. OUTERBBIDGE, 143 N. T. 271, 42 A. S. 714-724, ext. n. 1 L.E.A. (N.S.) 874, L. C. 293, 3 Gr. & Rud. Ade- quate remedy at law may be waived ; bat not allegations, Dodge v. Wright, 48 III. 382. Consensus, L. C. 290O-299, 3 Gr. & Rud. Lough should tie compared with Baily v. Bornthal where oral statements of coun- sel were accepted as sufficient allega- tions. See Mondel r. Steel, L. C. 77, 3 Gr. & Rud. ; Knickerliocl-er. LOVEJOY V. MURRAY, 3 Wall. 18, L. C. 289, 3 Gr. & Rud. Res adjudicata : War- rantor bound by after notice. Cited, 4 Brit. R. C. 57, 59, 62. LOWE V. PEERS, 4 Burr. 2225, 98 Eng. Reprint, 160. Promise not to marry. In pari; Scott v. Tyler, 4 Gr. & Rud. Contracts in restraint of marriage, Scott V. Tyler; Carrodus, (1913), Vict. L. R. 1, 4 B. R. C. 1-221, ext. n, citing Lowe V. Peers, at pp. 57, 59. LOWNSDALE v. PORTLAND, 1 Or. 381. Res Adjudicata ; one department of state is conclusive of all others. LOWBY T. MOOBE, 16 Viash. 476, L. C. 104, 3 Or. & Rud. False and sham plead- ings allow .judgment by default. Xihil possumus; Orarer, L. C. 102, 3 Gr. & Rud. LUMLEY T. GYE. 17 Rul. Cases, 285. 2 Gr. & Rud. ; also Equity. Contract ; en- ticing to break ; Elements of liability. Qninn v. Leathern: Cases. LIMLEY V. W.4.GNEB, 6 Rul. C. 652. Contract ; Breach of Injunction to pre- vent. LUN.^TICS: See Insane; ilolton v. Cam- roucc L. C. 413, 3 Gr. & Rud. Are liable for their torts. Krom i: Schoonmakcr, 3 Barb. 647. LYNCH V. KNIGHT, 9 H. L. Cas. 577. In jure ; Defamation when too remote ; Alienation of affections of spouse. Sec Lumley. LYNCH v. NURDIN, 1 Q. B. 29 Sub. Scott, 4 Gr. & Rud. Children : negli.gence to- wards. Brit. R. C. 139-182. McDermitt ; Turntable Cases, 50 L.E.A. (NS) 1147 TEXT-IIS'DEX 173 M MAHAN V. BROWN, 13 Wend. 261, 4 Gr. & Rud. Trespass ; intent is no element in. 34 L.R.A.(N.S.) 1026. MAINTENANCE: See Champerty 2 Gr. & Rud. MAtACHT T. SOPEK, 3 Bing. N. C. 371. Slander of Title. MALEDICTA EST EXPOSITIO QVX corrumptit textum : It is a cursed con- struction that eats out the text. Male- dicta intei-pretatio, M.AilCE: See Actus non facit reum. M.\I,ICIOUS ABUSE OF PROCESS: Grainger v. Hill, 4 Bing. 212, 2 Gr. & Rud. ■ M.VnCIOUS ACTS CAUSING DAMAGE: 4 Gr. & Rud. ; Equity. Exercise of legal rights. Quinn i\ Leathern. Spite fence : 25 L.R.A.(N.S.) 831, 38 Id. 986. MALICIOUS ATTACHMENT: TrapnnU v. McAfee, 4 Gr. & Rud. Mischief, 128 A. S. 160 ; Prosecution ; McGardle v. McOin- ley, 4 Gr. & Rud. 50 L.RA. 392 (no remedy for perjury). MALtAN V. MAY: 6 R. C. 376, L. C. 374, .■J Gr. & Rud. Contracts in restraint of trade. 36 L.R.A.(N.S.) 961. Mitchel v. Reynolds. In pari delicto. MAttlNCKODT CHEMICAL WOKKS T. Nemnich, 169 Mo. 388, I.. C. 12a. 3 Gr. & Rud. S. P. Clark v. Dillon, which is cited and followed. Substance cannot be waived ; it will keep. Conclusions are void. MAI.PAS V. LONDON B. K.. 1 L. R. R. C. p. Div. 336, L. C. 52, 3 Gr. & Rud. Oral evidence inadmissible, etc. Fiunt etiitn. MALUM NON PB^SUMITUB: Evil is not presumed. Omnia prasumitur rite. MANBY V. SCOTT, Sm. L. C. Husband and wife: Wife's authority to bind the husband is a question of agency. Wana- maTcer, 98 A. S. 621. MANDAMUS: 4 Gr. & Rud. 125 A. S. 489 (what for). MANDATORY RECORD: This is a con- atitutional implication. A constitu- tionalism cannot be operated without it. The Trilogy of Procedure and its cognate rules constitute the greatest bulwark of freedom and of its pro- tection against arbitrary power and the ways of a despotism. Written consti- tutions contain no greater principles. [De non.) But these views have not been advanced and vindicated by the Feudal Lawyer and his followers. For their motto, "Parliament is omnipo- tent" the most useful and sacred things of the law were smothered and tramped out. And for results we have not one good work on Pleading. None are better than Story's and he did not make the fundamentals so clear that the next generation could comprehend them. Look at the "Theory of the Case;'' at cases like Gulling v. Bank; at the discussions of Clark v. Dillon in New York; the principles in Mat- Mandatory, etc. — lincrodt, in Missouri; at such legis- lation as the Municipal Court Act for Chicago. The literature of Procedure in the American states is the jargon of ju- dicial anarchy. To sustain this view look at and consider the Trilogy of Procedure. What set of books have clearly and comprehendably set these maxims out and explained them? The mandatory record is confused and shrouded in discussions of the statute of Amendments and Jeofails; of high and imperial statutes from Parliaments that are supposed to be omnipotent. See Aider; Statutory Record; Distinctions; Milling Co. v. St. Louis; Planing Mill Co. v. Chicago, L. C. 2d, 3 Gr. & Eud. This record is called by nearly a score of names. In a late case Nalle V. Oyster it is called the "strict" record. In another its importance is quite clearly indicated. Gray v. P. 261 111. 140, 49 L.K.A.(N.S.) 1215. It 'is the record the state peremptor- ily requires to evince the coram judice proceeding for all of its varied pur- poses, Windsor; Wilson v. Lowenthal ; for this it must be tested by the gen- eral demurrer and its correlatives to and including Collateral Attack, Res Adjudicata, and Due Process of Law. At all of these stages the construction of the record is the same. ^Yindsor. The state's demands do not fluctuate. Goldham v. Edwards. Alterum. The view that new rules have come and that these fluctuate is prevalent but it is untenable. Garrett. This view is destructive of the logic and the phil- osophy of the law. It is this view that denies the Trilogy of Procedure and makes of Procedure a mass of conflicting cases and statutes. This record depends upon the rule that "What ought to be of record must be proved by record and by the right record." This rule arises from Contra scriptum; and Fiunt enim; Ex- pressio unius. From these maxims and the Trilogy of Procedure arise numberless rules of Evidence, Pleading and Practice — Procedure. Herein are the heart and vitals of Procedure. Procedure rests upon the Prescriptive Constitution. See 4 Gr. & Eud.; also 174 THE LAW EESTATED Mandatory, etc. — Equity In Procedure. (Introductory Chapter. ) The mandatory record is the essen- tial, jurisdictional record arising from the Prescriptive Constitution and pro- tected by Universal Organic laws. Windsor; Wilkerson. P. v. Gray. Tlie statutory record is a different record and is for diflferent purposes. Milling Co. v. St. Louis, % 13. Re- statement; North Carolina R. R. Imperialism, its arbitrariness and their ally and successor Feudalism, never defined the Mandatory Record, nor Pleadings as a limitation of au- thority for the exercise of jurisdiction. The rule that a court was bound by its record practically meant nothing with those lawgivers. They inclined to the view that a court could exercise ar- bitrary power if only it chose. Along with this view have come cases like (jhilling and its cluster. These are the fruits of the "theory-of-the-case" doctrine. ( See Story. ) The definitions given the above mat- ters, so dear and important in a con- stitutionalism, have been and is one of the scandals of the law and is one of the drags upon the student. (See Literature.) In relation to the Feudal Lawyer we specified several short com- ings. To these we might have added the observations we now make. The Feudal Lawyer never defined Pleadings except from the angle of "raising an issue." Of course this was but an In- cident in "Due Process of Law," while investing the court with authority to proceed and to adjudicate was the main and leading thing. But the Feudal Lawyer was not open, full and impressive as to Plead- ings being jurisdictional, at least in civil cases. With equivocal expres- sions and writings and arguments as to the functions of Pleadings came au- thors who openly advocated their aboli- tion and treatment of the Pleadings as merely formal accessaries. (See Story; Rushton; Gampiell v. Consalus dis- cussed nnent Codes, Restatement.) These authors saw Pleadings from the Feudal definitions, from the ideas that nave the Common Counts, the general allegation, the general issue, the gen- eral denial, the "Aider by verdict," (See Rushton; Quod ab initio), and the importance due to a study of "forms of action" and forms of Plead- ing. These ideas sought to give to Equity a "straight jacket," and to bind it by a lot of senseless maxims Mandatory, etc. — and forms of jargon at which its na- ture and origin rebelled. And so be- gan that struggle in the Earl of Ox- ford's Case which has raged in Feudal courts for three centuries. Tlie Feudal Lawyer reasoned from his imperial statutes and his local cases and his motto that the "King in his Parliament is omnipotent." Such mot- toes, statutes and cases were the foun- dations of Feudal lawyership. While on the other hand the Equity lawyer was more familiar with principles and studied these more than he did forms of actions and forms in books gathered and compiled as educational and phil- osophical matter. The difference of the two types of lawyers was incalcu- lable. They no more saw and reasoned alike than did Bacon and Coke. The former could see the fundamental principles of Procedure arising from the necessities of Res Adjudicata and its correlatives while the latter could only see the rules in type on paper, — the commands of his uncontrollable statutes and what his court had said. Plere began the importance of digests and of Cycs. The class of lawyers who must practice by these saw no sense, or logic or philosophy in the maxims. Their literature will show to what ex- tent they have cited and employed those we gather and set forth in The Law Restated. All of these have been denied by Feudal lawyers. They have not encouraged students to study them and the result is judicial anarchy among the states of the Union. (See Gulling and its citations in the Law Restated.) Look at the question as to whether or not the general demurrer can be waived. Also at the origin and development of the Municipal Court Act for Chicago. Also as to the ques- tion as to whether or not the Plead- ings are opened at the stage of Col- lateral Attack. (Xalle v. Oyster, and cases cited in it.) It is idle to contend that the Feudal Lawyer has ever right- ly conceived h'es Adjudi<^ata and°its necessities for the matter of the man- datory record. Freedom cannot exist in a court that has no mandatory record and this record protected by the Trilogy of Procedure and its cognate maxims. We have sought to demonstrate this fact in sections 5-13, Restatement of the Law. All of these matters go together, they are mutually dependent and in- teract. The attacks upon these mat- ters comes from » school of barbarous TEXT-INDEX 175 Mandatory, etc. — lawyers by whatever name they may be known. These have assailed the mandatory record here and the max- ims yonder and by this means have dis- membered the law, its logic and its philosophy. They have failed to re- spect the maxims or to define the man- datory record or to define the Plead- ings from their broader and deeper sense. Generally all they see in Plead- ings are the juridical means of "ap- prising the opposite party of what he must meet at the trial." And this notice they inform us like any other "notice" can be waived. This is the doctrine of the ''new" and the "mod- ern" school. (See Story.) No Feu- dal author has seen Pleading from the angle of Res Adjudicata, Collater- al Attack, Due Process of Law, and the Comity of Courts. The removal of causes from one court to another and from one system to another is an ad- ditional reason why there must be Pleadings. (See §§ 83-123, 1 Gr. & End.) The attacks upon the Manda- tory Record and the maxims referred to is also an attack upon the first rule of Procedure which is "What ought to be of record must be proved by record and by the right record." {Fiunt enim; Mondel v. Steel, L. C. 77, 3 Gr. & Eud.; Millra, 46 L.R.A. (N.S.) 274, 277, 278. ) Now what have the Feudal lawyers done for these matters and many incidents inseparably connected with them? Look from these matters and see why the Feudal Lawyer is a destroyer. The mandatory record, the maxims guarding it and that first rule of Evi- dence, — Procedure are a net work of principles. They have interactions and they all may be deduced from the leading maxim of the law — Al- terum non Iwdere. Herefrom the in- terests of the state may be traced in Procedure; also why the parties can- not dispense with the Pleadings. {Campbell v. Consalus; Codes) ; also why the study of Procedure is a study of government. (See Introductory Chapter.) The attitude of the state in Procedure is protected by the man- datory record ( Windsor v. McVeigh, L. C. 1, 3 Gr. & Rud.). To test the Pleadings as a part of that record stands the rule that the general de- murrer cannot be waived. According- ly we see a deeper and a broader moan- ing for the trite and commonplace rules of Pleadings than has been given them by the Feudal authors whose fol- Mandatory, etc. — lowing contend that the general de- murrer can be abolished either by rule of court or by statute. (But see Nalle V. Oyster.) We must leave it to the student to contemplate cases like Vicksiurg v. Benson, along witli the notion that the general demurrer can be waived. If a Judgment is con- strued and limited by the Pleadings then what becomes of a judgment that has no Pleadings by which it may be construed ? ( Garrett; Munday v. YaiJ, L. C. 79, et seq., 3 Gr. & Rud.; also cited in Equity In Procedure.) Look from these propositions to Mon- del V. Steel above cited and its cog- nate cases and see if the Feudal Law- yer has any footing whatever for his theories of abolishing the general de- murrer and by this securing "plain and speedy justice?" The prominent and brilliant orators who see so much in the Municipal Court Act for Chi- cago ought explain themselves in the light of the above matters; we will be instructed to learn where, exactly where, they ever explained one of these matters. The Prescriptive Constitution is the fundamental by which all other laws are attested. Alongside every written Constitu- tion lies the Prescriptive Constitu- tion. The principles of the latter are the fundamental law which expand and contract the former. And so it is that written constitutions yield to fundamental law or the Prescriptive Constitution. In Oalcley v. Aspin- wall, L. C. 222, 3 Gr. & Rud. ; also in S. ex rel. Benson v. Sheppard the last proposition is well illustrated. These cases show that written Constitutions and statutes yield to immutable prin- ciples of all ages. (2 Kent, 8, 12; Riggs v. Palmer; In prcesentia ma- joris cessat potentia minoris; Lex non exacte definit.) Deeply and broa,dly, the Prescriptive Constitution is the organic law that controls all other laws. This is most ably argued in the Oakley Case. The Prescriptive Consti- tution brings with it the old funda- mental law that is the Universal law of all ages. Among its principles are ^'cr'ua fortius, Nemo deiet esse judex; and Idem agens et patiens esse non potest. Those who think that the maxims are too general to be of any practical utility ought examine the discussions of these maxims in the cases above cited. (See also §§ o09- 522, Equity In Procedure.) 176 THE LAW RESTATED Mandatory, etc. — The Prescriptive Constitution brings with it the Trilogy of Procedure and its cognate maxims ( §§ 5-13, Restate- ment). These call for the mandatory record and therefore it is a Constitu- tional Implication. (Expressio eorxwi guw tacite nihil insunt operatur.) There are no greater constitutional principles of protection than is the Trilogy of Procedure. (§§ 1-7, Ke- statement. ) Denouncement of and minimizing these maxims beclouds the way and bars the progress of the stu- dent. Now as to this he should ex- amine, pause and consider. America was discovered and there came those close to the Reformation and its Inquisition, the English and the French Revolutions and the arbitrariness of absolutism. The Planters, the Cavaliers, the Catholics, the Quakers, the Dutch, the Dissenters the Fishermen and the Shopkeepers, all came determined to have and to respect only such laws and religions as might be locally agreed upon. Each tribe could have its own laws and customs and its own religion. Here- from arose State Rights and the sov- ereignty of each little capital and its own court. And those selected to preside and to decide the law knew more of Coke and his Shelley's Case than they did of Alterum non Icedere or of the Trilogy of Procedure. To look at the latter in its ancient ex- pression caused them to shudder and to fear the approach of Rome. Black- stone fed the belief that the law was local and fiat and that Shelley's Case was the corner-stone of a legal educa- tion. And this was so well taught that very few students have learned wliat Kent said of that supposed in- dispensible for sound lawyership. Apart from the Blue Laws, and the knowledge of witchcraft the evidence is ample that the legal profession was just emerging from barbarism when the Code came. And now something "new" had come. (See Pomeroy; Chitty; Feudal Lawyer; 3 Am. Law School Review 602-609.) The Feu- dal grasp of the Roman gift is indi- cated in the first Code cases — Biidle V. Boyce; Eno v. Woodworth and Allen V. Patterson. It really took an in- trepid court to decide Clark v. Dillon, wherein tliere is hinted a higher law than senseless and arbitrary edicts. This case and its cognates lead the way to the "legal jungle" over the question as to whether or not Verba Mandatory, etc. — fortius is the law of all countries. The discussion of Verba fortius in American jurisdictions, without more, shows that our deductions from the historical data above referred to are not overdrawn. But to this may be added the fact that no Code author or Court has pointed out that the Code merely reaffirmed the maxims of an- tiquity. ( Quis, quid, coram quo ) y also that the general demurrer can- not be waived. (See Alterum.) Had the rule of the general demurrer been taught away from imperial statutes and Coke's case system there would have been something to moor to. But it was not and instead came the teach- ing that permits cases like (hilling and its cluster. Had lies Adjudicata, — Interest reipublicce ut sit finis litium been understood and that for these there must be the mandatory record then Procedure would be something else than judicial anarchy. But the Feudal literature shows that the gen- eral demurrer and its Correlatives in- cluding Collateral Attack and -Res Ad- judicata were not understood. Ti.rn to the Works on Pleading and the facts referred to will appear. As to the Code it was perverted and dis- torted into a Feudal graft upon a Roman stump by the Feudal Lawyer. He could not yield his forms of action and forms of Pleading as great logical and philosophical gatherings of mat- ter. (See the facts referred to anent Chitty.) Look and see if any of these works explained why it is that the general demurrer cannot be waived; also why Verba fortius could not be extirpated by legislation and the decisions of courts. Also if the reasons involved are not rules that are great Universal, Constitutional rules equally applicable to every sys- tem of Pleading that can serve a Con- stitutionalism. See these facts and then judge of literature that instructs that the maxims are obsolete and out- worn. (See 2 Bouv. Die. title Max- ims, Rawle, Revision.) Pleadings lie at the base of sound lawyership. This was so well ob- served that even Coke and his school of parrots have quoted it from genera- tion to generation. It is quoted in the Preface in Gould's Pleading. As the nonsense of Serjeant Williams has been parroted, so has been many truly excellent things which the Feudal Law- yer has never and can never rightly comprehend until he renounces his TEXT-IJSTDEX 177 Mandatory, etc. — motto that "Parliament is omnipo- tent; " also his attacks upon the max- ims. (See 2 Bouv. Die. Eawle Revi- sion, title maxims.) To illustrate: See how Res Adjudicata neeessities dictate the rules of Evidence and of Pleading and then note the fact that the Feudal Lawyer never had any com- prehension of the breadth and depth of Res Adjudicata and its complex in- teractions with most all branches of the law. To justify this assertion we call attention to the failure to prop- erly define either Pleading or the man- datory record. Feudal literature will show that the harmony, logic and phil- osophy of the law has been dismem- bered by Imperialism and Feudalism. This fact can be traced from Gulling and its cluster of cases. Another line of supporting facts will appear from the variant and fluctuating views as to the necessity of a sufficient indict- ment from start to finish while as to the initial Pleading conferring juris- diction in civil cases wholly different theories prevail. Short and terse statements by Greenleaf that there are no distinctions (1 Gr. Ev. § 65) have not impressed the profession. (See Story; Theory of the Case.) We can offer nothing stronger to enforce our views than the above matters referred to. On every hand it is apparent that the lawyer is groping around after cases and statutes exactly as would be a sailor who was ignorant of star, sextant and compass and who sailed only from headland to headland. Like the latter are the little, local, statu- tory and "late case" devolutes; and such is he who cannot define Pleadings and the mandatory record. The mandatory record is the web that clothes the demands of the state for Constitutional Procedure, — for Due Process of Law. The great tree of the grove is Res Adjudicata and it is of concern to the state. (Interest rei- puMicw ut sit finis litium.) And this demand is the same in all sys- tems and in all cases. The- idea is the same at law in Equity and in Crime — Former jeopardy. And Green- leaf and Story should have stated this fact so broadly and extendedly as to have impressed the profession. Like the tree. Res Adjudicata has its roots, its trunk and its limbs and branches. Its roots are the Trilogy of Procedure. (§§ 1-13, Restatement.) Its trunk is the Prescriptive Constitution which includes Due Process of Law. Its Mandatory, etc. — limbs branch out into all subjects of the law. Its rules are paraphrases of Fundamental rules of Evidence and of Pleading. (4 Gr. & Rud.) It is founded on the Coram judice proceed- ing. Its first rule is that the pro- ceedings must be Coram judice. The Coram judice proceeding can only be evinced by the mandatory record and according to the rule in Mondel v. Steel, L. C. 77, 3 Gr. & Rud. To this record tliere is applied Expressio unius est exclusio alterius. The view that it may be supplanted by matters that belong to the statutory record is destructive of the logic and the phil- osophy of the law. This is the con- test on one of the "theory-of-the-case" sect; it is the only record to prove the identity of the issues, — of the subject matter that was presented for adjudication. Tlie claim that for this the statutory record, the evidence, the instructions, the arguments, the bill of particulars, the agreed statement of facts, the admission of irrelevant evi- dence without objection and, the stipulations of the parties are op- posed to the demands of the state. Alterum non Icedere; Kniclcerhocker. The last proposition is in disaccord with the supposed "new" and "mod- ern" school. This fact will appear by looking at Gulling and its cluster of eases. (See also 1 C. J. Cyc 66, 100; 3 Am. Law School Review 603- 609.) Under the title Story, we give the clews that will lead to the re- spective sides of contention. See Feudal Lawyer; Collateral Attack. The stipulations of the parties will not vary or affect the Pleadings. Campbell v.. Consalus discussed anent Codes. \Miat we have written is in the light of Story, Greenleaf, Rushton v. Aspinall, L. C. 5, 3 Gr. &. Rud.; Bristow V. Wright, L. C. JS."), 3 Gr. & Rud.; Dovaston v. Payne, L. C. 217, 3 Gr. & Rud.; Campbell v. Consalus; Clark V. Dillon and Tooker v. Amoux, which cases are extendedly reviewed anent the title Codes ; Nalle v. Oyster; Vicksburg v. Benson; Windsor v. Mc- Veigh, L. C. 1, et seq., 3 Gr. & Rud.; Pennoyer v. Neff, L. C. 58, 3 Gr. & Rud.; also Milbra, 46 L.R.A.(N.S.) 274, 277, 278; Palmer v. Humiston, 45 L.R.A.(N.S.) 640; Atlantic, 52 Fla. 165. Let the student compare this cluster of cases with Gulling and its cluster and then he will see some of the causes of judicial anarchy. Here- 178 THE LAW KESTATED Mandatory, etc. — from he will see the necessity for the restatement of the law. In §§ 1-26, Restatement he can perceive the neces- sity for the mandatory record. The mandatory record, its functions and operations are the basis of many rules of Appellate Procedure. Wind- sor V. McVeigh, L. C. 1, et seq., 3 Gr. & Eud.; North Carolina. Jurisdiction of substance and vindi- cation of the mandatory record outline the functions of the arnicas curice. A defect of jurisdiction shown by the mandatory record is sua sponte noticed. The court will not open the statutory record in such cases. Windsor v. McVeigh, L. C. 1, 3 Gr. & Rud. But see North Carolina. MANDATORY RECORD: This record has never been defined by Feudal authors, Sec. 2. Restatement. See Literature. Res Adjit-dicata and its correlatives de- pend upon §§ 10, 11. See Collateral Attack. Other views are expressed. 1 C. J. Cye. 45. 66, 100 ; also in Gulling. It is a necessity for the higher law. § 11, Restatement. It is a constitutional im- plication. § 12, Restatement ; also Plead- ing ; Codes ; Introductory Chapter. What ought to he of record must he proved hy record and hy the right record. § 12, Restatement. Uonclel v. Steel. L. C. 77, .3 Gr. & Rud. It cannot be waived. § 12, Restatement. The statutory record ; Dis- tinctions. § 13, Restatement. MANDATORY ST.ATUTES: 4 Gr. & Rud. MANIFBSTA PROBATIONE NON IN- digent : Manifest things require no proof. See Judicial notice ; Prohatis. MANNER OF THE ROMANS: See Tril- ogy of Procedure ; Mandatory record ; De nnn: Diifour r. U. .S. 37 App. Cas. D. C. 500. M.ANSLAUGHTER: 4 Gr. & Rud.; li. V. liudleti. 4 Gr. & Rud. MAKBITRY V. MADISON, 1 Cranch 137, L. C. 142, 3 Gr. & Rud. jurisdiction vested by a constitution is exclusive. The Judi- ciary is supreme. Cuius est instituere. MARIOT v. HAMPTON, Sm. L. C. ; 4 Gr. & Rud. ; Res Ad judicata : Recovery at law ends litigation, ^emo dehet his vexari. MARKETABI.E TITLE: 132 .V. S, 9S6; :!S L.R.A.(N.S.) 1-40. MARRIAGE: See Husband and Wife, 4 (Jr. & Rud.; Equity; Divorce; Contract not to marry illpgal. In jiari. Luiic; : do exactly what they have, make of the Code a mystery. Reference to cases lilio Gulling will show. Munday. TEXT-INDEX 183 McKYRING V. BULl, 16 N. Y. 297, 69 A. D. 696, L. C. 33, 3 Gr. & Rud. Defen- ses not pleaded are waived. Palmer v, Humiston (O) ; Mondel. A plea of pay- ment must be made. De non. McLEOD V. BERTSCHY, 36 Wis. 176, 14 A. R. 755, 110 Va. 571 ; Interest reipub- Ucai: See 129 A. S. r)7, 59. In Federal Practice the dismissal of the bill carries with it the cross bill. Dows v. Chicago, 11 Wall. 308. McMANUS V. CRICKETT, 1 East 106, 46 L.R.A. 314. Respondeat superior. Agency ; Liability of the raaster for the acts of the agent-servant. Qui sentit. See 4 Gr. & Rud. and cases cited ; also Equity, Deviation from the master's service. Story. McMULLEN V. HOFFM.4X, 174 U. S. 639, 654-660. Cited, §§ 15. 16, 17, Restate- ment. The law of Contract arises from a few fundamental maxims. Some of these mentioned and discussed. In pari delicto and its connate discussed. M'NAUGHTEN'S CASE, 10 CI. & Pin. 200, L. C. 195, 3 Gr. & Rud. Cited, § 18, Re- statement. Actus non facit. Insanity a defense to crime ; 7?, v. Oxford. 4 Gr. & Rud. ; V. S. V. Drew, 4 Gr. & Rud. ; Davis V. V. S. 160 U. S. 479. An expert may be qualified to speak from information from hearing a case tried and from con- venience be allowed to testify. MECHANIC'S tIENS. See 4 Gr. & Rud. MELIOB EST CONDITIO DEFBNDENTIS (or possidentis) : The cause of the de- fendant is the better. This maxim is a cognate of In pari: In wquwU jure: Boone v. Chiles, 10 Pet. 177. MELIUS (EST) PETBRB FONTES QUAM sectari rivulos : It is better to seek the fountains than to wander down the rivu- lets. 4 Gr. & Rud. Cited, § 17. Restate- ment. Juris prwcepta sunt hwc: Judge of the truth of this maxim from the at- tempt of American courts to make the law local and flat : That each capital of each province could make the law. its logic and its philosophy. And have they not eiven a Babel? See "Theory of the Case," In the Gr. & Rud. and in Equity ; also Gulling, ante; Campbell r. Consalus, Clark V. Dillon and Tooker v. Arnoux; Mallincrodt, C. & A. R. R. r. Cla"sen; Ross V. Milne: Huntsman v. 8.; Jeofails; Jackson v. Pesked; Mandatory Record; Statutory Record. Look at the Trilogy of Procedure and see if each state should not have writ- ten it in its Constitution ; also statutes in view of what has happened. Look at Story on the one hand and Thompson on the other hand. Also at the discussions around Munday v. Vail as to whether or not Pleadings are jurisdictional. Xalle v. Oyster, Yicksburg v. Benson. Had the Trilogy of Procedure been taught could empiricism, and its promoter commercialism have given the jargon of judicial anarchy for the guidance of the Western Rome. See Bushton ; l^torii. MEtLORS V. SHAW, 1 B. & S. 437. Mas- ter must make premises safe. McManus Cases. 4 Gr. & Rud. MEMORANDUM: In the statute of Frauds. Wain v. Warlters, L. C. 335, 3 Gr. & Rud. MENS REA: Actus non facit. MENTAL ANGUISH. As an element of damages. 49 L.R.A. (N.S.) 206-347, ext. n See Telegrams. Corcoran v. Tel. Co. 80 Wash. 570, 54 L.R.A. (N.S.) 555. MERCHANTS CO. 42 L.R.A. (N.S.) 996, 998. Depntures allowed in Oklahoma. f-eo Departures. Fru.itra. MERCH.iNT'S BANK T. STATE BANK, 10 Wall. 604, 3 Gr. & Rud. The fraud of the agent is the fraud of the principal : Qui sentit: Corporations are liable as pri- vate .persons. Province of court and jury. Ad quo'stione-ni. MEREST V. HERVEY, 5 Taunt. 442. Ex- emplary Damages. 4 Gr. & Rud, ; Mali- cious acts causing damage. MERGER: 4 Gr. & Rud. See Equity: Of Estates, 39 L.R.A. (N.S.) 834. Of the civil in the criminal remedy. White v. Fort, 4 Gr. & Rud. 1 Bish. C. L. 267, 271, 970. MERRYWEATHEB v. NIXAN, Sm. L. C. ; Trespassers ; No contribution among. Meliorest conditio: In i,ari: METALLIC COMPRESSOR CO. v. B. R., 12 Am. R. 689. In jure: Gilson; 23 L.R.A. (N.S.) 184. MIAMI R. R. V. WETMORE, 2 A. R. 373: Wilful acts of agent principal not liable for. Qui sentit; In fictione juris; See Rahmel, also Craker, in Gr. & Rud. MICHOUD V. GIROD, 4 How. 503, Ma- gruder, 235 U. S. 107, 120, Hughes' Equity, §§ 515-520. No one can act where his interests and his integrity are in con- flict. Idem agcns et patiens esse non potest. Fox V. Mackreth, Pitt v. Mack- reth, Eeech v. Sandford (2 Gr. & Rud.), all in Wh. & Tud. L. C. Equity. MILBBA V. SLOSS-SHEFFIELD STEEL Co. — Ala. — , 46 L.R.A. (N.S.) 274, 277-278, 62 So. 276. Cited, Preface ; al- so §§ 10, 22, 25, Restatement. Allegata et probata must correspond. A recovery must be secundum allegata et probata. Brisiow v. Wright, L. C. 135 et seq., 3 Gr. & Rud. ; Tooker v. Arnoux (N. Y.) ; Dimick v. Brooks, 21 Vt. 278. Garrett. Elements of Jurisdiction ; necessity for parties; also records. "What ought to be of record must be proved by record and by the right record" quoted and Instructively applied. Quis, quid, coram quo. Munday v. Tail, L. C. 79, 3 Gr. & Rud. cited and followed (Pleadings are juris- dictional) : Knickerbocker. Mondel v. Steel (Pleadings are to limit issues and to narroio proofs and for this what they state are conclusive : they are irrefragable. Oral and other evi- dence is not admissible to alter or vary them). Mondel is cited and followed. Milbra is not recognized by C.yc. authors. 1 C. J. Cyc. 45, 66, 100 (identity of causes). A judgment out of or beyond the plead- ings is void. Munday: Sache v. Wallace. 10 L.R.A. 481 ; Palmer r. Humistun, 45 L.R.A. (N.S.) 640: Ticksburg v. Kcnson. Important rules of Res Ad judicata dis- cussed. Milbra. Sec Demurrer, also Campbell v. Consalus (.\. Y.). The foundations of a juiUimcnt. Dimick V. Brooks, supra, cited in Milbra. 46 L.R.A. (N.S.) 278. A record must support a judgment. Dimick: Quis, quid, coram quo. Introductory Chapter ; Knickerbocker. MILITARY: Civil and criminal responsi- bility of soldiers and militiamen. Franks, 142 Ky. 232, 53 L.R.A. (N.S.) 1141-1170, ext. n. See Mostyn; Qui Jussu. MILLER V. HOBTON, 23 A. S. 850, 10 L.R.A. 116, 32 C. L. J. 246. Health Boards, Powers of. 211 TJ. S. 30R ; 23 L.R.A.(N.S.) 1188, n. Salus populi su- prema lex. MILLER V. HYDE, 42 A. S. 424, 25 L.R..\. 42, n. Judgment in trover does not pass title to property. Solutio prctii : Id quod nostrum. 184 THE LAW KESTATED MiriEK V. KACE, Sm. L., 4 Gr. & Rud.. Money-cash passes on delivery ; but it must be received l)ona fide, 2^ullus com- modum: But generally a tbief gives no title to stolen property. Bently, 2 Gr. & Rdd. See bona fide Purcbaser (Swift). IMII,I,ETT V. P., 57 A. E. 869. Legisla- tive authority to regulate contract ; 122 A. S. 899-914, n. MILLIGAN'S CASE, 4 Wall. 2. Territorial jurisdiction of courts. Must sit at the right place. Quis, quid. Coram jiidice proceedings necessary to support a sen- tence. Windsor v. McVeigh^ L. C. 1, 8 Gr. & Rud. ; Mandatory Record. Venue of crime is Jurisdictional. 49 L.R.A. (N.S. ) 1215. See Terms of Court. Venue.. 45 L.R.A. (N.S.) 1001. Martial law. Su- preme Judge may order out militia. P. ex rel. Welch v. Bard, 109 N. Y. 304. MILLING CO. v. ST. LOUIS, 222 Mo. 306. The mandatory and the statutory records, cites Pennowfsky. "What ought to be of record." See Mandatory Record. MILLS V. AUKIOL, Sm. L. C. Implied covenants do not bind the assignment after an assignment of the lease. MILLS v. DUBYEE, 7 Cranch, 481, L. C. 57, 3 Or. & Rud. B\ill faith and credit clause. McElmoyle. MILLS T. WYMAN, 3 Pick. 207, L. C. 316, 3 Gr. & Rud. See Lampleigh. Ex nudo. MILSTED V. BUTTE MINING CO., 32 L.R.A. 697, L. C. 38, 3 Gr. & Rud. De- nials upon information and belief. Technical rule. MINES : Relocating. Wilson, 68 L.R.A. 833. MINIME MUTANDA SUNT QUAE CEB- tam habuerunt interpretationem : Things which have a certain interpretation are to be altered as little as possible. P&i jus incerium ; Stare decisis. MINNESOTA BATE CASES. See Com- merce. MINNESOTA V. NOBTHEKN SECUKI- ties Co. 194 U. S. 48-73. The general demurrer cannot be waived ; the omis- sion of substance the court will sua sponte notice. De non apparentihus re- affirmed ; also McAllister, L. C. 3 et sea., 3 Gr. & Rud. Cracjin v. Lovell, 109 D. S. 194, citing Rushton and Slacum; Nalle; see Great N. R. R. 208 U. S. 452; Baker V. Warner; title. Demurrer, Equity In Procedure ; 2 Gr. & Rud. V. S. v. Cruikshank, L. C. 232, 3 Gr. & Rud. ; Mxtnday. MISEBA EST SEKVITUS, UBI JUS EST vagum ant incertum : It is a miserable slavery where the law is vague or un- certain. Ijbi jus incerium. ^emo debet. MISJOINDEB: 4 Gr. & Rud.; Equity. MISNOMER: See Names, 4 Gr. & Rud. Caveat Emptor, L. C. 374-384, Id. MISBEPBESENTATION: See Deceit. MISSOUEI: Its procedure outlined. 4 Gr. & Rud. ; also Equity. Pennowfsky. MISTAKE: See 4 Gr. & Rud.; also Equity. Jgnorantia Icfjis: Mutual mistake avoids a contract. Smout; Hunt; Brown, 35 Vt. 252, L. C. :;47, 3 Gr. & Rud. Re- lief from. Lriiisilinvn. Wlieadon v. Olds, 6 R. C. L. 620-r,:m. MITCHELL f. KINGMAN, 5 Pick. 451, L. C. 415, 3 Gr. & Rud. Lunatics ; con- tracts voidable. Molton, MITCHEL V. REYNOLDS, 1 Sm. L. C. Marvel r. Jonah, — N. J. — , 54 L.R.A. (N.S.) 200. Restraint of trade; In pari contract, L. C. :->l'J, 3 Gr. & Rud. ; Mallan. To fix prices by vendor to vendee. Fisher, — Wash. — , 51 L.R.A. (N.S.) 522, n. Amman, 95 Neb. 695, 52 L.R.A. (N.S.) 503 (entering into the service of another). MITIGATION: 4 Gr. & Rud, MODERN lAW: The claims are widely made that "nevi" and "modern," law has come as a "new dispensation." Commercialism has caught the idea and to make way for their out- puts of hodge-podge have assailed the maxims, the old cases and tlie authors of other generations wlio advocated the maxims and the old law. It seeks and hurrahs for authors whose sole career is writing wherein cannot he found one fundamental clearly stat- ed and consistently vindicated. The supreme court of the United States has spoken both ways. It too straddles as do the Feudal authors and their fol- lowers. It has denounced the Code. (McFaul V. Ramsey) as something new; but it has never plainly stated and vindicated one of the vital princi- ples upon which Codes are founded ( See Quis, quid, coram quo : ) ; nor its predilection for either of the warring sects. (See Story, Rushton.) On the other hand it has declared that "new" and "reformed" rules have come. {Baker v. Warner.) It has never de- fined "Due Process of Law; " it as- sumes that something "new" and dif- ferent to the "Manner of the Romans" has come. The court over emphasizes that in some states a recovery must be Secundum, allegata et probata. As if this fundamental idea was not the law under all skies of protection. Of course Commercialism gathers up and makes the most it can from such a straddle, and timidity of expressions. The courts have spoken so lightly and carelessly about fundamental law that it cannot be found in the prevailing literature. In one case they will state tliat the law is old and organic as in McMullen v. Hoffman, 174 U. S. 639, 654; Riggs v. Palmer, 4 Gr. & Rud.; Oakley v. Aspinioall, and in the next they will assume that a 'new dispen- sation" is at hand. Gulling v. Bank, Story. "Theory of the Case," 4 Gr. & Rud.; Abatement. If maxims are the organic law of Contract {McMullen) are they not also of the other leading subjects of the law? Can we separate Contract from Procedure? Is not a Judgment a Contract? (Equity In Procedure, p. 470.) Whether or not there is a body of organic law from antiquity above and beyond all other laws and which necessarily governs, is one of the most important questions before the Ameri- can student. Views relating to this are presented in §§ 509-522, Equity In TEXT-INDEX 185 Modem law. — Procedure. Thereat we cite James C. Carter, Kent and the decisions of the several courts in the affirmative. It is most ably maintained in Oakley v. Aspinioall, L. C. 222, 3 Gr. & Eud.; also in 8. v. Henson, 4 Gr. & Rud. Further supporting the affirmative, see also §§ 1-26, Restatement. Whether or not there is a lavs' of substance that cannot be dispensed with by local and fiat laws is of leading consequence to the student. Glimpses of the question arise in the law of self-defense, which arises from the law of necessity. Also from discussions of International Law as will be seen in England's response to the protest of the Washington gov- ernment objecting to the use of a neutral flag to protect life and prop- erty. The response recited the law and usages of an imperiled ship and its right to use every facility to save itself and its passengers. One familiar with the law of self-defense can per- ceive that the bottom of Earl Grey's argument was Necessitas inducit privi- legium quoad jura privata. In other words that one may go to any extent to save his life or the life of another assailed by a menacing offender. And the law is that anyone may interfere to protect another who is in the pro- tection of the law. Protection is due from one good citizen or nation to an- other. For protection a bystander may interfere to preserve the public peace or to protect those assailed by a public and lawless malefactor. In the International decisions no new law was involved; simply the old organic law arose for respect and application. And this law is evolved from the old law which bears upon its face the expres- sion antiquity gave it, in the language for all nations and ages. It is ex- pressed in the language of the major- organic maxims and in this language expresses the good sense of nations. For lawful self-defense all other laws give way. A man has the right to change his name or his clothes when- ever he pleases. A fortiori he may do so to defend himself. Accordingly we see the submarine, governed by the old law; and likewise the automobile is governed by the law of the road. New inventions do not bring new laws into existence. This fact ought be known to every student; and also that to gain this knowledge he must study the old fundamental law of all ages. Therefore the necessity for knowing and citing the old law which if done would fully answer the claims of com- Modern law. — mercialism that "5,000 new principles are stated and developed each year; " also that the law is "the last decision by the last judge." The late cases which assume that new rules have come (such as Clark V. West and Warner v. Baker, and Gulling V. Bank) give countenance to the vicious claims of commercialism above referred to. (See Morning- star. ) Elsewhere we refer to the mandatory record and the judicial blindness and anarchy that surround the functions and operations of that record. This record like the maxims of old comes from antiquity and it is protected by its maxims exactly as is the law of self-defense which is the same for the ship and for the individual. The principles are the same. And so is the mandatory record and the maxims that shelter and protect it. But this is not understood by authors who think that the rule that one count in a pleading can be referred to, to aid an- other count in the same pleading is "new" and "modern" law. This rule was applied in Bogardus, 101 N. Y. 328 and is viewed as "new" law (Bradbury's Rules of Pleading, § 6.) But this rule is an old one and is found in Criminal Pleadings where- in the rules are generally conceded to be quite strict (See R. v. Waters, L. C. 71, 3 Gr. & Rud.; also Story; Rushton; Abatement). MODICA CIBCtlMSTANTIA FACTI JUS mutat : A small circumstance attending an act may change the law. MODUS EX CONVBNTIO VINCONT legem: The form of the agreement and the convention overrule (or over- ride) the law. See Consensus tolUt errorem; Consensus facit legem; Quilibet renunciare. Competent parties have the right to make any contract they choose if only they occupy and maintain fair ground between each other. Of course their contracts must not invade the rights of the state {Alterum; In pari delicto; Crimen omnia; Pactis privatorum). A lawful contract passes at once into the protection of the law and it is the duty and the obligation of a good gov- ernment to respect and to enforce such contract. The tremendous discussions in American law over the "Impairing of Contracts," are founded on the max- ims above cited. These are the funda- mental law. Sec. 17, Restatement. Retrospective laws are not allowed to impair the obligation of Contract. 186 THE LAW EESTATED Modus Et, etc. — GaUer v. Bull, L. C. 237, 3 Gr. & Paid. But a contract must be lawful. In pari; Solus populi: It must not de- tract from tlie interests, the welfare of the state. To illustrate: The state's attitude in Procedure must be respect- ed. No stipulation opposed to the state's attitude will be respected. Al- terum non Icedere; Res inter alios. It is for this reason that the parties cannot stipulate away the Pleadings. (Interest repuhlicce .) Herein lies the soundness of Campbell v. Gonsalus the Code case we so often cite. On its face it wholly rests on Guest v. War- ren (Eng.), but deeper down it is founded on the Prescriptive Constitu- tion, § 17, Restatement. IMondcl v. Steel, L. C. 77, 3 Gr. & Rud.) Form- al law is subject to the compacts that the parties make but not the law of substance. The latter is protected by the higher law and cannot be derogat- ed from by contract nor by legislation. Huntsmen v. 8. But matters that con- cern the parties only, they may con- tract about as they please. See Modus, 4 Gr. & Rud. M(»LTON V. C.IMROUX, 2 Exch. 487, L. C. 413, 3 Gr. & Rud, 79 ^'. Y. 541 ; In- sane persons ; contracts of. Mitchell. JMONDBl^ V. STBEL, S -M. & W. 858, cited 2 Sm, L. C. 934-037, 8th Ed,, L. C. 77, 3 Gr, & Rud. Cited, sees, 10, 22, 24, 25, Restatement. See Res AiJjudicata, also Collateral Attack. Only the manda- tory record is admissible to prove is- sues. "U'bat ought to be of record must he proved by record and by the right record." Contra scriptum: Fiunt cnim; S. P. Short r. Taylor. 137 Mo. 517 ; St. Joe V. B. R. 116 Mo. WMi. 38 A. S. (>2ii ; Palmer v. Humiston. 45 L,R.A.(N.S. i 640 ; Millira, 46 L.R..\.(N.S.) 274, 277, 278, citing Mondel. 1 Gr. Ev. 53G. Mondel is in accord with HriKtow v. ^y right, Uushton V. Aspinull, and Docaston v. J'ayne. Also with Campbell c. Caii-'^alus, Clark r. Dillon, and Tooker r. Anioux. It is an excellent C.ode case. It stands for the mandatory record. It holds that the allegations and denials must appear from the right record. It is opposed to the "Theory of the Case." It denies cases like (JuJling; and Bartlett V. U. 8. 227 V. S, 433, ■Oral evidence is inadmi.'^sible to alter or vary the case presented hy ihe phailinus. Campbell v. Consalus ; Quest r. Warren. The principle in Mondel is cognate to the Trilogy of Procedure. It should be studied along with the Code cases above cited ; also :Nalle v. Oyster, also Marsh r. I'ier and Martin v. Evans .■ Knickerbocker. A "cause of action" must appear from the Pleadings ; these are iurisdictional. Mon- tana, etc. r. Mifisoula County, 200 TT. S. 118, L, C. 106, 3 (ir. & Rud, See Story; Munday r. Vnil: 230 U. S, 352. MONEY II.\D AND KECEIVED: 36 L,R.A.(N.S.) 602. Juris praceptu: A'til- lus commodum: Qui scntit : Jure naturae. MONOPOLY: Mitcliel p Rri/nolds, L. C, 373, 3 Gr, & Rud. In pari: Lcicson's Cases. Minnesota Rate Cases, MONROE DOCTRIXE: 4 Gr. & Rud, MONTAGUE v. BENEDICT, Sra. L. C. ; Wife's contracts bind husband, when, Manby v. Scott, citing Wanamaker. MOORE V. C, 39 A. D. 724, 2 L, C. C. (B. & H.) 284, L. C. 21, 3 Gr. & Rud. An in- dictment must be certain ; charging one with adultery by alleging that he lived with a woman by a different name to the accused will not support a sentence. This is not equal to alleging that she was not his wife. A woman need not hear the name of her husband ; she may go by a different name. And so the court presumed Verba fortius. Shaw decided thi.s case. It is like R. v. Wheatley, L. C. 19, 3 Gr. & Rud. De non. This case is no more refined than Dovaston r. Payne, L. C. 217, 3 Gr. & Rud. ; nor Antisdel r. R. R. 26 Wis. 145, 7 A, R. 44 ; Pom. Code. 533. Code cases are equally strict. Campbell v. Consalus; Clark v. Dillon and Tooker v. Arnoux. The rnquirements for certainty are the same. See Garrett 3IOKALITY: The law commands. Juris prcrcepta: ]\iliil possumus: Summa ratio: Idem agens: Xullus commodum: In pari: l^ungnam res Jiumanw: The "manner of the Romans." See the Trilogy of Pro- cedure. MOK.YL OBLIGATION IS NO CONSIDER- ation. Cumber v. Wane. E.v nudo pacto. MORA REPBOBATUR IN LEGE: Delay is disapproved of in law. MOBIEK V. ST. PAUL R. R. 47 A. R. 793. Agent deviatin,^ from tlie service of the master does not bind him, McManus; 47 L.R.A. rx.S.) 1116. Qui sentit. MORNINGSTAR v. LAIAYETXB HOTEL Company, 2n X. Y. 46.5, 52 L.R.A. (X.S.) 740. Innkeepers; their liahility for refusing entertainment to a guest. What is a justification for refusing. Notes 52 L.R.A. (X.S.) 740-746; also Calye's Case, L. C. 356, 3 Gr. & Rud. Appellate Procedure: Proof of ir- relevant matters will vitiate ichat is otherwise a good and sufficient de- fense. A guest sued the hotel and it justified refusing him entertainment upon the ground that he luid refused to pay for what had already been fur- nished him. This defense was both pleaded and proved and grounded the justification defense and was held suf- ficient to defeat a recovery. But more than the plea was proved; as the hotel called witnesses to prove that the plaintiff had a reputation for being querulous at other hotels. But there was no afliirmative recovery on this irrelevant matter; it did not augment the recovery of the defendant who merely defeated the plaintiff's action. However the cause was reversed and a new trial ordered. Utile per inutile non vitiatur might well have been applied to the plaintiff. Also the rule that it is sufficient if the substance of the issue be proved. Er- ror without prejudice is no ground for reversing a cause. Dc minimis non curat lex. Apparent trifles are some- times a cause for reversal where they TEXT-INDEX ISl Morningstar, etc. — could or might have worked injury. Windsor v. McVeigh, L. C. 1, 3 Gr. & Rud. But generally substantial prej- udice must be affirmatively shown by the appellant. De non. tJnless he is injured he cannot complain. The learned court quoted Von Ihring's Struggle For Law. We think the quo- tation would bo applicable in a case like Windsor but not to Morningstar. It is sufficient if the substance of the issue be proved. To illustrate: An indictment for selling one pint of whisky will be sustained although more is shown where the selling is the gist of the offense. Or, if one asked for a divorce on the ground of adultery and this were proved also cruelty and other causes which were not alleged the irrelevant causes ought not vitiate. Or, if one sued upon a note for $25.00 and proved this case but over and be- yond other notes were given in evi- dence over objections such irrelevancy ought not vitiate what is good and sufficient, unless judgment was entered for more than what the allegations and the proofs called for. Or, if one were sued for a trespass to Blackacre and the proofs showed a trespass to more than to Blackacre should not the judgment be entered for the trespass alleged and proved? Or, if one were indicted for a crime and irrelevant evi- dence were admitted of the commission of collateral crimes would the verdict of guilty of the crime alleged and proved be set aside? Should a recovery resting upon al- legata et probata be set aside for ir- relevant matters? If the allegata et probata were plenary in Uorningstar and the verdict and the findings were against both the allegations and the proofs ought not the court set aside such findings and in a civil case per- emptorily order judgment? Bunnell V. Wilder, L. C. 18S, 3 Gr. & Eud. Irrelevant evidence, though cumu- lative is material error. R. v. Gibson. Should new trials be ordered where no other or different conclusions could be reached? In any trial would not the defense to Morningstar's Case be a bar to his recovery? Interest rei- publicw ut sit finis litium. Lex non logit ad vana. Where a judgment is supported by its record then it can only be over- turned for prejudicial error assigned and shown from the statutory record. Ut res magis valeat quam pereat. Error icithout prejudice ivill not vi- Morningstar, etc. — tiate. To illustrate if a judge w^ere sued for defamation, for words spoken in the course of a trial before him, and he pleaded his justification clearly and unquivocably, and beyond this defense the plaintiff's general reputation was proved over his objection simply be- cause it was not pleaded and he was defeated could this plaintiff reverse the judgment only that further mat- ter might be pleaded and proved or that the irrelevant matter might not be referred to? General principles of review for error. If the mandatory record is opened and it shows that the judgment is coram judice (See Windsor v. Mc- Veigh, L. C. 1, 3 Gr. & Rud. ; Collater- al Attack, Res Adjudicata), then the judgment will be affirmed unless, and except, that the statutory record (the bill of exceptions) attends the manda- tory record and an Assignment of Er- rors upon the matter of the statutory record enumerating and defining er- rors shown thereupon properly objected and e.\cepted to and nowhere waived or condoned {Consensus tollit error- em), and properly argued and counted upon and affirmatively showing there- from that prejudicial error to the ap- pellant resulted. Error upon the statutory record is not presumed prej- udicial unless it affirmatively appears to be so. It is otherwise with error appearing from the mandatory record. Windsor v. McVeigh, L. C. 1, 3 Gr. & Rud. Minnesota, 194 U. S. 43. A recovery icill he upheld if pos- sible. Ut res magis valeat quam pereat. Interest rcipublicce ut sit finis litium. A court will sua sponte reverse a judgment for error appearing from the Mandatory record but not from the statutory record. (See As- signment of Error, 2 Gr. & Rud.) The mandatory record concerns the state but the statutory record does not concern the state. From these deduc- tions arise many important rules. There are inherent differences be- tween matter of substance and matter of form. To present these respective matters are the respective functions of the two records above mentioned. If these records are jumbled and confused chaos results to the law of Procedure. These records are governed by the logic and the philosophy of law and not by statutes and decisions. (§§ 12-14, Restatement.) Lawman. 42 App. Cas. D. C. 202. Suppose that the court had entered 188 THE LAW RESTATED Morningstar, etc. — judgment for Morningstar upon the al- legations and admitted facta of the case ought not a court of review to set aside such a judgment? At a second trial what can Morn- ingstar gain over the admitted facts of the case ? Will he not have to meet the same defense already pleaded? Also another that he is a chronic fault finder at regular dishes and seeker of dishes to suit his whims and caprice? And must not he plead a tender of something for the extra services he sought? Now can he gain anything from a new trial? Lex non coget ad vana seu inutilia peragenda. Compare Morningstar with Malone V. Jones, 91 Ks. 815, 53 L.E.A.(N.S.) 328 [error without prejudice is no ground for reversal]. JTOBTGAGE: "Once a mortgage always a mortgage." Howard v. Harris, Wh. & T. L. C. Eq. ; See Oral Evidence, 4 Gr. & Rud. MOSS V. GAI^LIMOBi:, Sm. L. C. ; Land- lord and Tenant ; Attornment by the ten- ant upon sale by the lessor. MOSTYN v. TABKIGAS, Sm. L. C, L. C. 274, 3 Gr. & Eud. Jurisdiction ; Venue ; Local and transitory actions. Liability of soldiers and militiamen. 53 L.H.A. (N.S.) 1141-1179, ext. n. MOTIONS: 4 Gr. & Eud. Equity. MOVING PICTURES: Eegulatlon of. 40 L.R.A.(N.S.) 193. MULTIFARIOUSNESS: 4 Gr. & Eud. MULTIPLICITV OF SUITS: King V. R. R.; Brvqqer; 80 L.E.A.(N.S.) 849, 131 A. S. 20-51, n; 40 L.R.A.(N.S.) 464, n. MULTITUDO IMPERITORUM PERDIT curiam: A multitude of ignorant counsellors will destroy a court. Cited, sec. 23, Restatement. This maxim will bear a far more liberal construc- tion and like this: A court made up of ignorant and bad lawyers will de- stroy a government. All history teaches what a failure of the adminis- tration of justice will do. And great judges have fully admonished. 2 Kent 8-12; Marshall spoke most plainly. Lange v. Benedict, L. C. 159, 3 Gr. & Eud. n. Upon the lawyer, his judiciary, his literature and his teacliing depend the moral interests, the education and progress of society. Courts are the most powerful of instructors; also protectors. But they are failing in their functions when their time is consumed in wallowing through the mire of the jargon of judicial anarchy. See the conflict indicated in Gulling, and in Jansen v. Hyde; Story on the one hand and Thompson on the other hand; at the discussions over Clark V. Dillon in New York. Inquiry of Multitude, etc. — students will disclose how these mat- ters are taught in the schools. Ask if the general demurrer can be waived and in most eases you will be told that its technicalities are now abol- ished by statute or by rule of court, or by the "late" case. See Baker v. Warner, U. S. ; Eenry v. Hilliwrd, 49 L.R.A. (N.S.) 1; Venners v. McKee, 44 L.E.A.(N.S.) 737, n (a valid judgment may rest on an In pari delicto state- ment) ; Merchant's, 42 L.R.A. (N.S.) 996, 998 (a departure is demurrable but it may be waived, i. e., the state- ment may call for dollars and the judgment may give acres — Frustra probatur quod probatum non relevat is denied). See observations sub Abatement; Feudal Lawyer; Litera- ture. Vainly orators in Bar Associations cry out. They proclaim truly that the "ignorance of the young Bar is appal- ling." "That it is too late to talk re- form that revolution is demanded; that we must return to the fundamen- tals." And it is these fundamentals that are openly denounced in much of the literature and in the schools. The literature of the generation leads away from the fundamentals not to them. See Alterum non Icedere; In prossen- tia majoris. Take Campbell v. Con- salus, Clark v. Dillon, Tooker «. Arn- ouoc, Mondel v. Steele, to students and ask for the principles involved and see what the responses are. Name those principles in the language of all na- tions and see if these have been famil- iarized? Ask for the fundamental principles of the Code and note and compare the responses. MULTI UTILIUS EST PACCA IDONBA effundere quam multis inutilibus homines gravari : It Is much more useful to pour forth a few useful things than to oppress men with many useless things. Maxims. The truth of this maxim is well illus- trated by considering the Trilogy of Pro- cedure and then comparing results with the efforts of the Feudal Lawyer and his followers to found and to vindicate the law of Procedure upon, and with cases. Look at the discussions around Jackson V. Pesked also those cases that assail Verba fortius. Here • let us asli if a comprehension of the Trilogy of Procedure is not more clearing and helpful than are great rows of Digests and Cycs that cither ignore or lead away from the fundamentals. Maxime ita dicta. MUNDAY V. VAIL, 34 N. J. L. 418, L. C. 79, 3 Gr. & Eud. Cited, sees. 7, 9, 22, 25, Restatement. Pleadings are juris- dictional. A court gets its authority to adjudicate from the Pleadings filed. De non apparentibus. A judgment is coa- strued by and is limited by the Pleadings ; if not authorized by the Pleadings, it Is TEXT-INDEX 189 Munday, etc. — void. Vicksiurfj i}, Henson ' Mondel v. Steel; Campbell v. Consalus; S. v. Muench; Thomas v. P. A court is bound by its record. See cases cited with Mun- day, in Equity In Procedure. Tliis case Is quoted and followed in Reynolds v. Stockton (U. S.), and tine latter in Ticks- hurg V. Henson. Also -in Saclie v. Wal- lace. Compare Munday with Gulling v. Bank and its coa:nate cases : also "Theory of the Case." Qarrett; Multi utilitits. Anent Munday it seems well to call attention to the fact that a right ap- preciation of this case should be had. It Is the foundation of Reynolds v. Stock- ton, L. C. 79a, 3 Gr. & Rud., which be- came the foundation of Vicksburg v. Ben- son. Nalle V. Oyster, 3 Gr. & End. ; Minnesota, 194 U. S. 48, ante, is consis- tent with these cases. Elsewhere we observe of them and give to them the at- tention they deserve. They stand for the Trilogy of Procedure, §§ 1-13, Restate- ment. They should be read in the light of these sections. A right impression is most helpful, and important in relation to Pleading, judicial records and jurisdiction. For this im- pression lay all of the above cases open before you, also Knickerbocker, Camp- bell V. Consalus, Clark v. Dillon, Palmer V. Humiston, Rushton v. Aspinall, L. C. 5, et seq., 3 Gr. & Rud. ; Dovaston v. Payne, L. C. 217, 3 Gr. & Rud. ; Qoldham v. Edwards stated under the title Litera- ture, also Mondel v. Steel, L. C. 77, 3 Gr. & Rud., quoted and followed In Milbra. 8. v. Muench, SacTie v. Wallace, and draw your own conclusions as to our observations under the title Feudal Lawyer, Literature, Logic. Mandatory Record, Modern Law, and "Theory of the Case." Prom all of these cases look at the few fundamentals involved in the interminable discussions over De non. On the one hand look at Story and Munday and on the other hand Thomp- son and Culling. Look at the struggle over Clark v. Dillon (Verba fortius), and see if the condition does not justify references to it as the "legal jungle," and its Babel : if it is not judicial anarchy. (See Feudal Lawyer.) In the light of the impression so gained determine which is the best work on Pleading, also which is the one fit to be placed in the hands of a student. (See the titles Chitty, Pomeroy, Stephen and Tidd ; authors classified: Literature.) Code cases are Bowen v. Emmerson, S. V. Muench, Saclie v. Wallace, Camp- bell V. Consalus, Clark v. D"^on, Knick- erbocker, Antisdel v. R. R., Gulling, and cases cited in connection with these cases. Look connectedly at all of these cases and see if it is proper to attempt to Instruct away from the fundamentals in- volved? Look at these fundamentals (§1 1-13, Restatement) and see if they are not taught in a hazy and fragmen- tary way, if indeed they are taught at all by the "theory-of-the-case" school? (See Maxims; Modern law.) See if Pleadings and Jurisdiction can be irre- latively taught and away from Res Ad- judicata and "Due process of law"? In questions of Jurisdiction may not the Pleadings be opened without regard to the objections or the compacts of the par- ties {Campbell v. Consalus; Knickerbock- er, citing P. ex rel. Tweed, a criminal case governed the same as a civil case) ? See the fundamental principles (§§ 1-13, Restatement) and see if these principles Munday, etc. — have been taught by cases? Is It not better to clearly perceive and understand a few principles than to study a multi- tude 01 cases which have failed to be comprehended by the profession (Multi utilius) 1 Are not the Fundamental prin- ciples the fountains? Have the oppos- ing cases made or have they broken the law? Pleadings are the juridical means of investing a court with jurisdiction of a subject matter to adjudicate it, Minnesota, supra. Now what work presents pleading under this light — this definition which is so necessary for a right start? (See Story's Equity Pleading, § 10, quoted § 47, Hughes' Equity In Procedure ; Logic.) Must not a student have right and true definitions of Pleading, Aider, Mandatory record, Statutory record. Jurisdiction, Res Adjudicata and upon what it depends, of Due process of law and the interactions of these subjects in order to be a prac- titioner? Are not all of these matters re- lated to Pleading and ought not any work on Pleading set forth and explain the above cases and the principles they illustrate? Now which one does so much? (See Literature; Logic.) Carefully read Dovaston v. Payne, L. C. 217, 3 Gr. & Rud. in Smith's Leading cases, and judge Sergeant Williams by his brief, to instruct the court of Verba fortius, and Eyre J. by his equivocal views and the broader and deeper views of BuUer J. who criticized the brief of Sergeant Williams, and who character- ized Coke's three degrees of certainty as a "jargon of words." See where the Code expositors got their ideas of ex- plaining the Code. We have tried to il- lustrate this fact under the title Litera- ture, also Logic. Is it not apparent that Pleadings un- folded from the Trilogy of Procedure would be quite unlike those unfolded from Coke's three degrees of certainty? (See §§ 1-13, Restatement.) From Munday much can be said to indicate the superficial and empirical writing and teaching of the law during the 1st generation. This fact will ap- pear by inspecting the authors on Pleading, Evidence, Practice, Jurisdic- tion and Constitutional law who have written. Of course teaching has not been higher than the literature. The writing, the teaching and the standard of the profession are all on a level. What has been taught will appear from the sections of the law Restated; also the titles Ktiahton, Story; litera- ture; Logic; Gulling, Henry v. Hil- liard and Feudal lawyer. A funda- mental, a Constitutional and an or- ganic principle is involved in Munday. (See be non apparentibus.) It is a case for all systems; it is an excellent Code and Practice Act case. It re- affirms Story's sections and the Trilogy of Procedure. ( See Trilogies ) . It ac- cords with Slacum v. Pomery, which is one of the best Federal cases. Mun- day was quoted and followed in Reyn- olds V. Stockton, L. C. 79o, 3 Gr. & Rud. When this case came it became 190 THE LAW EESTATED Munday, etc. — the beginning of a new series, as will appear from Vickshurg v. Eenson. In Nalle V. Oyster Judge Pitney cited Slaeum. The principle in Munday is ably set out and vindicated in Pal- mer V. Humiston (0) ; and in Milbra (Ala.) ; the struggle over this prin- ciple is extendedly discvxssed in S. v. Miiench by Judge Lamm in Missouri. In Sache v. Wallace (Minn.) Judge Brown stated and argued the prin- ciple with ability. Every Code prac- titioner should look at the Trilogy of Procedure and its cognate maxim Quis, quid, and these cases and con- sider how the maxims of antiquity have been paraphrased in the modern Codes. Anent these maxims, we point out how necessary facts and training have been neglected. Instead of grasp- ing the major, organic maxims and construing by them they have been denounced and led away from. (See the titles, Maxims; Modern law.) It is a strange fact that lawyers trained to understand tlie importance of the Division of state power in a Constitutionalism should have been quiet and viewed with complacent se- renity the advocacy of the "Theory of the case." (See Story; Thompson.) It is done as will be seen by looking from the title Story; Gulling. This euphemism introduced and taught the student gets error into his head that must be got out before he can make real progress. (See Trilogies; Wind- sor V. McVeigh.) Procedure lies at the base of a right understanding of every branch of the law. To deny this and to teach the "Theory of the case" is to set and to drive the wedge of judicial anarchy into the heart and vitals of the logic and the philosophy of the law. Students misled and so affected must start and learn all over again before they can go forward. To support these conclusions we ask that the sections of the law restated be carefully considered. Therein Munday is cited in important relations. Great lawyers have long said that the law consists of but a few funda- mentals well understood and worked out. Hamilton said as much and so have others whom we cite. Whether or not this be so may be judged from the sections last cited. Tliese sections present phases of the Division of state power by limiting the power of courts by their record. And so it is that the greatest principle in a Constitutional- Munday, etc. — ism is involved. The rule that a court is bound by its record is a rule of Con- stitutional law. (See In Prcesentia majoris.) Now why have courts and authors overlooked this most import- ant and instructive fact? Such is tlie teaching of the Feudal lawyer to make way for the operation of his motto that "Parliament is omnipotent." In accordance with this he has insisted that the necessities for the operation of the judicial department depends up- on the letter of the statute or of the local and fiat Constitution. Herefrom look and judge of the "Theory of the ease." Herefrom consider the conse- quences of clioosing Thompson instead of Story. Look at the fundamental principles in § 1 in the Restatement of the Law and then at Gulling and its cluster of eases. From the sections cited is it not apparent that a few maxims from antiquity lie at the base of a Constitutional Procedure? Now have cases taught this very important lesson? What cases can be picked to stand for those maxims? Melius est petere fonties quam sec- tari rivulos, 4 Gr. & Rud. MUNICIPAI/ BONDS: Records support- ing are liberally construed. Qreen County Bonds, 211 U. S. 582 ; contra cases, lit res. Aurora v. Gates. 125 C. C. A. 329 53 L.R.A.(N.S.) 982-1009, ext n. MUNICIPAL CORPORATIONS: 4 Gr. & End. Liability for negligence. Hill r. Boston,, 2 Gr. & Rud. Rochester; White- house. For tort of officer. Loonly, — la. — , 51 L.R.A.(N.S.) 546, n. Water supply ; liability for. Wigal, — W. \'a — , 52 L.R.A.(N.S.) 465, n. Estoppel to deny contract. First Nat. Bank v. Em- metshurg, 157 la. 555, 53 L.R.A.(N.S.) 082-1009, ext. n. Eatiflcation of illegal contract. Veil v. Mayor. 126 Tenn. 223, 53 L.R.A.(N.S.) 1009-1041, ext n. MUNICIPAL COURT ACT OF CHICAGO: Its Procedure must conform to funda- mental law. Walter. 250 111. 420. MUNN V. ILLINOIS, 94 U. S. 113; Weems, 214 U. S. 356. Private property devoted to public use is subject to public control. MURRAY'S LESSEE v. HOBOKEN CO., IS How. 272. Due Process of Law deflned. L. C. 219, 3 Gr. & Rud. MUTUALITY; PRIVITY: In Contract. Cooke V. Oxleii, L. C. 321, 3 Gr. & Rud. Rul. Case Law, 686-692. MUTUALITY IS EQUITY: Both sides must be bound or neither. Cooke. MUTUAL LIFE INS. CO. v. DINGLEY, 100 F. 408, 49 L.R.A. 132. A general denial is limited by a particular" state- ment. Dickson v. Cole, L. C. 34. 3 Gr. & Rud. Verba generalia restringuntur. MUTUAL PROMISES: Cooke, h. C. 321, 3 Gr. & Rud. MYERS V. ERVVIN, 2 O. 382, L. C. 150, 3 Gr. & Rud. Abatement pleas ; technical rules. TEXT-INDEX 191 N NAtl-E T. OTSTEB, 230 U. S. 165, 46 Chic. Leg. News, 26. Cited, Preface ; al- so sees. 2, 12, 22, 25, Restatement. Distinctions between the mandators ("strict") record and the statutory rec- ord. The mandatory record supports a judg- ment and protects it in Appellate Pro- cedure and from Collateral Attack and is the record that is pleaded to show Res Adjudtcata and "Due Process of Law." See 1 C. J. Cyc. 45, 66, 100 (identity of causes how proved). Judgment is not given on the ^'entire rec- ord" but only on the mandatory record. (See Slocum'r. Ins. Co.; Fulton Co. 200 U. S. 287, 295-297.) Wherever the Judgment is offered in Evi- dence the mandatory record attends and is opened without regard to objec- tions, exceptions or Assignments of Error. Windsor v. McVeigh, L. C. 1, et. seq., 3 Gr. & Rud. The pleadings lielong to the mandatory record and are opened for jurisdictional purposes (Quis. quid, coram quo: Story's Equity Pleading, 10, quoted § 47 Hughes' Equity ; Campbell v. Consalus) ; Garrett. See North Carolina. The statutory record is opened only as called for hy an Assignment of Errors. Windsor v. McVeigh, Morningstar. It was given bv The Statute of Westminster, Edward II. 12.36. Without it the protec- tion of formal procedure would depend upon rules of court. The statutory record is not opened if the Mandatory record is fatally defective. Hot Springs, 110 Va. 240 ; Windsor, L. C. 1, 3 Gr. & Rud. The general demurrer cannot be waived. Nolle; Hotack v. Miller; Camptiell v. Consalus (N. Y.) Pleadings; Collateral Attack : Consensus tollit errorem. Cragin V. Lovell, 109 U. S. 194. Quis, quid, coram quo Is the maxim that tests a pleading when it is opened for jurisdictional purposes. See Chapter II., Codes ; Campbell v. Porter, L. C. 2, et sea., 3 Gr. & Rud. Bowen v. Emmerson, Demurrer. See 164 Calif. 343, 43 L.R.A. (N.S.) 5S1 ; Garrett. The Mandatory record is governed liy the Prescriptive Constitution and not by local and flat law. See Chapter v. Codes. Nolle is consistent with Standard Oil Co. V. Mo.; Davis v. Jacksonville Line; S. V. Muench; Thomas v. P. (111.) Munday V. Vail; and Warren v. Guest. It is an excellent Code and Practice Act Case. It expounds principles of Universal and Con- stitutional interest and its references to local and fiat law does not alter the facts. Indeed the court might have spoken as broadly as the court did in Oakley v. Aspinwall. Statutes often re- affirm the old and necesary law. This was what the Code did and this fact should not be led away from and silted over and covered with jargon. Nolle speaks plainly for the Mandatory rec- ord and informs us that it is the Grand, the Principal record. It is the record wit'iout which all foundr^d thereon falls. Detile fundamentum fallit opus. Quod ab initio. , , . , Evidence found on a record which unll not pass the general demurrer and its cor- Nalle, etc. — relatives cannot he considered for any purpose. The sprout savors of the root and goes the same way. Frustra pro- batur quod probatum non relevat. Gar- rett. Herefrom appears the best f,'iting for the rule that on a motion in Arrest or at the stage of Collateral Attack the evidence will not be considered. Hot Springs, supra; (See Slocum, supra). Irrelevant evidence ought not be afterward declared relevant arid a sufficient founda- tion for a judgment. Slocum. Debile fundamentum. There can only be a review in the court ad quern vhere there was a real bona fide view in the court a quo. But it is obvious that there was no view where the court took for its authority and di- rection a void record, a record that is cause for arrest. A record that will not l^ass the general demurrer is offensive to the state and its interests cannot be waived. Res inter alios. Such a record is no authority. The principles laid down in Nolle are from the Prescriptive Constitution and are above local and flat law. ( See Chapters I. & II., Codes.) NAMES: Of plaintiff and of defendant must appear with certainty. Quis. quid, coram quo. This maxim requires that the wronged person describe himself. Fabula: also the defendant, the wrong he did and the amount of the damages. See Ad Damnum; McDermott v. Severe. One may adopt any name he pleases, jlfoore V. C. Middle initial is no part of a name. Keene, 3 Pet. 1. See Wie- bold, L. C. 98, 3 Gr. & Rud. ; Parties. 4 Id., also in Equity. Nihil error facit nominis ; Prwscntia de corporis; Idem sonans. NASHVILLE TRUST CO. v. SMYTHE, 04 Tenn. 513, 45 A. S. 749. Transfer of the debt carries the security. Expressio eorum. NATIONAL, 196 Mass. 458, 14 L.R.A. (N.S.) 561. Foreign corporation may validate its contract by filing its papers and then suing upon the contract. § 13,293 Equity. NATURA FIDE JUSSIONIS SIT STRICT- issima juris et non durat vel extendatur de re ad rem de persona ad personam, de tempore ad tempus ; The nntnre of the contract of suretyship is strivtissimi juris. and cannot endure nor be extended from thing to thing, from person to person or from time to time. This maxim is in- corporated in the present law. Rees, L. C. ■.y.'Aa, 3 Gr. & Rud. NATURA NON FACIT VACUUM, NEC lex supervacuum : Nature makes no vac- uum, the law nothing purposeless. Lc.t non cogit ad vana. NAVIGABLE WATERS: Relative rights of the citizen and of the government. 127 A. S. 34-59, ext. n. NECESSARIES: Infant may contract for. Peters v. Fleming. See Infants. Also the insane. Molton v. Camroux, L. C. 313, 3 Gr. & Rud. NECESSITAS INDUCIT PRIVILBGIUM quod jura privata : With respect to pri- vate rights necessity privileges a person acting under its influence ; or in other words. In the domain of jus privatum 192 THE LAW EESTATED Necessitas, etc. — necessity imports a privilege. Lex non exacts definit; Expressio eorum. Neces- sity knows no law. Constitutions and statutes yield to it. In prtesentia ma- joris: S. ex rel. Benson v. Sheppard, 4 Gr. & Eud. Oakley v. Aspinwall, L. C. 222, 3 Gr. & Rud. See Equity. The operation of the Trilogy of Pro- cedure is from necessity in a constitu- tionalism. See Prescriptive Constitu- tion. NECESSITY: This is the basis of the law of Self-defense. 4 Gr. & Rud. As a defense it is strictly limited. See Bo- num necessarium. It is the basis of many rules of evi- dence ; 4 Gr. & Eud. Kquity. Omnia prwsumuniur contra spoliatorem. NEBDHAM v. THAYEB, 147 Mass. 536, L. C. 536, 3 Gr. & Eud. Judgments may be set aside for fraud. Ex dolo malo. Due process of law requires the coram judice proceeding. 50 L.E.A. (N.S.) 1064 (perjury and fraud). NE EXEAT BBGNO (BEPUBLICA) : That he leave not the realm. See Kquity. NEGATIVE AtlEGATION. Who must prove. Bonnell v. Wilder, L. C. 185, 3 Gr. & Eud. NEGATIVE PREGNANT PLEADINGS. Se 4 Gr. & Eud. NEGLIGENCE: See Tort; Trespass. Vo- lenti; Res ipsa loquitur. In jure, 4 Gr. & Eud. See Negligence and Compensa- tion Cases Annotated. Allegata et prol)uta must correspond. Gre- co, 84 lis. Ill, Am. Ann. cases, 638, n. ; Bristow V. Wright, L. C. 135, 3 Gr. & Eud. By interstate employees. Rol)erts In- terstate Employees, 109-119 ; North Car- olina. Imputed negligence. Thorogood v. Bryan; Farrar v. Street B. R. 249 Mo. 210, 4 N. C. C. A. 3Y8-389. bee Negligence and Compensation Cases, Annotated. NEGBO: Who Is a. Johnson v. Board Ed. — N. C. — , L.E.A.1915A, 828. Is a poor litigant. Burks v. Bosso, 3 Gr. & Eud. NEMO AI.I.E6ANS SUAM TUBPITUD- inem audiendus est : No one alleging his own turpitude is to be heard as a wit- ness. See Allegans. Falsus. NEMO DAT QUI (OR QCOD) NON habet. No one can give who does not possess. A thief can give no title. Bent- ley, 2 Gr. & Rud., Nil Dat. NEMO DEBET BIS VEXABI PRO UNA et eadem causa : No one ought to be twice vexed for the same cause. Harriot; Irvterest reipu-hlicw ; Res Adjudicata. This maxim is defended by the Trilogy of Procedure and its cognates. Former jeopardy. NEMO DEBET ESSE JUDEX IN PKO- pria sua causa : No one should be judge of his own dispute. Cited, sees. 11, 14, Eestatement. This maxim Is a part of Idem age.ns et patiens esse non potest which is extendedly discussed in Hughes* Equity, §§ 509-522. It is held to be the first principle in the administration of justice in New York and in one of the most instructive decisions of that state. It Is the best discussion on Nemo debet esse judex. It surpasses the Dimes Case, L. C. 176, 3 Gr. & Eud. Oakley v. As- pinivall, 3 N. Y. 547, h. C. 222, 3 Gr. & Eud. Res est misera u,H jus est vagum et in- certum : It Is a miserable state where the laws are vague and uncertain. Nemo debet, etc. — Multitudo imperitorum perdif curiam: A multitude of ignorant lawyers will des- troy a court. From these roots there come luxuri- ant sprouts when the prominent and popular orators of New York address Bar Associations. These orators bold- ly orate and proclaim that "revolution is demanded," and that the "adminis- tration of justice is degenerate and is left to an ignorant and incompetent Bar, both on, and oflf the Bench." In other relations we quote these orators, and we think ministers of truth. They point to the fact that "the ignorance if the Bar is appalling" and is not fitted to stay the rising tide of judicial anarchy; nor to go forth as scholars teachers and leaders. In other ages the Jews resented attacks upon their laws and the cus- toms of their courts by indicting the greatest of the Apostles for being "a preacher of sedition" and "a pestilent fellow." It was this indictment that the Roman denounced by ■ telling the rabid prosecutors that such charges would not pass the general demurrer (see Alterum) . That it described no offense known to the laws of Rome (R. V. Wheatley, L. C. 19, 3 Gr. & Rud.; U. S. V. Cruikshanh, L. C. 232. 3 Gr. & Rud; in the civil case the rule is the same, Rushton v. Aspinall, which Kent quoted and followed in Bartlett V. Crazier, L. C. 5, & 6, 3 Gr. & Rud.; Garrett v. L. & N. R. R. 235 U. S. 308 which cites McAllister v. Kuhn, L. G. 3, 3 Gr. & Rud. § 242, 1 Gr. & Rud.; Cragin v. Lovell, 109 U. S. 190). And that they "must prove the charge as laid." From the above authorities the Tril- ogy of Procedure (§ 1 Restatement) can be picked. This is 1. De non apparentihus ; 2. Frustra probatur; 3. Verba fortius. In the Restatement sections we show that from this trio of maxims the logic and philosophy of Procedure can be picked. If cases make the law, then why are not the above trio of maxims, the law in every state; for decisions, from all states have vindicated these max- ims, not consistently to be sure, but they have been upheld in fragments here and there. And Codes have re- affirmed them. (Cockerell, 50 L.R.A. (N.S.) 1-32.) They are the law in England. (Rushton, Dovaston v. Payne, R. v. Wheatley, L. C. 5, 217, 19, 3 Gr. & Rud.; Bristow v. Wright, L. C. 135, 3 Gr. & Rud. (Allegata et probata must agree). And generally TEXT-IISTDEX 193 Nemo debet, etc. — the Federal court lias respected these cases and principles. {McAllister v. Kuhn, smiXJ. S. V. Cruikshank.) Also in New York as in Bartlett and Van Leuven v. Lyke, L. C. 14, 3 Gr. & Eud. will show. In Van Leuven, the scien- ter was not alleged for trespass done by a hog and the judgment was ar- rested as it was in the case cited in Rushton where the damage was done by a bull. The defect in these cases was not supplied by proof, nor aider by verdict. Nor should it be. Gar- rett. Knickerbocker. Now are there greater principles of the law than those above referred to? And let us ask if greater Code cases can be cited than are the above? And are not these principles great Uni- versal, Constitutional principles nec- essary and indispensable for the oper- ations of the judicial department in every Constitutionalism? (See §§ 1- 26, The Law Restated.) Now why have not New York authors and courts cited the above data for authority and as broadly as a great principle was dis- cussed in Oakley v. Aspinicall? Why did not Professor Pomeroy cite and explain this data? (See Pomeroy.) To-day it seems that New York an- notators are awaiting decisions to de- termine whether or not the Allegata et probata must agree. (40 L.R.A. (N.S.) 1087, 1088); under the title Maxims we refer to Coke and his sys- tem of citing the cases to determine the law; (See Maxims.) His ideas were followed by New York until the reports of the lower and intermediate courts are discarded for something late. No longer are Abbott, Barbour and Howard cited and especially out of New York. The citation of the lower courts in New York are of but little consequence except in New York. They are a mass of confusion as to the above principles. Not one of these are settled in that state. Elsewhere we discuss them in reference to Camp- bell V. Consalus, Clark v. Dillon and Tooker v. Arnoux. (See Codes Re- statement.) They are introduced in §§ 1-26, Restatement. There are Feudal lawyers in New York as well as Roman Praetors. The latter class do not do all the orating nor directing of the courts. For let us observe that in Tyler's Pref- ace to Stephen's Pleading two opposing types are mentioned and one is Charles O'Connor and the other is David Dud- Nemo debet, etc. — ley Field. Also that there are sup" posed great judges in New York, who, cannot find anything in organic law that forbids that one sit in his own cause. (See Feudal Lawyer §§ 509- 522, Equity In Procedure). Also that there are other orators in New York who address Bar Associations and pro- claim that the highest equipment that a lawyer can have in order to be a cosmopolitan lawyer is a thorough knowledge of the New York Procedure. These optimists fail to see that all of the above principles are shrouded in mist and chaos; also that the Code has failed and that one sect construe it so "every man can be his own lawyer." Baylies Code Pleading, 1-4; while oth- ers are struggling over Clark v. Dil- lon (Bradbury's Rules of Pleading pp. 9-16; 1564-1570). The attempts of other states to follow New York are reflected from Gulling and its cluster of cases; and the observations of an able judge in Atlantic Coast Line R. R., 52 Fla. 165. (Cited in Equity In Procedure.) In relation to the title Literature, we refer to New York au- thors and their peculiarities. From the cases, the lawyers, the authors and the orators of New York it seems fair to say that not one of them have so presented any of the above prin- ciples that it was comprehendible for a needy and awaiting profession both at home and abroad. Late cases from New York show that the court is much perturbed (See Clark v. Vi'est which is mentioned in another connection ) . In brief we believe that almost all we observe of the Feudal Lawyer and of his literature is very applicable to the lawyer and his establishments in New York. (See Feudal Lawyer; Literature. ) In the light of the above observa- tions how can it be said that cases have settled the law in New York? If so which of the above have been settled ? Where is there a greater Code ease than Bartlett; now where has it been accepted and explained as a Code case? Where has one of the maxims we herein cite been cited and explained in New York? If cases make the law, then, is not 'Nemo debet esse judex in propria sua causa (No man shall be judge of liis own dispute), well made? Only look at the cases that can be cited to make it the law such as Dimes v. Grand Junction Canal, L. C. 176, 3 Gr. & Rud. 194 THE LAW KE STATED Nemo debet, etc. — , and Oakley v. Aspinwoll L. C. 222, 3 6r. & Rud. If cases make the law, then these cases ought to stand for something. Now note that each of these cases plainly recognize a higlier law than local and fiat edicts; that each of these cases can be cited to support the Prescriptive Constitution which is above all other laws. The maxim last cited is a part of the sermon on the Mount, wherein we are instructed that "Ye cannot serve God and Mammon." Of this there are many parts ramify- ing the various branches of the law and as is shown in §§ 509-522, Equity In Procedure. To attempt to elucidate that great principle by cases narrows and befogs the vision and the neces- sary impression which must be given for the right and sound instruction of a fundamental of the law. If cases make the law then the rule in question was as well made as any rule can be. It was made by the greatest of cases and it was eloquently and impressively stated and defended as a rule of public policy essential for the intelligent and patriotic adminis- tration of justice; that respect for it was necessary to win the respect and confidence of the public, the loyalty and devotion of the citizen and thus the perpetuity of government. Both the Dimes Case and the Oakley Case can be cited to sustain the view that there is a Prescriptive Constitu- tion and that this must be considered in the construction and the operation of all other laws. Lex non exacte de- finit sed arhitrio Tyono viri permittet. In prcEsentia majoris cessat potentia minoris. It is these cases and these principles that the Feudal Lawyer re- jects and turns from. In relation to the title Feudal Lawyer, we specify peculiarities and facts relating to the Feudal Lawyer that throw needed light over his training and development, also his ways which are the ways of judi- cial anarchy. Tlie application of fundamentals in New York is noither consistent nor encouraging to those who advocate or- ganic and primary law. In notable trials in that state the Fevidal lawyers shift the channels of fundamental law and as we shall see not only declara- tions of the Prescriptive Constitution (2 Kent, 8-12), but these reaffirmed by the courts of first importance in New York. The Code simply re- affirmed the Trilogy of maxims above Nemo debet, etc. — cited which are parts of the old archaic law referred to by James C. Carter — the law of substance, which has not been and cannot be changed. To this point we cite the greatest lawyers and jurists of New York. Still these fun- damental principles have not been so presented and impressed in New York as to shake the dominancy of Feudal- ism in that state. A thousand cases can be picked from the reports of that state that support Bartlett v. Crazier L. C. 6, 3 Gr. & Rud. Now what author or court in that state has plainly and impressively stated this fact to the New York student? Can it be said that Professor Pomeroy and the other Code authors of that state have cited that case as a Code case? And which one has pointed out that Clark V. Dillon is exactly like Dovas- ton V. Payne each reaffirming Veria fortius. A multitude of cases can be picked from the reports discussing that principle and not one of them any better than Clark v. Dillon of which we make extended mention under the title Codes. And the same may be said of Campiell v. Consalus also of Tooker u. Arnoux. These cases are upheld on the one hand and are denied on the other hand. And so it is with Oakley v. Aspinioall, as we shall illus- trate by referring to the Impeachment trial of Governor Sulzer in 1913. In his trial it seems that what was de- clared to be "the first principle in the administration of justice" 'in Oakley was denounced and ignored. This fact and the denial of all of the maxims of the Prescriptive Constitution above mentioned is enough to justify the charge that chaos reigns in that state. The decisions of this state have led the way for cases like Gulling and its cluster; also S, v. Fosse, 189 Mo. 537, Henry v. Hilliard, stated and discussed anent Lester v. Foxoroft. Oakley is quoted and followed in Newcome v. lAght, 58 Tex. 141, 47 A. R. 604. The principle in Oakley is a part of Idem agens, a part of which is discussed and applied in S. ex rel. Benson v. Sheppard (Mo.) wherein the Prescriptive Constitution is plain- ly recognized as it was in Oakley. These cases vindicate the higher law. In praesentia majoris cessat potentia minoris. Every student should at least turn to these cases and glance at them for the impression that he will gain from them. A good impresaioD TEXT-INDEX 195 Nemo del)et, etc. — of a great principle prepares the mind for the reception of further instruc- tion. The record data of the impeachment of Governor Sulzer has been largely gained by the public discussions and what passed as the admitted facts of the proceedings. However the facts seem to be quite well authenticated. The High Court of Impeachment is provided for by the state Constitution and is composed of state senators and the judges of the Appellate Court and not of the Supreme Court. Three of the latter were acting pro tempore as Appellate judges and upon this author- ity became triers of the High Court. Supreme Judges in New York are very unlike Judges of the Court of Ap- peals, for among other things they are ex officio generals of the army. P. ex rel. Welch v. Bard, 209 N. Y. 304. It seems that the constitutional quali- fication of the latter judges must find warrant in a statute which provided that the Governor of the state may nominate Supreme Judges to act as Judges of the Court of Appeals. In the foregoing observations are im- portant considerations surrounding the eligibility of Supreme Judges to act. Generally what a Constitution requires is governed by the maxim Expressio unius est exclusio alter ius. Out of the foregoing considerations questions have arisen as to whether or not the proceedings were coram judice. (The judicial function cannot be delegated, Vanslyke v. Trempealeau Ins. Co., 39 Wis. 390, 20 A. R. 50, L. C. 177, 3 Gr. & Rud.) Delegata potestas non potest dele- gari. How the court was convened and sat; its procedure in violation of funda- mental law: — "An extraordinary ses- sion of the legislature" was called by the Governor to consider other matters than what related to a High Court of Impeachment. He specified a Primary Election law, and considerations of ap- propriations and not the impeachment of any one much less himself. The latter by no construction could be in- cluded in the call. The spirit of Mag- na Carta was breathed into the law of New York. P. ex rel. Tweed, 60 N. Y. 559, cited in Kniel:erbocl;er. For the latter also safeguarded, de- fined and confined the Governor's acts as above stated. The law of New York provided that at "the extraordinary session no subject shall Nemo debet, etc. — be acted upon except such as the Gov- ernor may recommend for considera- tion." We repeat that the matter of impeaching any one was not enumer- ated; it was not specified in a Consti- tution where the rule is to such pro- visions Expressio unius est exclusio alterius. What was to be considered and acted on was perfectly certain and could be made certain. As to this we quote "Id certum est quod certum reddi potest," Twner, 201 N. Y. 96. This old universal rule of Construc- tion was lately reaffirmed but in a variant language in Baker v. Warner, 231 U. S. 588, 592. The maxim last cited is often a rule of pleading. The call did not authorize the "As- sembly" to do any and all things in every way, for everybody upon any method either civil or crim- inal. To safeguard against such things the Prescriptive Constitution reaffirmed in the State Constitution and its Statutes and the decisions of the Court of Appeals there stood out fundamental law and stare decisis to light up and to show the way. The State constitution and the call was enough for any little, local statutory devolute; this class of lawyers would not care to look beyond. But above the state Constitution, a jurist and statesman and we may add, that, a historian as well had spoken and had given to the world its greatest case upon a fundamental and organic prin- ciple in operating a court in a Con- stitutionalism; this case is Oakley v. Aspinwall, L. C. 222, 3 Gr. & Rud. Here is one of the great and not- able cases of the law which sheds its radiant luster, as an illumined guide, like a pillar of cloud by day and a pillar of fire by night. Cases like Oakley are a treasure to the greatest asset of government — its jurisprudence. The legal profession is the guardian of this most prized and glorious treasure. For it they may always rise and speak, even, at the bar to vindicate fundamental law as where the amicus curice may rise and speak and advise the court as its friend, and adviser touching, the great principles we are naming in this con- nection. In Oakley a great Universal, Con- stitutional principle an element of "Due Process of Law" — the "first prin- ciple in the administration of jus- tice" was perceived and the next great principle is discoverable in Campbell 196 THE LAW EESTATED Nemo debet, etc. — V. Consalus, also in Kniokertocker Trust Co. These cases are cognates of Vioksiurg v. Henson and cases therein cited. In this case the injustice of ex- travagant and blind construction are indicated. Now rabid, vicious and or- ganized injustice that amounts to a condemnation worse than death can- not pass for "Due Process of Law" wherever "The manner of the Ro- mans," the maxims above cited are comprehended and reasoned from. Oakley is enough but add to this case the trio of maxims we shall next set out and there will plainly appear bar- riers of protection before Avhich au- dacity, rancorous hate and treasonable usurpation would not attempt to over- ride before a patriotic and well-in- structed bar in Constitutional law and a vigilant and independent press. (2 Kent, 8-12.) The old basic, organic law is always with us. It is not changed in sub- stance — not derogated from because local and fiat law reaffirms that old high law. In prcBsentia majoris. As is stated in Oakley, statutes and Con- stitutions make no changes in the old law of substance — that law of sense and logic and of protection which is essential for the operations of a good government; this law is from antiqui- ty and it is supreme. If it is reaf- firmed in local law by provincial edicts and these are recalled still the old and high law remains and is still opera- tive. "Ye cannot serve God and Mam- mon.'' The impeachinent articles were a limitation of Jurisdiction. The court had Jurisdiction of no matter not speci- fied in the presentment. And of this only material and relevant charges could be tried and determined. Matters in nowise relating to the administra- tion of his office could rightfully come before the court. Neither outlawed nor Ex post facto charges could be rightfully presented and heard. In the very nature of things and out of the fundamentals of Procedure and under requirements of "Due Process of Law" only offenses committed while in office and relating to the same could be presented and tried, and considered. Only in a barbaric and inquisitorial government could a contrary Proced- ure be upheld. § 11, Restatement. In an accusatory government res- pectful of the elements of "Due Process of Law" a condemnation or a seques- trating presentment must be founded upon fundamental law which in Ju- Nemo debet, etc. — dicial Procedure is a few organic prin- ciples well thought out and compre- hended. Chief among these principles are three and these are: 1. De non apparentiius et non ex- istentibus eadem est ratio. 2. Frustra prohatur quod proha- tum non relevat. 3. Verba fortius accippiuntur con- tra proferentem. § 1. Restate- ment. These primary principles are reaf- firmed in varying expressions in many cases. Knickerbocker. Campbell v. Consalus, 25 N. Y. 616 (pleadings are jurisdictional and they must present the case that must be tried, according to this definition of Pleadings — "Pleadings are the Juris- dictional means of investing a court ■with Jurisdiction of a subject matter to adjudicate it." And these Plead- ings cannot be waived nor dispensed with, nor enlarged by the express stip- ulations of the parties ) . Clark v. Dillon, 97 N. Y. 379 {Verba fortius accippiuntur). Tooker v. Arnoux, 76 N. Y. 379 [De non apparentibus et non existentibus) . Mondel v. Steel (Eng.) L. C. 77, 3 Gr. & Rud. (sup- ports the above N. Y. oases ) . Guest v. Warren (Eng.) same point as in Campbell v. Consalus where it is cited and quoted. Elwes (1900) 2 K. B. 1, 2 Brit. R. C. 198. Byams v. Stuarl King, 2 K. B. 696, (a recovery must be Secundum allegata et probata). From varying phases the above prin- ciples are perceivable in Reynolds v. Stockton, 140 U. S. — , L. C. 79a, 3 Gr. & Rud.; Standard Oil Co. v. Missouri, 224 U. S. 270; Vicksburg v. Benson, 231 U. S. 259, 274; Knickerbocker Trust Co. V. B. R. 201 N. Y. 379; Palmer v. Bumiston (0.) 45 L.R.A. (N.S.) 640; Milbra v. Steel Co. — Ala. — , 46 L.R.A.(N.S.) 274, 277, 278, citing Munday v. Vail, also Mondel v. Steel; Miller, — Utah — , 48 L.R.A. (N.S.) 294. Jurisdiction cannot be acquired ret- rospectively as by amendments after trial. Bolton, 64 Or. 290, 48 L.R.A. (N.S.) 779, 783, L. & N. B. R. — Ky. — , 47 L.R.A. (N.S.) 918 (assuming any other issue than that presented by the Pleadings is abuse of power and vitiating visurpation ) . Quod ab initio non valet intractu tcmporis non convalescit. Boni judicis est ampliare jurisdic- tionem: This is a maxim of Procedure that permits a court to amplify its TEXT-IisTDEX 197 Nemo debet, etc. — Jurisdiction in furtherance of funda- mental law but not arbitrariness in Procedure. No Constitutional court can usurp jurisdiction in violation of organic law — the Prescriptive Consti- tution. Principles of this we have enumerated. Next we will observe how jurisdiction is obtained through the Pleadings where these are re- quired. Pleadings are to confer upon a court Jurisdiction of a subject matter to ad- judicate it. {Vichshurg v. Henson.) There must be Pleadings to limit and to confine the Court's action. (Gamp- hell V. Consalus.) Story's Equity PI. 10; Nalle V. Oyster, 230 U. S. 165; V. 8. V. Cruilcshank, 92 U. S. 542, L. C. 232, 3 Gr. & Eud. No court can serve a Constitutionalism without a record and respect for it. Every court must be bound by something or by nothing; and so with the "High Court" in New York. This court was bound by the Constitution and the Gover- nor's call already referred to. If the "High Court" was not bound and lim- ited then of what use are records, of Constitutions and decisions? There is no greater principle in Con- stitutional law than the Division of State power and the other organic principles we have introduced. Due Process of Law depends upon respect for these principles. If these prin- ciples count for naught then what have we left except our histories of Greece and of Rome? Is the Federalist an ignus fatuus? It instructs us that the first principle of a constitutionalism is the division of state power. In New York tribunals the "in- visible power" is discussed. In Rome it was the Praetorian Guard. Investing judges with military pow- er as is done in New York is enough to call attention to the apparent vio- lation of first principles. Cuius est instituefe ejus est abrogare. One of the functions of Pleadings is to inform the judge and parties whose and which case it is presented. All are in- terested in knowing. See Trilogy of Procedure. The higher laxo forbids that a judge sit in his own case, "Ye cannot serve God and Mammon ;" "Lead us not into tempta- tion." S. ex rel. Henson v. Sheppard, 4 Gr. & Eud. See Prescriptive Constitu- tion. Nemo, is a jurisdictional question ; it can- not be waived; consent will not give jur- isdiction of subject matter. Oakley. NEMO EST H^RBS VIVENTIS: No one is an heir to the living ; in other words no living man has an heir. NEMO PK^SCMITtJR MALUS; No one is presumed to be bad. Actore. One must be alleged (De »o».) and also proven a delict before he is condemned. Acture. Nemo PrjEsumitur, etc. — Innocence is presumed. Coffin v. V. S. 156 U. S. 432. NEMO TENETUR SBIPSUM ACCUSABE: No one is bound to accuse himself. Coun- sclman v. Hitchcock, 142 U. S. 547, L. C. 178, 3 Gr. & Rud. Twining v. N. J. 211 D. S. 78, 46 L.R.A.(N.S.) 977. Il- legal seizure of evidence. Eight to use. Adams V. N. Y.; Weeks v. V. 8. 232 U. S. 383, L.R.A.1915C, 834, n. NEPEAN. v. DOE d. KNIGHT, 12 M. & W. 394. Death is presumed after absence of seven years. See Presumptions ; Equity. Farmington, 82 Ks. 841. NEW MATTER: Must be pleaded, jlfc- Kyring v. Bull, L. C. 33, 3 Gr. & Eud. Defenses not pleaded are waived. Palmer V. Humiston. Defenses like a cause of action must be pleaded. De non. NEWSPAPER: See 4 Gr. & Eud. NEW TRIAL: See 4 Gr. & Eud.; also Equity. NEW YORK: From the many references to this state the condition of Procedure may be judged. See Campbell v. Con- salus; Clark V. Dillon and Tooker v. Arnoux; Codes. See 2 Gr. & Eud., also Equity. NEW YORK C. R. R. v. ERAtOEF, 100 U. S. 24, L. C. 355, 3 Gr. & Eud. Bag- gage ; what is ; limitations of by carrier. NEXT FRIEND: 4 Gr. & Eud. NICHOLS V. STEVENS; 123 Mo. 126, 45 A. S. 514. Fraud must be speciflcally pleaded. J'Anson v. Stuart. NIGRUM NtJM QUAM EXCEDERE DEBET rubrum : The black should never go be- yond the red. The text of a statute is limited by its title. Bobel v. P. 2 Gr. & Eud., 4 Gr. & Eud. Verba, generalia: C. V. R. R. — Ky. — , L.E.A.1915B, lOfiO. NIHIL EACIT ERROR NOMINIS CTJM de corpore constat : An error in the name Is nothing when there is certainty as to the thing. Vt res prwsentia: Falsa de- monstratio. NIHIL HABET FORUM EX SCENA: The court has nothing to do with what is not before it. De non; Dictum. NIHIL IN LEGE INTOLEKABILIUS EST eandem rem diverse jure censere : Noth- ing is more intolerable than that the same case should be subjected in differ- ent courts to different views of the law. Vbi jus incertum ; Comity of courts ; Res Adjudicata ; Nemo debet bis vexari: Stare decisis. Nemo debet esse judex. NIHIL POSSUMMUS CONTRA VERI- tatem : We can do nothing against truth. Allegans ; Falsus: Sham Pleadings; Ijrui^- er V. Faurot, L. C. 102, 3 Gr. & Rud. ; P. V. MoOumber, L. C. 110, 3 Gr. & Rud. (false and sham pleading). Reality of fact must exist. Fabula: Repugnant pleadings are void. Pain ex parte, L. C. 107, 3 Gr. & Rud. Palmier v. Humiston. See 2 Gr. & Eud. also Equity. False and sham pleading may pass. See Due Process of Law. NIHIL QUOD EST INCONVENIENS EST licitum : Nothing inconvenient is lawful. Argumeiitum ab inconventi: Talis inter- pret alio: Convenience is a ground 'and rudiment of law. NIHIL SIMUL INVENTUM EST ET PBR- fectum : Nothing is invented and per- fected at the same moment. This maxim is on the title page of Chitty's pleading. Codes and Practice Acts depend upon a construction consistent with the logic and the philosophy of the law. See Tril- ogy of Procedure. NIHIL TAMS CONVENIENS EST NA- turali iequitati quam unum quod que dis- solvi 60 ligamine quo ligatum est : Noth- ing Is so consonant to natural equity as 198 THE LAW EE STATED. Nihil, etc. — that each thing should be dissolved by the same means by which it was bound. It takes a deed to make a deed. Au- thority to make an instrument under seal must also be under seal. Sibhle- white, 2 Gr. & End. ; See CHbson v. Ward- en, Id. NIL DAT QUI NON HABBT : He gives nothing who has nothing. See Nemo dat: NOriE PKOSEQUI: See 4 Gr. & Eud. NOLO CONTENDERE: 4 Gr. & Rud. NON DAT QUI NON IIABET : He gives nothing who has nothing. See Nemo dat : Nil dat: These maxims are often applied ia sales. One cannot sell what is not his. NON HZEC IN FCEDBBA VENI: I did not come into this compact. This maxim Involves the idea of assent in contract. Cited, sees. 15, 17, 25, Restatement. Lampleigli v. Braithwait, L. C. 301, 3 Gr. & Rud. Boston Ice Co. Id. 36 L.R.A. (N.S.) 408, 411 ; 42 Id. 593, 590. We make this maxim one of the Trilogy of contract. See Equity, p. 466. It in- volves also the idea of conditions prece- dent. Cutter, L. C. 308, 3 Gr. & Rud. Tooker v. Arnoux. Parties must make their own contracts ; courts cannot make them for parties. Hoare v. Rennie; Nor- rinqton v. Wright (instalment con- tracts). 44 L.R.A. (N.S.) 388; Jordan v. Norton; Ambrose, 36 App. Cas. D. C. 255 [sureties] S. P. as Rees v. Berring- ton), 6 R. C. L. 592-643. NON IN TABULIS EST JUS: The law is not written. Cited, sec. 25, Restate- ment. It is not in writing. It is a logic and a philosophy. See Trilogy of Procedure. 2 Kent, 11 ; Preface Cool. Bl. (the foundation of the law are the maxims). See Maxims. Ita lex scripta est. NONJOINDER: MISJOINDER: 4 Gr. & Rud. ; Parties. Bice v. Shute, Sm. L. C. 4 Gr. & Rud. NON POTEST ADDUCI BXCEPTIO EJUS- dem rei cujus petitur dissolutio ; A plea of the same matter the dissolution of which is sought by the action. The plea should be responsive to the statement of the cause of action and not present the same matter. NO ONE CAN ACT WHERE HIS INTER- est and his integrity are in conflict. Idem agens: Nemo debet esse judex: Keech v. Sandford; Oakley v. Aspinwall. NORBINGTON v. WRIGHT, 115 U. S. 188, 2 Sm. li. C. 51, 8th Ed. Instalment contracts. Withers v. Reynolds, 2 B & A. 882; Willst' Cases 43, 41 L.R.A. (N.S.) 70; cases. Rescission for breach, 38 L.R.A. (N.S.) 539. Cutter; Hoare. NORTH CAROLINA R. R. v. ZACHABY, 232 U. S. 248-281, 58 L. ed. 591, n., stated Roberts Injuries Interstate Em- ployees, 98-119. Injured employee on interstate R. R. may sue in Federal court for injury, under the Act of 1908. State laws yield to the Federal. In prtrscnfia. Second 223 U. S. 54-56. State and Federal courts have concurrent jurisdiction in such cases. Under the Federal act financial loss of a plaintiff is an element and this must be averred. Garrett. De non. The state law did not require Ihnt this element be averred. The pleader sought his footing in the state law. So he averred that the R. R. was a domestic concern operating between Selma and Spencer in N. C. The R. R. took no chances on the appli- cation of the rule Ve1^ia fortius (2 High, North Carolina R. R., etc. — Injuries, 1471), but filed a plea of affirma- tive allegations averring that the R. R. operated beyond Selma and Spencer and into adjacent states. Here and early began the claim of a Federal question. This is renewed by motion for nonsuit also by exceptions to instructions. Con- tinuity of intent was not relied upon, so it manifested its intention to claim rights under the Federal law repeatedly so as to preclude any claim that it consented to the state action. The practice anent presenting a Fed- eral question is exceedingly technical and refined as will appear from an examina- tion of the above case. It is not at- tended with the new and liberal rules hinted in other cases. Baker v. Warner. Cases at law are held to be more strict than in equity. Garrett The affirmative plea filed was not de- nied and therefore its al.egjuiuiis siuud admitted upon the record and as they must be wherever the pleadings are viewed as servitors as justice and are to limit issues and narrow proofs. Under this rule it stood admitted upon the record that the R. E. was interstate. This was settled upon the record and by the right record, and so it might have been acted upon. Dickson v. Cole, L. C. 34, et seq., 3 Gr. & Rud. The search through the statutory record — the evi- dence for what was settled by the right record appears as a fruitless ramble. (See Issues.) Proof of matters admitted upon the record is surplusage. To concede that surplusage may detract from what is fixed and settled by the right record in the right place is to charge prac- titioners with responsibilities beyond hu- man capacity. It is a jumbling of t^e mandatory and of the statutory records of which we elsewhere observe. To illustrate : Let us suppose that with the admission upon the record that the R. R. was interstate a judgment was entered against it (where there was no allegation of financial loss, Garrett) of what validity would that judgment be? See Nolle v. Oyster. With that admis- sion on the record could the state court enter judgment in any aspect where there were insuflicient allegations? See Gar- rett. The omission of jurisdictional al- legations (Garrett) ought not sustain any judgment against an interstate R. R. Would not such a judgment be subject lo Collateral Attack? Deiile fundamentum ■faint opus. When it was admitted upon the record that the R. R. was interstate might not it have quitted the court as in Windsor V. McVeigh? (L. C. 1. 3 Gr. & Rud.; Under the allegations and the admission could there be a recovery of damages in any court, state or Federal? Such being the allegations and the admissions should the statutory record have been opened? See Mandatory Record ; Nalle v. Oyster. The allegation that the train was op- erated from Selma to Spencer in N. C. was not a certain allegation that it did not operate beyond into another state. Verba fortins. This allegation was de- murrable from this viewpoint. By strict construction what became a long case might have been made a short and inex- pensive one. The liberal construction of Pleadings often lead into great perplexi- ties ; in this case it left it to the R. R. to file a plea bringing forth a necessary fact which was omitted. TEXT-IISTDEX 199 North Carolina E., R., etc. — The plea filed changed the nature of the subject ■matter from a matter of state cognizance to one of Federal cogni- zance and this plea was not denied but was admitted upon the record. The above allegation and the vitiil fact of the plea being admitted upon the record this record would support no judgment for damages not "financial*' which fact must be alleged ; proving them will not do. Oarrett. Such a judgment was subject to a motion non obstante veredicto. It of course would be subject to objections upon Collateral Attack. A judgment not supported by a coram judice record should be set aside. Vicksturg v. Hen- son. Without proper allegations there was no subject matter presented upon which a court could act. Oarrett. And this is a jurisdictional question. Q-arrett. Flori- da Co., 176 U. S. 321, 329. Due process of law depends upon juris- dictional elements of which none are more important than are the pleadings. v. S. V. Cruiksliank, L. C. 232, .3 Gr. & Kud. De non. A judgment resting up- on the above allegations and admitted plea could not pass for due process of law. This conclusion finds support in Garrett also Vicksburg v. Hensun; Mun- day V. Vail, L. C. 79 et seq., 3 Gr. & End. The vesting of .Turisdiction with cer- tainty by the right record (see Res Adjudicata) is one of the highest func- tions of pleading (§§ 83-123, 1 Gr. & Rud.). This requirement cannot be waived nor consented away, Campbell v. Consalas. Quod ab initio, Verba fortius. A court has no jurisdiction of a for- bidden subject matter. The state court could not enter a valid judgment upon the case made by the allegations and the admission of the vital fact alleged in the plea. Its attempt to do so was coram non judice and the mandatory record plainly showed these facts. In such a case the statutory record should not be opened. Windsor v. McVeigh, L. C. 1, 3 Or. & Eud. Phases of the uses of the mandatory record appear in the discussions of Slo- cum V. Ins. Co.; Nalle v. Oyster and in Vicksbiirg v. Benson. Relating to that record the logic and the philosophy of the law are the same in all systems. Palmer v. Humiston. These uses may be reasoned from the Trilogy of Proce- dure. The importance of the questions in- volved in North Carolina R. R. justifies a close and technical statement of the salient facts, also some broad deductions therefrom, and especially as to the char- acter of Pleadings as a jurisdictional ele- ment which has come to be broadly de- nied by many courts and by several popular and most prominent authors of the last generation. Their views are flatly opposed to many decisions of this court, among which are Slacum v. Pom- ery, Cragin v. Lovell. 109 U. S. 194 ; V. 8. V. CruikshanJc, L. C. 232, 3 Gr. & Rud. ; Nalle v. Oyster, Vicksburg v. Hen- son, and cases cited therein. Under these cases the omission of a material allegation, and a fortiori of an entire pleading, would render the entire record subject to Collateral Attack, which is only a delayed geuf^ral demurrer. Cragin v. Lovell; Garrett v. L. d N. R. R., Slo- cum might well have cited Rushton v. North Carolina R. R., etc. — Aspinall by Mansfield, which was quoted and approved by Kent in Bartlett v. Crozier, a case that well sustains Gar- rett. All of these cases are but vary- ing phases of three cases in Smith's Leading cases (8th Ed.), viz., Rushton r. A.si3iiiall, Bristow v. Wright and Dnraston v. Payne {Antisdel v. R. U. Wis.). Code cases are the same. Camp- bell V. Consalus (Pleadings cannot be waived nor be consented away, citing and following Quest v. Warren, Eng.) ; Clark V. Dillon (Verba fortius, Dovaston, An- tisdel, Garrett, Florida Co. v. Bell, 176 XJ. S. 321, 328-329). The omission of a material allegation is fatal to a recovery. Such a pleading is subject to a general demurrer, which is never waived. Cragin; Slocum; Oarrett. Story's Equity Pleading, § 10. Quoted in Hughes* Equity In Procedure, § 47, in connection with the Roman Maxims which support the above cases. These state the law in the broadest and most con- densed way and in the language of all nations, as is demonstrated in §§ 1-13. of The Law Restated. A trio of maxims express the Mount Everests of Procedure. Prom these heads innumerable molebills can be traced. Extensions of these lead- ing principles can be viewed over and through the breadths and depths of the entire body of the law. But in order to perceive and properly relate these ex- tensions or tails with the few heads or great principles the latter must be well thought out and comprehended and har- monized with the greatest principles of jurisdiction. (Alterum non lasdere.) There are great principles which dom- inate written Constitutions, Statutes and decisions of courts, and indeed all local and fiat laws. {Oakley v. Aspinwall, L. C. 222, 3 Gr. & Rud., §§ 509-522, Hughes' Equity In Procedure). A logic and a philosophy deduced from these principles must be comprehended by a construc- tionist who is called upon to harmonize the conditions arising from the opera- tions of our dual governments. This fact is well illustrated by North Caro- lina R. R. Cases like this must be con- sidered in the light of fundamental, con- stitutional principles — the Prescriptive Constitution. Without this a judiciary drifts aimlessly around and around with- out star, sextant, compass, sail or rud- der. (See Gulling v. Bank and its clus- ter of cases ; also Story ; also the trio of maxims above referred to.) These first principles were the "manner of the Romans" which were stated in Saint Paul's Trial in the Acts of the Apostles. Where these are comprehended there is order and certainty and where they are not there is judicial anarchy. {Gulling.) There shall be no departure, is an old rule of leading significance. It calls for Pleading as a jurisdictional element as required by Story ; and that a judgment be entered upon the claimant's state- ment of his "cause of action." Cragin V. Lovell, supra. For his judgment the pleader, the claimant must plead and describe; (Quis, quid, coram quo) he must allege something with certainty for and on account of the state, inter alia. Interest reipublicw. He pleads at his peril. Ignorantia legis. When his plead- ing is tested at the stages of Collateral Attack, Res Adjudicata and Due Process of Law, he must show more than juris- diction of the person (Pennoyer v. Neff, L. C. 58, 3 Gr. & Rud., and a judgment in 200 THE LAW EESTATED North Carolina R. R., etc. — sufficient form. (Windsor v. McVeigh, L. C. 1, 3 Gr. & Rud.)- At these stages the mandatory record Is opened and juris- dictional elements inquired after without regard to objections and exceptions. There are limitations of Consensus tollit errorem. The law of aider only applies to formal matters. And so it is that the general demurrer is never waived. Clark V. Dillon; also why it is that pleadings cannot be contracted aw£(y. Campbell v. Consalus. Herefrom arise rules that ap- ply to all systems ; the logic and the philosophy of the law call for these rules and therefore they are not controlled by local and flat law. In prwsentia majoris cessat potentia minoris. One cannot al- lege one thing and recover for another and a different thing. Departures are not allowed ; statutes cannot authorize them. When the claimant omitted the alle- gation of "financial loss," he described a subject matter for a state court. Oar- rett. This is not a subject matter gov- erned by Federal law. Now could the claimant recover in any aspect of the case when another and a different subject mat- ter appeared by the mandatory record? When the E. R. filed a plea that it was an interstate subject matter and this plea was admitted upon the record and the right record, in that record prescribed by the state to limit issues and to narrow proofs, to confer jurisdiction and to guide its exercise for all of Its varied purposes and to bind the court by its al- legations, admissions, denials and Issues, how can the court overlook such an ad- mission upon the state's record and order a trial of a matter not in issue? In the criminal case we have held the con- trary. Crain v. U. 8. 102 U. S. 623, cited and discussed In Hughes' Equity In Proce- dure. (See Garland v. S.) Mundaii v. Vail, L. C. 79, et seg., 3 Gr. & Rud. An issue upon the record is a jurisdictional matter. Israel v. Reynolds, 11 III. 21S, L. C. 83, 3 Gr. & Rud. The rules of the logic and of the philosophy of the juris- dictional record is the same in all kinds of cases and in all systems that recog- nize the requirements of Res Adjudicata. Interest reipubliem. As to the public requirements involved there is no dis- tinction in any kind of a case whether civil or criminal, at law or in equity. However the contrary is often assumed by the prominent and popular authors we have referred to. "These have not recognized the importance of the manda- tory record as a jurisdictional record and as a necessity in the law of Res A d- judieata and of Due Process of Law. (1 Gr. & Rud. §§ 83-123.) Not one of them has explained why it is that the general demurrer cannot be waived ; nor have they respected the rule that there shall be no departure. (Frustra proba- tur quod probatum non relevat.) North Carolina R. R. is a good illus- tration of the consequences of either omitting or of adding an allegation. For as we add or subtract an allegation we North Carolina R. R., etc. — make either an intrastate subject-mat- ter on the one hand or an interstate on the other hand. .Turisdictionally this dif- ference is of great consequence. And so' it is that Pleadings are a jurisdic- tional element. Iflalle v. Oyster; Vicks- burg V. Benson. As to this authors wide- ly vary in opinion. ( See Story ; G-ul- ling; Aider; Literature.) NOSCITtJK A SOCIIS: A word is known by its companions. This is the "old dog tray" maxim. 224 U. S. 491. NOVATION: Tatlock o. Harris, 100 Bug. Reprint, 517, 4 Gr. & Rud., 54 L.R.A. (N.S.) 1-71. NO'SVACK T. BERGER, 133 Mo. 24, 54 A. S. 603. Statutes yield to fundamen- tal law. In Prwsentia: Riggs v. Pal- mer. NON OBSTANTE VEREDICTO: Slocum V. Ins. Co. 228 U. S. 364-428. NUDITY: R. v. Cruiulen. 4 Gr. & Rud. NUISANCE: 4 Gr. & Rud.; also Equity. Sic utere. Lepi,HERSHIP: 4 Gr. & Rud. What constitutes. Wauph v. Car- ver. PART PERFORMANCE: See Lester v. Foxcroft. PASLEY V. PREEM.IN, Sm. L. C, L. C. 375, 3 Gr. & Rud. Cited, Preface; also sec. 19, Restatement. Deceit ; misrepre- sentation ; Caveat emptor. This case is ably presented in Davis v. Trent, la. 49 L.R..\.(N'.S.) 1219, 1224; Cottrill v. Krum, IS A. S. 549. One liable for in- troducing an imposter. Baser, 78 Wash. 51 L.R.A.(N.S.> 7U7. PASSENGERS: Rights and duties of. 4 Gr. & Rud. ; Carriers, L. C. 357, 3 Gr. & Rud. Eight to a seat. Care v. R. R. 94 S. C. 282, L.R.A. llilSB. 915. Hand baggage ; carrier when liable for. V. P. R. R. V. Grale, — Wyo. — , L.E.A.1915B, 608. PATERSON V. GANDASEQUI, 15 Bast, G2, Sm. L. C. See Thomson c. Daven- port, L. C. 342, 3 Gr. & Rud. Agency. Disclosed and undisclosed principals. PAUPERS : 'I .»eir rights to process. Kinney v. Plymouth Co. 236 tf. S. 43 (statute construed). PAYMENT: By volunteer does not sub- rogate him. Bering, 2 Gr. & Rud. Non liaec. With stolen funds. Miller v. Race; By mistake. Uoriot i\ Hampton; iS'coiSt V. Ford. Application of. Field v. Holland, L. C. 387, 3 Gr. & Rud. Quis quid solvitur. See Toiey, 4 Gr. & Hud. Must be pleaded. McKyring v. Bull, L. C. 33, 3 Gr. & Rud. But it is held that a partial payment may be proved under the general issue. Metxgar, 2 App. Cas. D. 389. TEXT-IISIDEX 211 PAYNE T. CAVE, 3 T. R. 14S. L. C. 307. 3 Gr. & liud. Auction sales ; offer and acceptance. 131 A. S. 4IJ2-503, 3 Gr. & Rud. PEACHY V. SOMERSET (DUKE OF), Wh, 7 Tud. L. C. Eq. cases. Penalties and stipulated damages. KemMe v. Farren; Sloman t\ Walter. PEARCE V. BROOKS, 1 Exch. 213, L. C. 3G8, .*) Gr. & Itud. In pari. In jure; Knowledge of seller when too remote. PECK T. U. S. 102 U. S. 64. Impossibility when an excuse for nonperformance of a contract. Lex non cogit ad impossi- biUa. Paradine. PENAL, STATUTES, 4 Gr. & Eud. Con- struction of, must be reasonable. U. S. v. Wiltberger, 4 Gr. & Rud., 3M2 A. S. 446. PENALTY; CONTRACT: Stipulation for fixed damages when construed a penalty. Kemble; Sloman; Peach]/. 38 L.R.A. (N.S.) 847-856, ext. n. PENDING OF .\NOTHER ACTION WHEN a defense. 4 Gr. & Rud. ; Pom. Rem. 51-i. PENN V. BALTIMORE, Wh. & T. L. C. Eq. L. C. 275, 3 Gr. & Rud. Equity acts in personam. PENNOWFSKY v. COERVEB, 20."> Mo. 135. Cited, sec. 13, Restatement. Man- datory and Statutory records ; Distinc- tions not understood. Milling Co. v. St. Louis; Planing Mill Co. r. Chicago, L. C. 2d 3 Gr. & Rud. PENNOYEB V. NBFF, 95 U. S. 714, L. C. 58, 3 Gr. & Rud. ; 6 Rul. C. L. 444. Notice of proceedings essential for Due Process of Law. Service by publication strictly judged. Audi alteram partem. Oakley v. Aspinwall, D. C. 66, 3 Gr. & Rud. Baher, la. 35 L.R.A. (N.S.) 312, ext. n. Carrell, 245 111. 378, 137 A. S. 237, 38 L.R.A. (N.S.) 924. PENNSYLVANIA R. R. v. EOFTIS, 106 A. S. 597-612. Carriers : Connecting lines are not partners. Atlantic, 219 L). S. 186. PEONAGE: What is. U. S. v. Reynolds, 235 U. S. 133. P. stands for People ; C for Commonwealth ; S. for State ; R. for Rex or Regina ; U. S. for United States. Generally these are criminal cases. P. V. CORNING, 2 N. Y. 9, B. & H. L. Crim. Cases ; 49 A. D. 364 ; 19 L.R.A. 342, sub. S. V. Croteau, L. C. 271, 3 Gr. & Rud. An acquittal ends a criminal prosecution ; the state cannot appeal. P. V. GRAY, 261 111. 140. 49 L.R.A.(N.S.) 1215. Cited, sees. 22, 2-5. Restatement. Mandatory record mvst present the sub- stance. P. v. HASTINGS, 29 Cal. 449, L. C. 144, 3 Gr. & Rud. Division of state power ; Only au assessor can assess. P. V. McCUMBER, 18 N. Y. 31.^, L. C. 110, 3 Gr. & Rud. False and sham pleadings. Nihil possumns contra icritiifrm. P. V. MOLINEUX, 168 N. Y. 2G4, 62 L.R.A. 193-3.J7, ext. n. Collateral facts to prove intent; S.ystem ; 29 L.R.A. (N.S.) 858. Res inter alios acta. P. V. REDDINGER, 55 Cal. 290, 36 A. R. 32. Fugitives can claim no considera- tion from courts. P. V. ROBY, 52 Mich. 577, 50 A. R. 270. Cited, sec. 18, Restatement. Crime ; In- tent no element in statutory offenses. But it is held that if one imparts a con- tagious disease which he did not know that he had that he is not guilty. Law- rence V. P. 188 Ky. 323, 2a .\. & E. Ann. Cases, 363, 127 S. W. 1013. Lex non exacte; Actui non facit reum. This is one of the principles of the Prescriptive Constitution respected by all just and humane governments. See 3 Gr. Ev. 21, People, etc. — 26, 25 L.R.A. (N.S.) 661, citing R. v. Prince, R. v. Tolson, G. v. Mash. P. v. ROGERS, 18 N. Y. 9, 72 A. D. 484, L. C. 198, 3 Gr. & Rud. Homicide; Drunkenness when a defense. Burden of proof. U. S. V. Drew; C. v. Rogers, L. C. 199, 3 Gr. & Rud. P. V. SEYMOUR, 76 A. D. 521, L. C. 256, 3 Gr. & Rud. Curative statutes. Taxa- tion. Limitations. Clarlc v. Dillon; C. & A. R. E. V. Clausen, Jeofails. Quod ab initio. P. V. TILDEN. See Tilden v. P. Repug- nant pleadings are void. Pain. P. v. TOWN OF SALEM, 20 Mich. 452, 4 A. R. 400. Prescriptive Constitution. Limitations of legislative power. Taylor V. Porter, L. C. 219, 3 Gr. & Rud. In prwsentia majoris: P. V. TURNER, 55 111. 280, 8 A. R. 645, L. C. 252, 3 Gr. & Rud. Prescriptive Constitution. Statutes cannot override fundamental Law. P. v. Town of Salem. In pra'sentia majoris: Lex non exacte. P. V. VERNON, 95 A. D. 49-76, ext. n. Res gestcc; What facts are. 1 Gr. Ev. 108. PEREZ T. FERNANDEZ, 202 IT. S. 80, L C. 2e, 3 Gr. & Rud. Res Adjudicata ; All that could or might have been heard is presumed to have been. Interest reipub- iicw: Splitting causes of action not per- missible. 13 L.R.A.(N.S.) 529; 184 N. Y. 211, 3 L.R.A. (N.S.) 1042. Error ap- pearing in the mandatory record saves itself. "It will keep." Ma'llincrodt. This affects the state. Alterum non Icedere. Windsor, L. C. 1, 3 Gr. & Rud. PERFORMANCE OF CONDITIONS: 4 Gr. & Rud. Tooker v. Arnoux. PERJURY: 124 A. S. 652-678, ext. n. S. i\ Shnpe, 85 A. D. 485. The evidence must be relevant. Frustra probatur: Materiality : How pleaded and proved, § 10. No remedy for, 50 L.R.A. (N.S.) 392. See 50 L.R.A. (N.S.) 1064 {Ex dolo malo) . 8. V. Mounl^es, 91 Ks. 653 n (new trial for). PERPETUATING TESTIMONY: 4 Gr. & Rud. PERPETUITIES: 30 Cyc. 1464-1534. 4 Gr. & Rud. Thelluson. Walkerly. PERRY T. PORTER, 124 Mass. 338, L. C. IZQa, 3 Gr. & Rud. Frustra probatur: S. P. Bristoio V. Wright. PERSONAL INJURY: Squib Case; Mc- Manus; Kearney; Negligence, 4 Gr. & Rud. PETER V. COMPTON, Sm. L. C, L. C. :;40, 3 Gr. & Rud. Contracts not to be performed in a year. VAU A. S. 588-613. ext. n. If a contract could or might bi' performed in a year the statute does not apply. Lmrrcnce r. Cooke, 56 Me. 187, 96 A. St. 443. r« res. PETERS V. FLEMING, 6 M. & W. 42. In- fants : Their power to contract for neces- saries. Craig c. Van Bcber, ]S A. S. 569- 724, ext. n. reviewing all the cases (Ablest resume). PETITION : 4 Gr. & Rud. PETTIBONK V. NICHOLS, 203 U. S. 192, 4 (;r. & Kud. Jurisdiction obtained by fraud is uot vitiated. Necessity excuses government in its operations. Rex non potest prccare. 212 U. S. 78. Extradi- tion may proceed on fraud and falsehood. 2 L.R.A. (N.S.) 227. PHELPS V. RAOEY, 60 N. Y. 10, 19 A. R. 1411, n L.R.A. 139, L. C. 191, 3 Gr. & Rud. S. r. lirach, L. C. 258, 3 Gr. & Rud. In prrrsentiii niajoris. PHILIPPINE ISLANDS: 4 Gr. & Eud. 212 THE LAW RESTATED PHILOSOPHY OF THE L,AW: See the general demurrer and its Correlatives. Alterum: Mandatory Record; Logic. PHYSICAL EXAMINATION : 4 Gr. & End. PHYSICIAN: 4 Gr. & End. PICKABD V. SEABS.6 A. & B. 469. Equi- table estoppel ; Title to land may rest upon. Lindsay v. Cooper. Defense of title to land. 48 L.E.A.(N.S.) 774-775, ext. n. PIGOT'S CASE, 6 Coke, 266. Alterations of documents. See Master v. Miller. Contract may be valid in part and void in part. Vt res. PINNEL'S CASE, 77 Bug. Beprint, 237. S. P. as cumber. PINNINGTON V. GALLAND, 10 E. C. 35. Cited, sec. 17, Kestatement. Ways of necessity. Accessorium non ducit. Cuicunque aliquis quid. PIRACY:. See 4 Gr. & Eud. PLACITUM (PLACITA) : Tbe place where a court convened and sat is jurisdictional. The Mandatory record must show these facts. Magna Carta required this. See Quis, quid, coram quo: ^tithMngs, 156 111. 338, L. C. 49, 3 Gr. & Eud. The importance of this presentment is indi- cated in Planing Mill Go. v. Chicago, next set out. SiuhMngs. PLANING MILL CO. v. CHICAGO, 56 111. 304: Cases cited, L. C. 2d, 3 Gr. & Eud. Cited, sec. 13, Restatement. "What ought to be of record must be proved by record and by the right record." 248 111. 76. The placiUtm is essential and must appear in the mandatory record ; if in the statutory record it is surplusage and will not be noticed. Milling Co. v. St. Louis; Pennowfsky. Quis, quid. PLEADINGS are the juridical means of investing a court with jurisdiction of a subject matter to adjudicate it. § 47, Hughes' Equity. Rushton; Vari- ance; Lancaster ; Garrett; North Caro- lina. This deiinition is dictated by the Trilogy of Procedure; also from the attitude of the state which will not allow them waived or stipulated away. Gamphell v. Consalus. Pacta Conventa. The "cause of action'' must appear from the Pleadings filed. It cannot appear from oralities and affidavits. Walter, 250 111. 420 (Municipal Court Act ) . It must appear from the right record. Planing Mill Co. v. Chicago, ■supra. It cannot be picked and es- tablished from the matter of the stat- utory record as is claimed by the "theory-of-the-case" advocates. A "cause of action" must be stated in the right Pleading to attract juris- diction. A court cannot start with no jurisdiction and gather up its ma- terials as these may chance to develop in the wavs of a trial. Storv. (vSce 2 Thompson's Trial, 2310, 2311, quoted § 47 Hughes' Equity. Quod al) in- itio. See 4 Gr. & Rud. ; also Equity; also the Trilogy of Procedure, also Demurrer; Henry, 49 L.E.A. (N.S.) 1-44. Pleadings. — The student should grapple with and settle the question for himself as to whether sutstance can be waived. This is a leading question in all systems. It is neither singular nor peculiar to any. Story and his school deny that sub- stance can be waived on the one hand, while on the other hand, Thompson and his followers take the opposite view. (See Story.) Inseparably connected with the above question is the question as to whether or not the general demurrer can be waived. ( See Demurrer. ) Those who deny that the general demurrer can be waived {Toolcer v. Arnoux) deny that substance can be waived. CSalle v. Oyster.) These also deny that filing an answer or a response Pleading waives substance. Therefore a limita- tion must be placed upon the almost axiomatic rule that "filing an answer to the merits waives the demurrer; " for this rule must be made to accord with the rule that the general demur- rer is never waived. A pleading that is subject to general demurrer has no merits and therefore there can be no answer to a statement that has no merits. This view will allow the rule that the general demurrer is never waived, to stand. And so it would follow that the rule should read this way: Filing an answer waives a special or a formal demurrer. And to this view the Code provisions can be reconciled which provide that filing an answer to the merits waives all defects except that no cause of action is stated; that nothing is described that jurisdiction can attach to. {Quis quid; De non.) Minnesota. These views also involve the maxim Verba fortius. Clark v. Dillon and its cognate cases illustrate this maxim. These cases are in accord with the view that the general demurrer can never be waived; also with the Trilogy of Procedure throughout. (§§ 1-1.3, Re- statement. ) The view that a verdict supplies or can supply omitted allegations of substance has led to great confusion. (Rtishton.) These erroneous views have led to the jumbling of the manda- tory and the statutory records. Herefrom arises the "theory-of-the- case" doctrine. The much appreciated "law quiz- zers" in some quarters might well in- clude several questions that will sug- gest themselves by a glance at the title, Feudal Lawyer. And this ques- TEXT-INDEX 213 Pleadings. — tion has the Feudal law settled one question or rule of Pleading and if so which i9 it ? Also this, has he not con- stantly fought over and over unceas- ingly both in his statutes and in his courts the principle Verba fortius ac- cippiuntur contra proferentem^. And does not this canon stand to-day in New Yoric also in Illinois as it always did in Rome and in England except as it was slialien by Sergeant Williams and his followers wlio liave parroted what he said in a note to Stennell v. Hoggi. And is not his statement the basis of all of the statutes of Amend- ments and Jeofails? (See Dovaston V. Payne, L. C. 217, 3 Gr. & Rud. Also Clark V. Dillon quoted in relation to Codes.) Also, where in Feudal liter- ature has that maxim been cited and explained? Have not the most noted Code authors both approved and denied that maxim in almost consecutive sec- tions? (See sees. 533, 546 Pomeroy Code Remedies; Also Thompson's De- nials of that maxim : title Story. ) See the Restatement of Law: The outlines of Pleading, § § 1-27 ; Five fun- damental principles, § 5; These omit- ted by Feudal authors § 13; The old law is the basis of, §§ 3, 7; Quis, quid, coram quo is the most instructive maxim, §§ 6, 7; The general demurrer is never waived ( See Demurrer ; also Collateral Attack; also Bes Adjiidi- cata), §§2, 16, 22; Pleadings aro Jur- isdictional, § 23; Cannot be waived: (Cam,pbeU v. Gonsalus, discussed in relation to Codes, which followed Quest V. Warren; stipulation cannot dispense witli Pleadings. See Literature; Codes; Consensus tollit errorem.) The following questions are submit- ted to draw attention to the logic and the philosophy of procedure also to the origin of the causes that have led to the confusion and bewilderment of pleading and its related subjects: 1. Are there not a few fundamental principles that underlie every system of Procedure that can serve a govern- ment carrying forward the principles of a Constitutionalism? North Caro- lina R. R. 2. Name and explain one or more. ( See In prcesentia. ) 3. If there are Universal, Constitu- tional principles common to all sys- tems then why should each system be studied irrelatively? 4. Are Pleadings immortal or are they functus officio when the judgment Pleadings. — is entered? (See Outram v. Morewood, L. C. 25 et seq. 3 Gr. & Rud.) 5. Do Pleadings limit the scope and the operation of a judgment or is a judgment construed from its own four corners as a judgment, and addition- ally the fact of jurisdiction of the per- son? (See Vickshurg v. Henson, 231 U. S. 259; Gases cited; Garrett. Mun- day V. Tail, L. C. 79, 3 Gr. & Rud. cited in Hughes' Equity In Procedure.) 6. Of what consequence is a judg- ment for acres where the Pleadings show that a judgment for dollars was commenced? (See Vickshurg v. Ben- son, supra.) 7. Can variances and Departures be permitted in any system? (See Frus- tra. Oarrett; North Carolina.) 8. Can the operation and effect of Pleadings be enlarged and controlled by the contracts and stipulations of the parties? (See Cam,pbell v. Gon- salus, 25 N. Y. 613, 616; Interest rei- publicae ut sit finis litium; Res inter alios a/)ta.) 9. Are not the elements next enum- erated Universal requirements in all systems of civilized government: That a statement of a "cause of action," must (1) specify the court in which the action is instituted ? ( 2 ) , that the name of the plaintiff — the wronged person must appear ? ( 3 ) , also the name of the defendant — the wrongdo- er? (4), also the wrong he did? (5), also the amount of damage he did? Quis, quid. (See Ad Damnum.) Oarrett. 10. May we not call these elements the "irreducible minimum," of a Plead- ing that will pass the general demurrer and its correlatives ? 11. Are not the above elements re- quired by the Roman maxim, Quis, quid, coram quo: (See Hughes' Equity In Procedure.) 12. Have not Codes reaifirmed the maxim last referred to? 13. Can the omission of a material allegation be supplied by liberal con- struction? (See Aider; Consensus; Garrett.) Cragin i\ Lovell, 109 U. S. 194; citing, Slacum ; McAllister v. Kuhn; Rushton. Minnesota, 194 U. S. 48. 14. Which one of the "irreducible minimum" above specified can be sup- plied by liberal construction, if omit- ted? 15. Is not Verba fortius aocippiun- tur contra proferentem a Universal, Constitutional canon of the Prescrip- 214 THE LAW RESTATED Pleadings. — tive Constitution, applicable to all documents? (See Hughes' Equity, §§ 163-189.) 16. And is not "Every presumption against a Pleader" at all stages — at the stage of the general demurrer and at all of its Correlatives? Qarrett. 17. Has Verba fortius been changed in any jurisdiction except by disjoint- ed contradictory cases? Lawman, 42 App. Cas. D. C. 202. 18. What has been the consequence of attempting to change Verba fortius in the various jurisdictions ? ( See the discussions of Clark v. Dillon (N. Y.) ; C d A. R. R. V. Clausen (111.) ; Baker V. Warner (U. S.) ; Ross v. Milne (Va.) 19. Can the general demurrer be veaived: If so where, exactly where? (follow Jackson v. Pesked through the works on common law. See Litera- ture. ) 20. Does not the rule that the gen- eral demurrer cannot be waived de- pend upon equal and uniform Construc- tion and the consistent application of Verba fortius at all stages? (Sea Baker v. Warner; Goldham v. Ed- wards; Literature.) 21. Is not the rule of the general demurrer reckoned from the attitude of the state in Procedure? (Alter- um.) 22. And is not the attitude of the state always the same and dictating the same logic and philosophy at the stage of the general demurrer and at its Correlatives — even unto Collateral Attack, Res Adjudicata and "Due Process of Law?" (Literature.) 23. Do not the rules of the general demurrer depend upon the equal and uniform application of the maxim Verba fortius at all stages? (See Story's Equity Pleading, quoted § 47 Hughes' Equity.) 24. Are not Pleadings jurisdiction- al? (See Story, last cited; i'allc v. Oyster, 230 U. S. 165) ; Garrett; 2 C. J. Cyc defining allegations as merely for trial purposes. 25. Have not authors and courts generally failed to grasp the attitude of the state and to unfold the logic and the philosophy of procedure there- from? (See Alterum non Icedere; Quod ab initio non ralct intractu icmporis non connalescit §§ 190-205 Equity In Procedure. Eighmy v. P.) 26. The distinctions between the mandatory record and of the statutory record (bill of exceptions). See Wind- Pleadings. — sor V. McVeigh, L. C. 1 et seq., 3 Gr. & Eud.; Pennowfsky v. Coerver, (Mo.); Nalle V. Oyster (230 V. S. 165) ; North Carolina R. R. The significance of the above ques- tions cannot be appreciated by one not introduced to the chaotic condi- tion of Procedure and of its litera- ture, which is devoid of all logic and philosophy. In reference to Jackson v. Pesked we shall make some observa- tions and call attention to the fact that the deed — real estate are not the only subjects that have, Shelley Gases, for procedure is made up of their jar- gon. Nestling around the Feudal mot- to "Parliament is omnipotent" are many "Shelley" Cases. Kent kicked "Shelley's" out of the law and now it remains for some Judge to speak of such cases as Jackson v. Pesked and Stennell v. Hogg and all such cases as lacked directness and clearness of ex- pression. (See Consensus.) Dovaston V. Payne. We are willing to concede that each of these cases is defensible and that each requires that substance must ap- pear in a Pleading in order to pass the general demurrer. But after conced- ing this we then point to the fact that alongside both of these cases is found the statement of Sergeant Williams that substance can be waived. Now, substance is required by the state and its interests cannot be waived Alter- um non Icedere; Res inter alios acta; Campbell v. Consalus (Code). But along with Jackson and Stennell, Tidd, Chitty, Stephen and Gould can be cited to sustain the view of Sergeant Williams. Now did these authors gatlier a right view of those cases? And did any of them understand the logic and the philosophy of Procedure? How could they understand it if they thought that the interests of the state could be waived? We are unable to cite Story only, as an author who more than intimates that there are Universal, Constitution- al principles that arise from the Pre- scriptive Constitution which is above the motto that "Parliament is omnip- otent." He wrote sections above all and of such are his sections 10, 25, 28. These are truly great Code sections. Herein he quotes Quis, quid, coram quo : which enumerates the "irreduci- ble minimum" of any and of all state- ments of a "cause of action" in all systems. Here is something Universal and Constitutional. It is reaflirmed by the Codes. Indeed each of these TEXT-INDEX 215 Pleadings. — sections is the fundamental law of the Codes. But no Code author has perceived and broadly stated this fact. Look at the § 10 and then see what Coke, Blackstone, Tidd, Chitty, Step- hen, Gould, their editors and followers said of the matter of that section. See if it is permissive of the motto last referred to. Story and the courts in Clark V. Dillon and C. tC A. R. K. v. Clausen intimate, but not clearly enough for all, that there is a higher law governing Procedure than Parlia- ment. But this was not the doctrine of the authors above referred to. It was not Feudal doctrine. The Code came in 1848 in the days of state rights which were founded on that motto — on the "letter of the Consti- tution" — on Ita lex seripta est. Such were the conditions and so the Code came to be viewed as a local and fiat creation which each jurisdiction might construe as it chose without regard to fxmdamental law. It became the settled doctrine, that each jurisdiction must enact its own Code also expound it as a local establishment — as something sui generis. The Prescriptive Consti- tution, the sections of Story, the light of logic and of philosophy did not lead in the Construction of the Code. With Biddle v. Boyce (Mo.), and Bno V. Woodworth (N. Y.). The struggle began. "Shelley" Cases were soon de- cided and gathered with avidity, and soon became a menacing cloud dark- ening the way until to-day the sec- tions of Story, and the maxims reaf- firmed by the Code are construed away for the "Theory of the Case." (See Gulling v. Bank), the struggle over the Code is indicated in the preface to Tyler's edition to Stephen's Plead- ing which so many have been pleased to quote and follow with approval; also Par. 2 Preface Pomerov's Code Remedies, also his §§ 75, 509-514, 533, 546, 592, et seq.; also Tlie Preface to Nash's Ohio Code, 1856). The Feudal authors had their "Shel- ley" Gases — their Jackson v. Peslced, and Stennell v. Hoggs and the end- less jargon surrounding these. But these discussions have been avoided by the Code authors, except as they have resurrected them under cases that arose under the Code. There are great and instructive Code cases which plainly enough re- affirm Story and the maxims referred to. Among these are Campbell v. Con- solus, 25 N. Y. 613, 616. See question Pleadings. — 7, 17 (ante) ; Clark v. Dillon, 97 N. Y. 370 (See question 7 ante) ; Tooker v. Anioux. 76 N. Y. 379 (a pleading must be sufficient within its own four cor- ners — an answer will not supply an omitted allegation — limitations of Aider) . Elsewhere we combine these three cases and connectedly annotate them, and so to speak constitute them a "Da- tum Post," from which we invite all reckonings relating to the fundamen- tals of the Code. Of course the fun- damental demonstration throws light over all systems. We also seek to demonstrate that the Code brought with it nothing new of substance. Al- so that Code authors have not under- stood these notable Code cases, as their citation and discussion of the principles involved show ; also that the courts are equally mired in confusion and bewilderment. And how can it be otherwise when we look and behold all of the antag- onisms that are apparent? Look at Story above cited on the one hand and 2 Thompson's Trials 2310, 2311, quot- ed under the title Variance, 4 Gr. & Eud. on the other hand. The views of the latter author are generally ad- vocated by Code authors and courts. The "Theory of the Case" has come to be recognized in most all of the states. (See Gulling v. Bank, 29 Nev. 266- 280; Cases cited and discussed there- in also in New York, Missouri and Illinois. ) From the various states eight kinds of Aider are discoverable and are in- troduced to operate against the cer- tainty and stability that flows from the operation of Verba fortius. (See Questions 15, 16, 17 and 18 ante. And now it seems that Baker v. Warner, 231 U. S. 588, 593, adopts the views of Judge Thompson. The latter case like Jackson v. Pesked is defensible but it is a case from which indefensible deductions can be made. It assumes that a "new dispensation" is at hand and that the court will embrace it. Now what is that "new" and "en- lightened" way unless it is the way advocated by Judge Thompson whose sections are above cited? (See Gul- ling V. Bank, supra; S. v. Muench (Mo.). Feudal followers appear to favor Jackson v. Pesked and Stennell v. Hogg more than Rushton v. Aspiiiall by Mansfield whom they werp taught to ignore They hated the lawyer of 216 THE LAW RESTATED Pleadings. — the ages. The latter case is reprinted and followed by Kent in Bartlett v. Crazier (N. Y.) L. C. 5 and 6, 3 Gr. & Rud. Here are the greatest of Code cases but no Code author or court has recognized them. They should be read and studied with Camphell v. Consalus and the other Code cases referred to. Herefrom the significance of the above questions will appear. Vicksiurg v. Henson, Nalle v. Oyster, Garrett v. L. & N. R. R. North Caro- lina and Slacum v. Pomeroy (reaf- firms Rushton V. Aspinall) all U. S. cases are excellent Code cases. And so is Dobson v. Campbell, L. C. 232a, 3 Gr. & Rud.; Minnesota. Jackson v. Pesked and Stennell v. Hogg are cases cited along with Ser- geant's Williams' view that substance can be waived. Tidd, Chitty and Steph- en and their editors and followers have tried to straddle the antagonism between these cases and that view. And herein is proof sufficient that these authorities did not comprehend the attitude of the state. (See ques- tions 9, 10, 11, 20, 21, 22, 23, 24, 25, 26, ante.) Not one of them compre- hended the true definition of Plead- ings, which is, "Pleadings are the ju- ridical means of investing a court with jurisdiction of a subject matter to ad- judicate it." (Section 48 Hughes' Equity In Procedure; See Story; Car- rett.) The above cases as viewed and inter- preted by the Feudal authors are noth- ing less than a snarl of snakes in the way of every student. They are al- together a veritable jungle of incon- gruities, absurdities and contradic- tions. We have referred to them as a "Shelley's" Case. Anent the above ob- servations let us be exact and precise for illustration's sake; for we are at the crux of important theories: There- fore let us suppose that either Jack- son or Stennell liad chosen and set the beacon lights we shall next mention and of these have observed: For all courts and for all ages the "Manner of the Romans" is the law and this law is imbedded in a trio of maxims which we gather and set as next follows : 1. De non ajtparentihufi c1 non rxisf- eniibus eadem est ratio: Wh.il is not juridically presented cannot be judicially considered, decided or adjudged. 2. Frusira probattir guod probaium non relcvat: It is vain to prove what is not alleged. 3. Verba fortius accipiuntur contra Pleadings. — proferentem: Every presumption is against a pleader. See ques- tions 15, 16, 17, 18, ante. The statement of every "cause of action'' or ground of defense must be consistent with this Trilogy of max- ims, also the logic and the philosophy that is deducible from them. Inter- est reipublicce ut sit finis litium is also an important maxim of the law. For the application of this ma-xim there must be Pleadings (See Camp- bell V. Consalus above cited), and these Pleadings are tested by the above Trilogy at the stage of the general demurrer and at all of its Correlatives. And of course at the stage of the motion in arrest {Gold- ham V. Edwards.) Also at Collateral Attack. Tliere is no fluctuation or variation of the construction for sub- stance at any stage. To hold other- wise would confuse and dismember the logic and the philosophy of the law of Procedure. Thereby we would show that we did not comprehend the attitude of the state in Procedure. Herefrom arises the rule that the gen- eral demurrer cannot be waived. This rule exists to protect the attitude of the state in Procedure. (See ques- tions 14 to 26 ante.) Garrett (the Federal test is the understanding of the defendant.) Illinois has shown conspicuous loy- alty to Tidd, Chitty, and Stephen as will appear by reference to Pennsyl- vania R. R. V. Ellctt, 132 III. 654, 662-664, whereat Jackson v. Pesked is quoted and approved also the above authors. And still and nevertheless in this case the court holds that at the stage of Collateral Attack more liberal rules prevail to uphold a Pleading than at the stage of its test by general demurrer. In Chicago R. R. V. Hines, 132 111. tlie court holds that after the argument of the general demurrer its grounds cannot be raised at the stage of the motion in Arrest. Consider these cases along with the presupposed opinion in Jack- son V. Pesked and the bewildering re- pugnances in that state will be sug- gested. Also the fact that Jackson and Stennell, and the Feudal authors have not given the needed light to safely guide the supremo 'courts which cite and approve them. Else- where we cite Baker v. Warner, which holds that more liberal rules prevail at the motion in Arrest than at the general demurrer stage. Garrett. TEXT-INDEX 217 Pleadings. — Consider this view in the light of what the court miglit well have de- cided in Jackson and in Stennell as above supposed. Had these cases have plainly stated the fundamentals from the Roman then how different would be the law of Procedure? To sum up we will state that the object of the above questions and ob- servations is to draw attention to the facts that there are certain Universal, Constitutional principles which under- lie all systems in common and that the irrelative discussions of these prin- ciples under a varied nomenclature is both delaying and bewildering. Also to the condition of the literature of these discussions. Also that the gen- eral demurrer and its correlatives rest upon the same tests and canons of construction throughout; and that chief among these is Yerha fortius. Also the necessity of grasping these fundamentals and uniformly respect- ing them and the logic and philosophy that are deducible therefrom which if ignored or lost there results the jar- gon and confusion that attend cases like Jackson v. Pesked by the authors named in relation thereto and who as guides lead courts to fill reports with hodge-podge; to make of procedure a mass of local and provincial statutes and decisions. To illustrate these facts we have cited New York, Missouri and Illinois among others. From these states we have cited decisions the most worthy and instructive while along- side these are antinonyms from the same court or perversions and distor- tions of the logic and philosophy of the law. This could not be if courts saw Verha fortius as a fundamental principle in the sections of Story, in Glarh v. Dillon and in G. & A. R. v. Clausen and in every argument of the general demurrer and of its correla- tives. See the trio of maxims above cited. We have indicated the impor- tance of Verba fortius also that it ap- plies alike in the Roman, the English, the Federal in New York, in Missouri and in Illinois. Yerla fortius is a Universal principle. Now which au- thor has plainly said so? (See Pom- eroy. Logic). Here we will submit to the judg- ment of the student what would have been the result if the court in Jackson V. Pesked had expressly named and vindicated the Trilogy of maxims we have mentioned in connection with that case. Also of what consequence it Pleadings. — would have been to the Illinois court quoting Jackson to have set out that Trilogy of maxims and have vindicated them as high Universal and Constitu- tional law. Also the consequence to any work on Pleading, or any set of reports to set out and explain those maxims. Whoever will look at these prin- ciples will wonder that no American court has quoted and upheld them as organic law. (See Codes.) These maxims if made index topic heads and the principles indexed to them become the most certain and useful of all in- dex topics. These principles are extendedly dis- cussed in Hughes' Equity in Proced- ure. They are the "Manner of the Romans" North Carolina B. R. POLHILI, v. WALTER, S B. & A. 114, L. C. 114, 3 Gr. & Rud. An agent war- rants his authority. POLICE POWER: See 4 Gr. & Rud. Legis- lative power ; 6 R. C. L. 182-232. POLITICAL QUESTIONS: 4 Gr. & Rud. Luther v. Borden. POLLARD V. LYON, 91 U. S. 225. De- famation of women ; Liberal rule. 24 L.R,A.(N,S.) 577-625, ext, n. 4 Gr. & Rud. POMEROY, PROFESSOR JOHN NOR- ton : Perhaps his Code Remedies is the most prominent and influential exposi- tion of the reformed Procedure. But it is not as good as Bliss, who was more conservative and who gave some splendid sections (138, 141) ; but he too failed as a constructionist also in dealing with the general demurrer. Re- lating to this his work lacks depth and breadth. Not one Code author or court has succeeded in explaining why the general demurrer cannot be waived. Nor have they given the needed light to illumine the questions in the cases we shall next cite. They have all failed to cite and to explain the major — the organic maxims of the law. In- stead they have ignored and renounced them. This is conspicuous in relation to the general demurrer and in reck- oning from and showing the interac- tions of Procedure with Res Adjtidi- cata, Collateral Attack, and Due Proc- ess of Law. They have not illumined the distinctions between a government that maintains Pleadings as the great- est bulwark of protection and a gov- ernment that tolerates the means of abuse of power and usurpation. (See De non.) The Code remedies has all these faults and more. It is cited and followed, 1 C. J. Cyc 138, 105.'), 1060. The Code came in 1848. Tlie first case Biddle v. Boyce (Mo.) ; also A'ho 218 THE LAW RESTATED Pomeroy. — V. Woodworth, and Allen v. Patterson (N. Y. ) show that the judiciary failed. They were like a child in the dark, in a strange room hunting for something. Plainly the courts were addled. They had read the screeds of the Federal Su- preme court (McFaul v. Ramsey), and the outrageous eiTusions of Charles O'Conor, all of which were gathered up and quoted by Tyler in his Preface to Stephen's Pleading which was to long continue as a great classic to light and to lead the way. (See Chitty. ) Who can deny that these works have led the way to cases like Gulling v. Bank and the discus- sions in New York over Clark v. Dil- lon; also to Weber v. Lewis, 34 L.R.A. (N.S.) 364-372, n. (commending Pomeroy as the standard author ) . And after Pomeroy has finished his works, whether or not Dovaston v. Payne {Verba fortius) is the law is a leading question. See Feudal Lawyer; Baker v. Warner, Logic. The efforts of Pomery and of the Federal Supreme court have not set- tled the status of De non apparenti- bus in our law. Pomeroy did not cite cases like Slacum v. Pomeroy and Mansfield's cases. He left the way open for orators to declaim for "the High court of Chancery," and the "Rules of the Supreme Court of the United States," for Tidd and his fol- lowers, not one of which has so im- pressed the Trilogy of Procedure, that the great sections of Story have been accepted as applicable to all systems and particularly to the Codes. The Federal Court from Slacum on down has continued to state paraphrases of the rule stated in the maxim as we find it in Slacum, also in J7. S. v. GruiksJiank, L. C. 232, 3 Gr. & Eud.; McAllister v. Kuhn, L. C. 3, 3 Gr. & Paid. § 242, 1 Gr. & Rud; Cragin v. Lovell, 109 U. S. 194; Minnesota, 194, U. S. 48-73 (Harlan J.). Nalle v. Oys- ter, Vickshurg v. Benson, and lastly and quite clearly, in Garrett. In a varied language, from many angles, the court has reaflirmed that maxim again and again. It seems that economy would justify that the iterated and re- iterated discussion be stereotyped, or if possible rubber stamped. And after all, Thompson is the most prominent and popular author. (See Story.) It looks as if some new treatment is de- manded and might it not be well to quote the maxim and clearly state Pomeroy. — what it meant before the Constitution- al Convention of 1789. This maxim is from of old and it is ever new; it has worn long but, then it has worn best. It is inimical to the "theory-of-the- case" doctrine. See Pleading; Litera- ture; Feudal Lawyer; Gulling. Almost all of our works on Plead- ing are a straddle of first principles. They do not cite and elucidate them so the profession can comprehend them. The late cases will show. (See notes to Cocherell, 50 L.R.A. (N.S.) 1-32.) The courts could not in that day give cases like Palmer v. Humiston or like Milbra v. Steel Co. Our author did not have cases like these to cite and expound. He wrote in a day shrouded in cloud and fog and he never rose above them. His work is a haze and is the straddle referred to. He tried to please all and that could not be done. To support these conclusions we call attention to his Par. 2, Pref- ace (1876), also his sections 75, 509- 514, 533, 546, 592, et seq. When he wrote his Equity he saw the maxims and he recommended them in his Municipal law. Now why did he not cite the major-organic maxims of Procedure — Pleadings? If maxims are good in some subjects then why not in all? I-Ie happened to have before him Equity works that cited the old cases and the maxims but he was not so fortunate as to the Code or Plead- ings. For this work he picked and blazed his ovpn way, but like Tidd chose statutes and cases. He never cited a maxim, or eases like Rushton v. As- pinall, or Bristoic v. Wright or Dovas- ton V. Payne (L. C. 5, 135, 217, 3 Gr. & Rud.) He did cite Antisdel v. R. R. which is like Dovaston v. Payne, ap- provingly. These cases alike stand for Verba fortius which he denounced in his section 546. In the light of these facts it seems apropos to ask if he un- derstood the Trilogy of Procedure and its Cognates? (§§ 1-13, Restate- ment.) And of all and generally here let us ask which Code author or Court has plainly told us that the Code simply reaffirmed these maxims; that it reaffirmed Quis, quid, coram quo? Now why did they not? Why have they not explained Jackson v. Pesked and Stennell v. Hogg and have made plain the supposed distinctions between "a defective title and a title defective- ly stated?" Around this question the TEXT-IiTDEX 219 Pomeroy. — Feudal lawyer and his followers had their wrangles and their clusters of "Shelley" Cases which have descended to the Code lawyers. There are Universal, Constitutional principles of procedure which are above local and fiat law. Now which one of these did Professor Pomeroy or his followers make prominent and comprehendible ? Wliich one of them cited Broom's Maxims, or Smith's Leading cases or any one of the major organic maxims ? So far as Professor Pomeroy is concerned he thought the Code was a "new dispensation" and that he was chosen to expound it. See the passages referred to. He never cited Story nor Greenleaf nor the old English cases like Bushton, which are among the best of Code cases. Nor did he and his followers explain the interactions of the rules of Pleading with "Due Process of Law," Res Ad- judicata, and Collateral Attack. Not one of them impressed pleading as a Jurisdictional element. (See Plead- ing.) Not one of them saw and vin- dicated the logic and the philosophy of Procedure referred to by Mansiield in Robinson v. Raley, L. C. 45, 3 Gr. & Pud. On the contrary they viewed the Code as local and liat. The sec- tions referred to will show. They thought something "new" had come and as some of the late cases hold Clark V. West, 193 N. Y. 349; Baker V. Warner (U. S.). The sections referred to and the Preface to Stephen, Chitty, Gould and Nash will show that the profession has needed a light that has not come. Look at Story (§ 10) on the one hand and Thompson (Trials §§ 2310, 2311) on the other hand. Authors who most openly assailed the old law and who led furthest from it have been most prominent, most sought and most ap- preciated by the legal profession until now they are assailed by the leading men of the profession and by the pro- letariat alike. (MuUitudo imperi- torem perdit curiam.) The lawyer and his establishments are much un- der discussion in both high and low places. The late cases tell the story. Look at Gulling v. Bank (Nev.) ; also Henry V. miliard, 44 L.R.A.(N.S.) 1-44 (omission of the allegation that the vendee took possession of the land un- der and in pursuance of the oral con- tract was supplied by a failure to Pomeroy. — plead also to object to the introduction of irrelevant evidence). Also Ealli- gan v. Prey, Id. 112-120. See Lester V. Fuxcroft, L. C. 341, 3 Gr. & Eud. Look also at Bowen v. Emmerson (Or.) and Weber v. Lewis, 34 L.E.A. (N.S.) 364-372, ext. n. Garrett. It is to these ends that the great authors and courts have led. It is superfluous but, we will add that they have failed. They have made a mystery of the Code. See Rushton. Of what use are their expositions in discussions of cases like Garrett v. R. R. and Horth Carolina R. R.f See Logic. POSSE COMITATUS: i Gr. & Eud.; 44 A. S. 127-40 ; R. r. Sherlock; Robin- son V. S., 4 Gr. & Rua. POSSESSION: Eight o£ ownership pre- sumed from. 3 L.E,A.(N.S.) 49, 150, ext. n. ; Williamson v. Brown^ 4 Gr. & Rud. Lester. POTIOR EST CONDITIO DEFENDENTIS (or possidentis) ; See In pari; Favor- ahilores. Adore. POUIiTON V. K. K., L, E. 2 Q. B. Dlv. 534, 19 L.E.A. 825, 826. Malicious acts of agent ; principal not liable for. Mc- Manus. To illustrate : A conductor ar- resting a passenger for crime. Respon- deat superior. OiWan (1903), 2 K. B. 600, 1 Br. E. C. 528-555. POWER OF ATTORNEY: 4 Gr. & Eud. PRACTICAL CONSTRUCTION: Contem- poranea. "Tell me what you have done under a deed and I will tell you what this deed means." Drury & War. 363, quoted with approval. Waters, 34 App. Cas. D. C. 580. PK^SBNTIA CORPORIS TOLLIT ER- rorem nomlnas, et Veritas nominis tollit errorem demonstratlonis ; The presence of the body cures the error of the name. Res ipsa loquitur; Manifesta probatione non indigent. See Equity. PR.ESUMITUB PRO JUSTITIA SEN- tentise. The justice of a sentence should he presumed. See Authority ; Res Ad- judicata. PRAYER: See Ad damnum; White, L. C. 140, 3 Gr. & Rud. ; 2 Suth. Dam. 415, 18 L.E.A. 524. PRELIMINARY BX.WIINATION: See 4 Gr. & Rud. PREPONDERANCE OF EVIDENCE: See Bonnell v. Wilder, L. C. 185, 3 Gr. & Rud. PRESCRIPTION: 4 Gr. & Rud. PRESCRIPTIVE CONSTITUTION: That body of organic law that is expressed in the major — the organic maxims of the law. To Illustrate : Idem agens ; and its cognates are of the higher law that control local and flat law, §§ 509-522 Hughes' Equity. Hemo debet esse judex in propria sua causa is of the higher law and to it Constitutions and statutes must yield. In prce- sentia majoris. Another illustration is the Trilogy of Procedure and its cognates. The due administration of the laws depend upon respect for the major — the or- 220 THE LAW RESTATED Prescriptive, etc. — ganic maxims of Procedure. It is ab- surd to think of opeTating a court in opposition to the maxims we select and present. These should be turned to and comprehended from a Consti- tutional standpoint. Anent De non; we made observations that are apropos here. "Parliament is omnipotent" with the Feudal lawyers and their followers and following this motto of govern- mental bigotry and arrogance has filled the law with antinonyms. Look at the decisions over the statute of Jeofails. Clark v. Dillon and its cog- nates; at Gulling. The mystery of the Codes and Prac- tice acts can only be cleared by a right comprehension of the Trilogy of Pro- cedure. Whoever will look from this at the discussions around Jackson v. Pesked; Stennell v. Bogg; Rushton v. Aspinall; Bristoto v. Wright; Dovas- ton V. Payne; Camphell v. Consalus and its cognates will perceive the hope- lessness of waiting for more legislation and more cases. The remedy lies with the lawyer and his establishments. See Multitudo imperitorem perdit curiam. The higher law guarantees justice without delay. Nulla vende- nus. But look at the sloth and the delay in the courts. Tlie lawyers are mired with questions relating to what constitutes "Due Process of Law" as if something new had come or was coming. Look at the discussions around the general demurrer, and its cognates — its correlatives. GoldJiam V. Edwards. The American profession is indebted to David Dudley Field for the draft of the Code reaffirming the major maxims — the organic principles of Procedure. Also Justice Field for Pennoyer v. Neff, L. C. 58, 3 Gr. & Rud. also Wind- sor V. McVeigh, L. C. 1, 3 Gr. & Rud. But more decisions like these are need- ed and such as IS/alle v. Oyster and Vicksbiirg v. Benson. Tliese aid to establish fundamental principles. But decisions are needed which expressly state the fundamental law of old also that it will be respected by the court. Decisions like Palmer v. Bumiston and Milbra v. Steel Go. state the law in unmistakable terms, and further away from local statutes and home decisions than do most of the Federal cases. Decisions untrammeled with local and flat law are much needed. Procedure in American courts is terra incognito. Especially of what Prescriptive, etc. — relates to Due Process of Law; also as to whether or not the authority of a judgment must affirmatively appear; and whether or not pleadings are jurisdictional. Nalle v. Oyster; Knick- erbocker. Pomeroy. One of the most important questions for the student to grapple mth and have definite conclusions relating to is whether or not Pleadings are Jurisdic- tional; North Carolina. The discus- sions around Campbell v. Consalus; Mondel v. Steel and Munday v. Vail, L. C. 77, 79, 3 Gr. & Rud. will lead the way to these discussions. Also see Story; Modus et conventio. Introduc- tory Chapter, Restatement. The higher law vindicated. Quinn V. P.; G. V. Bess, L. C. 216, et seq., 3 Gr. & Rud. ; Dash v. VanKleek, 2 Kent. 8-12 ; »S'. Eod rel. Benson v. Sheppard. There is fundamental law antedat- ing Magna Carta which controls. Quimby v. Ba^en, 54 Vt. 132, 139. See Chapter XVIII Equity In Procedure. S. Ex rel. Benson v. Sheppard; Oakley V. Aspinwall, L. C. 222, 3 Gr. & Rud. The prescriptive Constitution limits and controls all other laws. It dic- tates lesser laws. §§ 10, 12, 14. Re- statement. It dictates the organic law of the leading subjects. §§ 17, 21, 26. In McMullen v. Boffman Judge Peckham declared that the law of Con- tract arose from a few maxims. § 17. Restatement. Parliament is not oinnipotent. § 21, Restatement. See Parliament. The Prescriptive Constitution is the higher law. § 25, Restatement. PRESENCE OF THE PRISONER: 4 Gr. & Eud. Mandatory record must show Sperry v. C; Howard r. Ky. 4 Gr. & Rud. It must also present other matters. Chray V. P. 49 L.R.A.(N.S.) 1215. PRESIDENT OF CORPORATION; OF tl. S. Presidential Electors. 4 Gr. & Rud. PRESUMPTIONS: 4 Gr. & Rud. From the Trilogy of Procedure, also of lib- eral construction, arise many presump- tions. De non apparentibus and Verba fortius are dominating presumptions upon the operation of which devolve the vindication of the substantive rights of the state. See Coram Jvdice. The authority to enter a judgment is not presumed; it must juridically ap- pear. Clem. L. C. etc., 3 Gr. & Rud. Sees. 124-128, 1 Gr. & Rud. See Man- datory Record. Effect of presumptions. Bonnell, L. C. 183, 3 Gr. & Rud. Knickerbocker. Consensus tollit errorem is a presump- tion; for one is presumed to con- TEXT-INDEX 221 Presumptions. — sent to error unless he ohjects. Sec. 53, 1 Gr. & Rud.; L. C. 290a, 299, 3 Gr. & Rud. also sees. 245-269. See Ap- pellate Procedure. Omnia prcesumtintur rite is the pre- sumption of regularity extendedly dis- cussed in Crepps v. Burden, L. C. 113, 3 Gr. & Rud., ci seq. Sees. 131-133, Equity. See Appellate Procedure; Williams v. Peyton; 8. v. Fasse. In relation to the above maxims are extended discussions which involve many cognate maxims and cases, such as Proiatis extremis prwsumuntiir me- dia; Res ipsa loquitur; Allegans con- traria non est audiendus. These are instructive when considered in connec- tion with Verba fortius accipiuntur contra proferentem-. "Every one is presumed to intend the natural, direct and probable conse- quences of his act" involves phases of presumptions of extended discussions, which often include In jure non re- mota, of which the Squib Case, 4 Gr. & Rud. is a fine illustration. This case is widely cited in tort; but the prin- ciple it expresses is of very general ap- plication in all branches. In Procedure the principle is ap- plied to him who made the first fatal defect in his pleading. One pleads at his peril. Clark v. Dillon, 97 N. Y. 370; Mallinckrodt. In equity the principle is, "where one of two equally innocent persons must suffer from a fraud of a third, he who first trusted must first suffer." Lickbarrow, L. C. 394, 3 Gr. & Rud. See Price v. Seal. Acta Extoriora indicant interiora sec- reta: L. C. 165, 3 Gr. & Rud. In contract, the last rule is applied in agency; also other relations. It has a wide application in commercial paper, wherein it is invoked by the botia fide purchaser. Sujift v. Tyson, 4 Gr. & Rud. Green County, 211 U. S. 582. issent to a contract is presumed when. Boston Ice Co. u. Potter, L. C. 320, 3 Gr. & Rud. Execution and delivery of contracts. Williams v. Stoll, 4 Gr. & Rud. ; Hale, 62 W. Va. 609, 14 L.R.A.(N.S.) 221, n. (that they were read) ; McFadden V. R. R. 92 Mo. 343, 1 Am. St. 721 (bill of lading) ; Cherry v. R. R., 2 Gr. & Rud. (carrier's ticket) ; Penna. R. R. V. Loftis, 72 0. St. 288, 106 Am. St. 597, ext. n., 4 Gr. & Rud. (ticket.) Unconscious person presumed to as- sent to necessary medical treatment. Cotnam, 83 Ark. 601, 119 Am. St. 157, Presumptions. — 12 L.R.A.(N.S.) 1090 ext. n. See A'on hoec; Necessitas Contra; Smart v. K. C, 208 Mo. 162, 123 Am. St. 415-448; Mohr, 95 Minn. 261, 111 Am. St. 462 ( consent to operation on one ear is not consent to operation on the other ) . Expressio unius. In crime: Where one uses a deadly weapon he is presumed to intend to kill. C. u. York, L. C. 197, 3 Gr. & Rud.; S. V. Hays, 23 Mo. 326; Spies V. P.; P. V. Lauyrence, 68 L.R.A. 193- 223. Every one is presumed to know the law. Ignorantia Legis. Knicker- bocker. Innocence is presumed until the con- trary appears. Coffin v. V. S., 156 U. S. 43 ; Bonnell, L. C. 185, 3 Gr. & Rud. Burden of proof devolves upon him who affirms, and not on him who de- nies. Affirmanti, etc.; Actore; Sem- per. Adore non probante reus absolvitur ; Semper malum non prccsumitur ; Semo prwsuniitur inalus; Xihil ne- quum est prcesumendum. Sanity is presumed until the contrary appears. WN aughten' s Case. L. C. 195, 3 Gr. & Rud. S. v. Marler, L. C. 188, 3 Gr. & Rud. Spies v. P., 4 Gr. & Rud.; see Intent; Malice. Wrongdoer; every presumption is against. Omnia prcesum/atitur contra spoliatorem. Armory, L. C. 180, 3 Gr. & Rud. Every presumption is in favor of one speaking in extremities. Ko one is presumed to trifle at the point of death. Nemo prcesumitur tudere in extremis. See Dying Declarations. Continuity; presumption of. 1 Gr. Ev. 41, 42; Carotti v. S., L. C. 179, 3 Gr. & Rud. ; Adams v. Lindsell. Recent possession of the fruits of crimes. R. v. Partridge, L. G. 190, 3 Gr. & Rud.; S. v. Floyd, 15 Mo. 356; S. V. Brady, 121 la. 561, 12 L.R.A. (N.S.) 199-221 (burglary). Reasonable doubt. C. v. Webster, 5 Gush. 295, 52 Am. Dec. 711, 739; Bon- nell, L. C. 185, 3 Gr. & Rud. Death; presum.ption of from absence. Jiepean v. Doe; Scott v. lIcNeal, Mod- ern Woodmen, — Okla. — , L.R.A. 1915B, 729-761, 4 Gr. & Rud.; Thomas V. P. 107 111. 517, 47 Am. Rep. 458, Sec. 348. Possession of cash, or of bill or note, is presumed rightful and regular. Bonnell, L. C. 185, 3 Gr. & Rud.; Mil- ler V. Race, 4 Gr. & Rud.; Swift; Bentley. '^.■~>,9, THE LAW RESTATED Presumptions. — Possession of real estate; notice of oc- cupant's rights. Le Neve, L. C. 396, 3 Gr. & Rud. ; Williamson v. Broion, 4 Gr. & Rud.; Allen-West Co., 92 Miss. 837, 131 Am. St. 556, n.; NiJes, 98 Minn. 39, 13 L.R.A.(N.S.) 49-140, ext. n. Open, notorious, unequivocal, exclusive and continuous possession of real es- tate; presumptions from. Lester v. Foxcroft, L. C. 341, 3 Gr. & Rud. Man- ifesta. Possession is indicia of right; sale of chattel by one in possession; effect. Davis, 6 Ind. Terr. 124, 25 L.R.A. (N.S.) 760-796, ext. n. Consideration prima facie presumed for a hill or note. Rann, L. C. 312, 3 Gr. & Rud. Deeds; sealed instruments conclusively import a consideration. Jackson v. Cleveland, 2 Gr. & Rud. See Deeds. Td.; Strong v. Whybark, 204 Mo. 241, 12 L.R.A.(N.S.) 240. Legislative acts presumed right atid reg- ular, and free of fraud. Fletcher v. Peck, 2 Gr. & Rud. Its records con- clusive. Post V. KendalV^o. Of negligence from happening of acci- dent. Res ipsa loquitur. 4 Gr. & Rud. Kearney, L. C. 211, 3 Gr. & Rud. Wal- ter, 109 Md. 513, 22 L.R.A. (N.S.) 1178; Joyce v. Black (1910), 226 Pa. St. 408, 70 Cent. L. J. 298, n. (Denies Kearney. ) Letters ; Presumptions of reception from mailing; The facts to be proven from which the presumption arises. The fact of writing, addressing, sealing, and properly prepaying the postage when required, and depositing in the office must be stated. Conclusions will not do. Fcdcr, — N. M. — , 49 L.R.A, (N.S.) 458-470. Om.nia prai- sumuntur rite: Badges of fraud. Twyne's Case, 4 Gr. & Rud. Fraud is not presumed. Sec Fraud, 2 Gr. & Rud.; Nemo prwsumitur malus. Manifesta prahatione non indigent. Manifest things require no proof. 4 Gr. & Rud. Presence at a prize fight is proof of guilt, ynsritur. Prmsentia corporis tollit crrorem nom- inis. When the body of the thing is present, its name is immaterial. Nos- citur a sociis. Common carrier has all presumptions against it, irhrrc the freight is lost. Coggs, L. C. 350, 3 Gr. & Rud.; Inman. Alteration of documents ; presumptions relating to. Master r. Miller, 4 Gr. & Rud.; Stromberg, 81 Neb. 517, 18 Presumptions. — L.R.A. (N.S.) 680, n.; Kalteyer, 102 Tex. 390, 132 Am. St. 189 (Grantee- must explain ) . Commercial paper, conclusively presumed genuine if drawee pays it. Price v. Neal. See Mistake; Tobey. By accepting commercial paper it is presumed one agreed to give notice of its dishonor. See Commercial Paper. Holder of commercial paper has pre- sumed authority to fill blanks left therein. Angle v. Ins. Co. 92 U. S^ 320, 2 Gr. & Rud. Presumptions in favor of judgments. See Clem, L. C. 2c, 3 Gr. & Rud.; Coram Judice. Morningstar; Process. Om- nia prcesumuntur rite. Jurisdictional averments. De non ap- parentibus; North Carolina. Knick- erbocker; Bouen u. Emmerson; Quis, quid; Vt res. Jurisdiction of the person. See Process; Galpin v. Page, L. C. 63, 3 Gr. & Rud> Prejudicial ei'ror not presumed from mat- ter in the statutory record. It must affirmatively appear. Morningstar. PRICE T. SEELEY, 8 CI. & Fin. 28, 1 B. & H. L. Crim. cases, 177. Justification for arrest ; Facts must be pleaded. J' An- son r. Stuart h. C. 91, .3 Gr. & Rud. PRICE V. TORRINGTON (BARI, OF). Sm. L. C. ; L. C. llSf, 4 Gr. & Rud. Shop bool 1-67. RATIFICATION. See Omnis ratihaiitio : Qui sentit: In fictione juris. RATIO EST rORMALIS CAUSA CON- suetudinis ; Reason is the source and mold of the law of custom. Reason is a ground and rudiment of law. See Reason. What is contrary to custom and reason is not law. Quod est inconveniens : See Reason ; Convenience. BEADHEAD v. B., 5 Q. B. Div. 379. Carriers bound to the greatest care but they are not insurers. The Caledonia, 157 U. S. 136, quoting Readhead. See Bailments, L. C. 350-357, 3 Gr. & Rud. EEAL ESTATE. 4 Gr. & Rud. BEAIi PARTY IN INTEREST. 4 Gr. & Rud- Quis, quid. REASONABLE DOUBT. 4 Gr. & Rud. 19 L.R.A.(N.S.) 483. Holt v. V. S. 218 U. S. 245. Innocence is presumed and guilt must be proved. Coffin v. V. S.; Davis V. U. 8. 160 U. S. 469. KEBUTTAIi EVIDENCE. 4 Gr. & Rud. RECAM,. See Initiative. RECEPTION. 4 Gr. & Rud. BECEDITCR A PLACITIS JURIS, PO- tius quam injuriae et delicta maneant im- punita : Positive rules of law will be receded from rather than crimes and wrongs should remain unpunished. Boni judicis: Prom necessity courts must pro- tect society. If there was no law pun- ishing attacks upon life, liberty and prop- erty still any civilized governments must protect its citizens or meet the fate that awaits false and traitorous shams and pretenses. One cheating another must be punished notwithstanding the letter of constitutions and statutes. See Quod lew non vetat permittet. 4 Gr. & Eud. Boni Judicis. RECEIPT. 4 Gr. & Eud. RECEIVER. 4 Gr. & Eud. I RECEIVING STOLEN GOODS. 4 Gr. & I Rud. RECENT POSSESSION OF THE FRUITS of crime. R. v. Partridge, L. C. 190, 3 Gr. & Rud. RECITAL. Judicial recitals; When bind- ing. Ferguson v. Crawford, L. C. 264, 3 Gr. & Rud. Yichs'burg v. Henson : Knick- erbocker V. Trust Co. N. y. .Tudges are bound by their records. Windsor v. Mc- Veigh. L. C. 1, 3 Gr. & Rud. ; Munday v. Vail. L. C. 79, 3 Gr. & Rud. Mondel v. Steel, L. C. 3 Gr. & Rud. See Records ; Introductory Chap. Restatement. RECOGNIZANCE. 4 Gr. & Eud. RECONVENTION. See McLeod v. Bcrtch- sky. RECORD. Confers authority upon a court. See Recitals. Are a constitutional implication. Expressio eoritm: Implica- tions. Mandatory Record. BECORDA SUNT VESTIGI.A VETUS- tavis et vertitatis : Records are vestiges of antiquity and truth : Contra scriptum. RECORD RULE. "What ought to be of record". Contra scriptum: See Equity In Procedure. RECOUPMENT. 4 Gr. & Rud. RECOVERY AT LAW ENDS LITIGA- tion. Harriot. Res Adjudicata. RECTE COMPOSITUS: Cited, § 5, Re- statement. Quis, quid. REDDENDA SINGULA SINGULIS: Let each be put in its proper place ; i, e. that the words be taken distributively. 4 Gr. & Rud. REDIRECT EXAMINATION. 4 Gr. & Rud. REDUNDANT MATTER. 4 Gr. & Rud. Utile: Surplusage. BEES V. BBRRINGTON. Wh. & Tud. L. C. Eq. Cases. L. C. 334, 3 Gr. & Rud. Sureties ; Change of contract releases. Non haec: Res inter alios: Alterum. REFERENCE. 4 Gr. & Rud. From one i count to another. 4 Gr. & Rud. i REFORMATION OF DOCUMENTS. 4 Gr. & Rud. REGINA V. CASES. See R. V. cases. REGULA PRO LEGE SI DEFICIT LEX: Where the law is deficient the maxim rules. Cited, sec. 14, Restatement. This we classify as a maxim of the Trilogy of Equity. It is equally one of Construction. It stands for the fundamental law. Al- terum: Lex non exacte: Receditur a placitis: Expressio eorum. REGULARITER NON VALET PACTUM de re mea non alienanda : Regularity a contract not to alienate my property is not binding. Alienation Is favored. Poc- ta: In pari: REGULARITY. Omnia prcesumuntur rite: § 53, 1 Gr. & Rud. BEGULAB PBOCESS. Qui jussu: Savacool V. Boughten, L. C. 164, 3 Gr. & Rud. EELATib EST. FICTIO JUBIS ET IN- tenta ad uoum : Relation is a fiction of law and is intended for one thing. RELATION. Doctrines of Cooper v. Chittii, Sm. L. C. ; 4 Gr. & Eud. RELEASE. 4 Gr. & Rud. For injuries may be set aside. 35 L.R.A.(N.S.) 660- 666, n. Oral evidence can not affect. U. S. V. Cramp, 206 tl. S. 118. See Oral Evidence, 4 Gr. & Eud. RELEVANCY OF EVIDENCE. Frustra: Departures ; Variance. 232 THE LAW RESTATED KELIEF. Must be asked. See Ad datn- num. Qms, quid: Prayer. TJt res. RELIGION. 4 Gr. & Rud. RELIGIOUS SOCIETIES. See Church 4 Gr. & Rud. REMEDIAL. STATUTES. 4 Gr. & Eud. Terre Haute R. R. REMEDIES FOR RIGHTS: REMEDIES: Remedy : 4 Gr. & Rud. REMITTITUR. When trial court may order. 39 L.E.A.(N.S.) 1004, n. REMOTENESS: See PROXIMATE CAUSE; Causation. In jure: 36 A. S. 803-S61. Squib Case. REMOVAL OP CAUSES. This is a right conferred hy the Supreme law of the land and it cannot be derogated from by state laws. In prwsentia majoris: For a removal there must be pleadings ; these cannot be legislated and stipulated away. Camp- bell V. Consalus; Qui concedit aliquid; Expressio eorum. P^e 1 Gr. & Rud. 83-103. Contra Gulling. Only by pleadings could one determine what Ills rights to remove were. For this Quis, quid, must be respected. C. B. & Q. R. R. 220 U. S. 413. For the removal of causes certainty is re- quired. 4 Gr. & Rud. Verba fortius: Statutes providing for. See 2 Hughes' Procedure. RENAISSANCE OF THE CIVIL LAW. 4 Gr. & Rud. RENNSBERGER T. BRITTON, 31 Colo. 79-83. Oppressive application of Res Ad- judicata. 4 Gr. & Rud. ; 2 Hughes' Proc. Also Equity. Qulling. RENUNCIATION. Of contract gives Im- mediate right to sue. Frost v. Knight, L. C. 308. 3 Gr. & Rud. REOPENING CASE. 4 Gr. & Rud. REPEAL. See Statute, Equity. REPETITION. Prolixity. Surplusage. REPLEADER. When a court may order. Garland v. Davis, L. C. 60, 3 Gr. & Rud. The substance of a case is respected and if it appears that a case has merits but has not been juridically presented {De non) the court will sua sponte order that the case be repleaded. Vt Res: This practice answers some of the slan- ders upon the old judges to defeat a case on technicalities. See Story. REPLEVIN. Specific delivery of Chat- tels. Pusey V. Pusey, L. C. 276, 3 Gr. & Eud. Detinue: 18 L.R.A.(N.S.) 1265, n. REPLICATION. Waiver of. See Theohy OF THE Case. Cape Girardeau R. R. cited in Equity. REPLICATION DE INJURIA. 4 Gr. & Rud. REPLY. See Replication. REPUGNANCY IN PLEADING. Repug- nant pleadings are void. Pain ex parte, L. C. 107, 3 Gr. & Rud., Tilden v. P. 242 111. 536, 134 A. S. 344 ; Palmer v. Humiston. These would not serve the high policies of Procedure. See Removal OF Causes, ^ihil possumus contra veri- tatem. Allegans contraria. Such plead- ings would not serve the state. Interest reipublicw: Alterum. Ambiguous plead- ings can be waived. Rush-ton v. Aspinall, L. C. 5, 3 Gr. & Rud. A repugnant Plead- ing cannot serve the requirement of the juridical presentment. Quis, quid. In- consistent pleadings — defenses cannot avail. Dickson v. Cole, L. C. 34, 3 Gr. & Rud. One cannot deny and admit at the same time. Verba fortius. Ililmer, 86 Neb. 285, 292. Turpis est pars. Roberts v. Moon; JJt res. An absurd pleading is no better than a repugnant pleading, charging that a crime was committed In "18902" is absurd. It Repugnancy, etc. — is fatally bad and is not aided by a stat- ute. S. V. Terrell, — Ind. — , 2 L.E.A. (N.S.) 251. This is not aided hy a stat- ute providing that on or about is a suflB- cient pleading. It seems well to observe that such a statute could not uphold that pleading where under the statute of limitations the otCense is barred. Repugnant clause in a deed is void. WilJcin. Ut res.- REPUTATION. Injury to. See Defama- tion, 4 Gr. & Rud. Eum qui: General reputation ' admissible to prove character of a disorderly house. 41 L.R.A.(N.S.i 593. RERICE V. KERN, 14 S. & E. 267. Oral license to occupy land many confer title. Cape Girardeau R. B. v. R. R., 222 Mo. 461, Cited in Equity. Provolt v. R. R. 57 Mo. 256. See Equitable Estoppel ; Lindsay v. Cooper. See Frauds and P., 2 Gr. & Rud. RES ACCESSORIA SEQUITUR REM principalem : An accessory follows its principal. Expressio eorum: Incidents: Implications. RES ADJUDICATA FACIT EX ALBO nigrum, ex nigro album, ex curvo rec- tum, ex recto curvem : A thing adjudged makes white black, black white, the crooked straight, the straight crooked 4 Gr. & Rud. The doctrine of Res Ad- judicata is exceedingly strict. Of course it is limited by strict tests as its rules show. RES ADJUDICATA: FORMER JEOP- ardy: Estoppel of record. The neces- sities of Res Adjudicata dictate many rules of Procedure. Tliis subject rests upon a cognate of the Trilo- gy of Procedure — Interest reipublicw ut sit finis litium. This is the reason why Pleadings cannot be stipulated away. Campbell v. Consalus. Alte- rum non Icedere. Res inter alios; Pacti privata. See 4 Gr. & Eud. ; also Equity. One of the rules is that every presumption is against the Es- toppel; Estoppels are strictly taken. These are a paraphrase of Verba for- tius, which is the burden of Clark v. Dillon, and its cognates. It is this maxim that the statutes of Amend- ments and Jeofails are aimed at. So we see these statutes and "the liberal provisions of the Code" are directed at the heart and vitals of Res Adju- dicata, and the maxim upon which it rests and has been developed. Here- from appears the soundness of the rule of liberal construction in Dobson v. Campbell, L. C. 232a, 3 Gr. & Eud.; Walter, 250 111. 420. The "Theory of the Case" is destructive of the rules of Res Adjudicata. See (rulling. Kemo debet bis vcxari is a fundamental principle of the law. Marsh v. Pier; 1 Gr. Ev. 531. Local and fiat laws must be construed consistently with these fundamental principles. Oakley V. Aspinwall, L. C. 222, 3 Gr. & Eud. TEXT-INDEX 233 Res, etc. — In prcesentia majoris 1 Gr. Ev. 522- 540; Sto. Eq. PI. 790-794; 1 Hughes, Proc. 121-146. How to plead and prove Res Adjudi- oata is one of the most unsettled ques- tions of the law. It is not even set- tled what matter must present the plea. Some hold that it may appear from oralities as in Missouri. Others that it may appear from opinions; others that it may appear from the evidence (See Theory of the Case); others that the matter may be picked from the statutory record; others that it is presumed from a judgment entry as in Gulling and its cluster of cases and as has been held in Illinois. In still others that only the mandatory record is opened and the jurisdiction- al elements are consulted which of course include the Pleadings {Mondel V. Steel, L. C. 77, 3 Gr. & Rud.; Vickshurg v. Benson; Xalle v. Oyster; Palmer v. Bumiston ; Milhra, 45 L.R.A. (N.S.) 274, 277-278); stipulations will not do for Pleadings. Campbell V. Consalus and its cluster of cases "What ought to be of record must be proved by record and by the right rec- ord;'' Contra scriptum. Fiunt enim: The difficulties are indicated in 4 Gr. 4 Rud. The Kingston Case, L. C. 76, 3 Gr. & Rud. is of little value. The true principle is that it must be pleaded. If it is called to a court's attention that the matter is already adjudicated, then no trial should be ordered until the question of quasi abatement is first settled. For this the court should order a repleader and that the former record be pro- duced and compared. This is a ques- tion for the court and not for a jury, as the Feudal lawyer has too long contended. With him the general is- sue, the general allegation, his Com- mon Counts and his Aider by verdict and all tiie other Aiders that have been countenanced for pleaders who did not understand or respect first principles are incompatible with rules of Res Adjudicata. (See L. C. 25-30, 3 Gr. & Rud.; also 4 Id.; also 1 Id.; also 1 Hughes' Proc. §§ 121-146; These views can be picked out of 1 Gr. Ev. 522-540. The Feudal Lawyer and Ms authors have never comprehended the dominan- cy of this subject in Procedure. (See 1 Gr. & Rud. §§ 83-123; Garrett; Pa- riaso v. U. S.) Res est misera ubi jus est vagum, et inoertum. Res, etc. — Every philosophical work on Evi- dence and Pleading should give a rg- sumfi of this subject for it domi- nates almost all rules of Procedure (See Alterum; Interest reipublicw) ; also the cognates of these maxims; The Feudal Lawyer has not yet shown that he clearly perceives that Verba fortius is simply paraphrased in "Estoppels are odious and are strictly taken;" that "Every intend- ment is against the estoppel." And that herefrom arises the rules re- quiring Certainty of Pleadings and of records. Around these questions he has given a thousand pages of hodge podge for every one of correlated prin- ciples and even more. The confusion may be judged by the topic Abate- ment in the latest effort to present the law in the Corpus Juris Cyc, see Abatement. Only works that correctly define Pleadings, the rules of the general demurrer and its correlatives and the mandatory record can lay just claim to comprehendibly present this subject of the other high policies of Pro- cedure. (See 1 Gr. & Rud. §§ 83-123.) Astromomy cannot be learned from an almanac. Untutored savages can- not teach nor understand algebra. How problems of these subjects would fare if given out to intellects not trained in fundamental principles can easily be imagined. Now has the gen- eral demurrer and its correlatives in- cluding Collateral Attack and Res Adjudicata fared any better under the tutelage and teaching of the Feudal Lawyer? (See Literature; Feudal Lawyer ; Mandatory record ; Consensus tollit errorem; Quod ab initio.) The contributions of the Feudal lawyer for the restoration of Res Ad- judicata have not enabled him to de- fine the elements of the Coram judice proceeding; nor whether Pleadings are jurisdictional; (See Gulling and its cluster of cases; also Story) he has been so superficial and empirical as to believe that a mere change of verbal expression makes a difference of substance. To illustrate: for max- ims of Equity and as something "new" he accepts paraphrases of such maxims as In pari delicto : ( See Equity ) ; the legislative expression of Quis, quid, coram quo, he calls something "new" and "modern" {Cockerell, 50 L.R.A. (N.S.) 1-32); he dwells long and tiresomely on the law of abatement and 234 THE LAW EESTATED Res, etc. — finds much that he thinks is "new" and "modern" and the "Code" when he does not point to a, solitary thing that is "new" or "modern" that is not a flagrant breach of the law (Cor- pus Juris Cyc title Abatement) ; he has failed to see that the Trilogy of Procedure {Terha fortius) is para- phrased in the rules of Res Adjudicata also in rules of Jurisdiction (See Res Adjudicata, 4 Gr. & Rud. ) ; nor does he clearly and congruously see and make plain that the Due Process of Law of American states is nothing more nor less than the "Manner ol the Romans," of antiquity and of the Eastern Hemisphere. He cannot de- fine his "Due Process of Law," nor has he ever comprehendibly defined the elements of the Coram jiidice pro- ceedings; and its necessity and Con- stitutional incident, the mandatory record; look at all of these matters from the angle "Theory of the Case;" also what is observed in relation to Story. Introductory Chapter, Restate- ment; Oarrettj Pariasdo v. U. S., North Carolina. XJhi jus incertum. The mandatory record and its rules are cognate to this subject. Also the Tril- ogy of Procedure and cognate prin- ciples. See Quod ah initio; also the rules of the general demurrer. Also Quis, quid. How pleaded and proved. See Outram V. Morewood, L. C. 2.5 et seq., 3 Gr. & Rud.; also Kingston's Case, L. C. 76, 3 Gr. & Rud. See V. S. u. Perez, L. C. 09, 3 Gr. & Rud. et seq. Splitting causes of action not allowed. Perez, L. C. 2e, 3 Gr. & Rud. Recovery at law ends litigation. Harriot. De- fenses not pleaded are waived. Pal- mer V. Humiston. Pleadings essential to show what was litigated. Mondel v. Steel, L. C. 77, 3 Gr. & Rud.; Nolle v. Oyster; YicJcshurg v Henson. Uncertain record will not do. 1 Gr. Ev. 531; Lea, L. C. 30, 3 Gr. & Rud. See Dovaston v. Paijtir and what BuUer J. said of Cokes three degrees of cer- tainty. Rules of, are paraphrased maxims. §§2, 22, 23, Restatement. The Trilogy of Procedure are rules of. § 10, Restate- ment. The Plea of, technical and re- fined, § 10; See Mandatory Record. Depends upon the mandatory record. §§ 10, 22, 23. But see 1 C. J. Cyc 66, 100; Gulling. Statutory record docs not support a plea of. § 13, Restatement. BESCISSION OF CONTBACT. For fraud. Van Houten; Wightman. BES EST MISEBA UBI JUS EST VAGUM et incertum : It is a miserable state of things where the law is vague or uncer- tain. Vti 'jus incertum: htare decisis: Multitiido ; Res Adjudicata. BES GEST^: 4 Gr. & Rud. 95 A. D. 45-79, ext. n. Bpies v. P; 209 N. Y. 135, 46 L.R.A.(N.S.) 675; 42 I..R.A.(N.S.) 917, ext. n. BES INTBB ALIOS ACTA AtTEKI nocere non debet : A transaction between two ought not operate to the disadvan- tage of a third. Cited, sees. 4, 12, 16, 20, 22, 25, Restatement. This maxim is obviously related to Alterum non Iwdere; In Pari. And so it is that the state being interested in litigation its interests cannot be waived or disregarded. Camp- hell V. Consalus (pleadings cannot be waived, or stipulated away). Modus et conventio: Only those who are parties to a record are bound by it. See Res Adjudicata. Mutuality, 1 Gr. Ev. 524. See System ; Strong v. S. BBS INTEB ALIOS JUDICATA JfUI,- lum allis prsejudicium faciunt : Matters adjudged in a cause do not prejudice those who are not parties to it. 4 Gr. & Rud., 1 Jones Ev. 173, Res Adjudicata. See Gulling. BES IPSA rOQUITUB: The thing speats for itself. The largest resume of this maxim is in relation to Kearney v. L. R. R. L. C. 211, 3 Gr. & Rud. ; C v. York, L. C. 197, 3 Gr. & Rud. Personal examination of another. 41 L.R.A.(N.S.) 1071 ; Limitations of this maxim. 42 L.R.A. (N.S.) 90, n. Possession of the fruits of crime. R. v. Partridge, L. C. 190, 3 Gr. & Rud. Roberts Interstate, Employees, 22. RESISTING AN OFFICEE. 4 Gr. & Rud. See Arrest, Id. BES PEKIT DOMINO SUO: The destruc- tion of the thing is the loss of the owner. Tarling, L. C. 404 ; Dame, L. C. 308c. Id. This is an important maxim where property is destroyed before title passes ; or before delivery and acceptance. BESPONDEAT SUPEBIOB: Let the prin- cipal respond. 4 Gr. & Rud. McManus; Fitzsimmons, L. C. 384, 3 Gr. & Kud. 46 L.R.A. (N.S.) 976. BESPONsio r?,'rus non omno audi- tiu- : The answer of one witness shall not be heard at all. This rule is often applied in equity. See Phepo.n'derance op Pboof. BESTATING THE LAW. Ever since the days of Saint Paul there has been an idea among statesmen and rulers that a restatement of the law should be made. Hamilton in the Federalist suggests the necessity for it. Ulpian attempted it, but the Praetorian Guard cut short his work. Bacon followed and the British government was won away from him by the machinations of Coke. (See Chapter 1, 1 Gr. & Rud.) Many eodifiers have attempted it with resultant failure. The legislation in both England and America to simplify the law has not borne the fruit hoped for. The Code in New York is noth- TEXT-llYDEX 235 Restating, etc. — ing less than chaos. (See Clark v. Dillon and its discussions by New York lawyers; Literature.) The ef- forts of Justinian have proved almost ix, blight. In his day he aroused his subjects by having the maxims (Pre- scriptive Constitution) changed so as to augment his prerogatives. However he did something for the maxims. Nothing he did for the law stands out in bolder relief than his recognition of the maxims. What his compila- tions did for a few principles like Juris proscepta sunt hwc and other fundamental conceptions have worn best; most of his effort was too vast and confusing. The few great prin- ciples were smothered. Had he clear- ly stated and made prominent a score of the greatest, the organic, the major principles of the law and briefly showed their interactions, and thus their logic and philosophy he would have greatly added to the value of his stupendous output, which has not done for jurisprudence what com- mercialism has advertised for it. It was a gift to Feudalism during the early stage of its growth and develop- ment. From the "Magnum opus" of antiquity nothing could be found or picked out to save the law from that drift that has borne it on dovsii into the condition prophesied by Bacon. As the work of Blackstone and his fol- lowers have been obseerated and up- held by the blackletter author, so has been Justinian. Lawyers are notori- ous parrots as is shown in relation to Sergeant Williams and his followers. They believe anything that is pressed by a powerful advertising bureau. This fact is learned from the arts of book agents who turn publishers and audaciously claim that some Di- gest or Abridgment, or Cyc gotten up by them is a "complete and sys- tematic restatement of the whole body of the law along broad and scientific lines." For this they offer nothing else than a revision of a preceding output but which they claim and ad- vertise as something else entirely. These volumes are introduced by lines of appreciation to the agent for his gi-eat, original and individualistic elaboration for which everything is said and claimed. The clamors and pretenses that the preceding Cyc or Digest was wrong but that at last the exactly proper one has come which upon examination is found to be a clumsy revision of the preceding. Restating, etc. — which if no "restatement" then its successor — the revision cannot be. ( See Observations, Abatement.) The bluff and bluster of costumers hailing the incoming fashion and ridiculing the outgoing are greatly surpassed by the book factories and their advertisements which in a government that protects the law student would refuse the dis- tribution of palpably mendacious and mischievous advertisements and decep- tive matter. In other relations we refer to the ways of publishers and the stupidity and apathy of the legal profession. (See Literature; Feudal Lawyer; Story; Unfair Trade.) If the fundamentals of the law are but few (1 C. J. Cyc. 958-959; 2 Id. 129S-Alterum) then should not these be gathered in the most con- densed way and their paraphrases and interactions demonstrated? See the discussion of Idem agens. §§ 509- 522, Equity In Procedure; Alterum; In pari; In jure; Verba fortius; Quis, quid. Now can these principles be impressively set and learned upon a vast alphabetical plan through scores of volumes wherein only a vague hint is made of the fundamental character of the principle? See the Cyc above referred to. A dictionary may contain the words from which a higli philosophy can be written, but, can a dictionary be a high philosophy? The serious, earnest student has many questions to struggle over. See Literature; In pari; Al- terum; Abatement; Logic; Procedure. A Eestatement of the Law must gather and present the major, the organic maxims or fundamental prin- ciples and impress these and show their interactions with all the branches of the law. It must be something else than a concordance of these principles and a mere parroted reference to these as the primary and great, upon which all laws depend. (See Alterum. 2 C. J. Cyc 1295; Quis, quid.) If the principles of Equity bear the same re- lation to the old law that the new Testament does to the old, then how stands Blackstone who confesses that he did not understand Equity. If he did not then he did not under- stand the maxims and therefore the heart and vitals of Justinian's "Mag- num opus." Every student should in- quire into the worth of Blackstone and his followers. (See §§ 15-20, 1 Gr. & Rud. ; Maine's Ancient law. Pollock's Introduction, xvii, xix, inter 236 THE LAW KESTATED Restating, etc. — alia ) . Lawyers should not be awed by great reputations and incompetent judges conducting government. They should be something else than parrots and timid followers of the blind, the audacious and most mischievous, those who have befogged and misled. Anent the above observations com- pare the Restatement offered by the preceding sections supported by this Text-Index. See the above maxims, also In prcesentia majoris. RESTRAINT OF MARRIAGE. Scott V. Tyler; 6 Rul. C. L. 174. Marriage, 4 Brit. R. C. RESTRAINT OF TRADE. Contracts. Mitchel V. Reynolds, L. C. 373, 3 Gr. & Eufl. ; Mallan v. May, L. C. 374, Id. 6 Rul. Cas. L. 190, See Monopoly. RETAINER. See Quod remedio: RETREATING TO THE WAI,!,. See Self UeJense, 4 Gi'. & Eud. S. v. Gardner, 2 L.R.A.(N.S.) 49. RETROACTIVE LAWS. 4 Gr. & Rud. Branson v. Kinzie, L. C. 238, 3 Gr. & Rud. Ex post facto, RETROSPECTIVE DECISIONS. 4 Gr. & Rud. RETURN: RETURN OF PROCESS. May be impeacbed. Hauswirth v. Sullioan, L. C. 51, 3 Gr. & Rud. See Equity. REVBBSAl OF JUDGMENT. 4 Gr. & Rud. REVIEW. 4 Gr. & Rud. Office o£ Talz, 110 Va. 467. J^oM, 40 App. Cas. D. C. 64. REVOCATION. Of offer to contract. Cooke V. Vxley, L. C. 321, 3 Gr. & Rud. REWARD. Offer as a contract. Williams V. Carwardine, L. C. 322, 3 Gr. & Rud ; 46 L.R.A.(N.S.) 662. REX NON DEBET ESSE SUB HOMINE sed sub deo et lege : The King should not be under the authority of man, but o£ God and the law. See Qui jussii: Judicial officers have absolute immunity for their acts, although out of the law. Pettibone v. Nichols, 4 Gr. & Rud. Lange 1). Benedict, L. C. 159, 3 Gr. & Rud. See Hex non potest peccare; Princips. REX NON POTEST PECCARE: The King can do no wrong. See Rex non debet. The King — Crown — State — Sover- eignty — The Commonwealth Govern- ment can do no wrong. In America the Judiciary have absolute immunity for anything it does. See Qui jussu; Lange V. Benedict, L. C. 159, 3 Gr. & Rud. In New York Supreme judges are made statutory generals in the army. 8. ex rel. Welch v. Bard, 209 N. Y. 304. So we see that there is becoming no practical distinction between the ju- diciary and executives; the division of state power cannot be longer said to exist. The courts have already gone to the limit in upholding executives. See Mostyn, Pettihone v. Nichols, 4 Gr. & Rud. It seems fair to say that all officers have full immunity for any thing they may do. Only a few judges have spoken firmly to restrain them as Mansfield did in Mostyn v. Rex non, etc. — Fadrigas, L. C. 274, 3 Gr. & Rud.; also in Milligan's Case, 4 Gr. & Rud. Generally the inferior court must keep within its record. But still if it transcends its record and the law it can find justification in the late cases. The discussions around Crepps v. Bur- den, L. C. 113, 3 Gr. & Rud. are fore- boding; and those around Lamge, are equally unsatisfactory. See Qui jus- su: Generally whatever remedy can be picked out of the condition afforded by the cases costs more than it will come to. Plain talk about these prin- ciples are overdue. In relation to Lange we give many hints of the state of the law. Res est misera ubi jus est vagum et incertum. The state cannot be sued without its consent, 134 A. S. 88, cases. Hop- kins 221 U. S. 636; 35 L.R.A.(N.S.) 243-251, n.; Porto Rico, 227 U. S. 270. See 4 Gr. & Rud; also Equity. Rex non potest peccare is founded on public policy: Salus populi: It is the basis of exempting municipal and quasi municipal corporations from lia- bility in many relations. Hill v. Bos- ton, 2 Gr. & Rud.; Rochester White Lead Works u. Rochester. White v. County of Bond; Weet v. Trustees of Brockport. A phase of the principle is involved in cases exempting Water Companies from liability for failing to supply water to extinguish fires. Al- so allowing an injured person to sue upon a bond given the public for the proper performance of the discharge of duty. See Privity. To sum up it seems due to say that wherever an argument can be made that plausibly involves the maxims above mentioned that relief becomes precarious. Opposition to the ways of operating a government finds little judicial favor. Bacon learned that. And the impeachment of Governor Sulzer in New York also illustrates. See Nemo debet esse judex. REX NUMQUAM MORITUR: The King never dies. 4 Gr. & Rud. R. V. CASES. R. stands for Rex, King or Queen — Eegina. For brevity we com- bine these cases. Generally they intro- duce the same kind of matter. Leading English Cases Nest Fol- low : Retina and Rex Cases. These cases are epitomized from the Grounds and Rudiments of Law, also Equity in Pro- cedure. In the first work they are am- plified together with extended citation of authorities. If further amplifica- tion is desired also additional cases Mews English Case Law should be con- sulted. These cases will be found in the table in the 16tb Volume together with references to the other volumes. Thus the following cases will be a key and a TEXT-INDEX 237 R. V. Cases. — guide to extended gatherings of cases and discussions. Most all of these cases are cited in Bishop's Worlis. The references to American cases will liltewise aid investigation through table of cases cited. K. V. ALIEN, 12 Cox, C. C. 193. 4 Gr. & Rud. Intent is no element In statutory Crime. C. v. Mash; R. v. Bishop; B. v. Brawn; R. v. Hague; P. v. Roby, i Gr. & Rud., 25 L.R.A.(N.S.) 661, citing R. v. Tolson; R. v. Bishop; R. v. Prince, 220 TJ. S. 559. Actus non facit: is tlie iirst great principle of criminal law. We have classed it as one of the trio of leading principles. Ignorantia legis: and Qui pri~ mum peccat: being the others. The ablest discussion of Actus will be found in P. V. Roby, and 25 L.R.A.(N.S.) 661, above cited. Ignorantia legis: R. v. Levett (Levett's Case) 4 Gr. & Rud. R. v. Esop. Qui primum peccat: is largely involved in the law of Self Defense. C. v. Selfridge, 2 Gr. & Rud. ; U. S. v. Holmes, 4 Gr. & Rud. See Actus non facit: also R. v, Micheal. B. v. AI.MON, 5 Burr. 2686, 1 L. C. C. (B. & H.), 145-157, n. Cited Bish. C. L. Criminal acts of agent ; Respondeat su- perior. When the principal is liable crim- inally for the acts of the agent. O. v. Sacks, 43 L.R.A.(N.S.) 1-44, ext. n. R. V. ASHWELL, 16 Cox 1, 8 R. C. 81. Larceny ; What is a falsing ; By bailee. R. V. Wyne. General resumi of larceny, R. V. Thvrborn. 4 Gr. & Rud. B. V. BAtDBY, 5 Cox, C. C. 523, 2 L. C. (B. & H.) 484-630, n. Confessions. 6 Am. St. 238-252, ext. n. ; 18 L.R.A.(N.S.) 768-874 (general r6sum€). B. V. BAENABD, 7 C. P. 784. False Pre- tences : Uniform donned to deceive is a false pretence. Means of deception im- material : the law loolfs at substance not form. R. V. Bryan; Allegans ; Posito. B. V. BIBMINGHAM ETC. B. B. 3 Q. B. 223 (B. & H. L. C.) 4 Gr. & End.; 2 Eng. R. C. 232, 45 L,R.A.(N.S.) 344. Corporations ; Their capacity to commit crime. R. v. Ot. North, d C. R. R., 212 U. S. 481-499. R. V. Almon. Qui sentit: B. T. BISHOP, 14 Cox, C. C. 404, stated 25 L.R.A.(N.S.) 664, Cited, sec. 18, Re- statement. S. P. R. V. Allen, supra. Ac- tus non. B. V. BOWEEMAN, 17 Cox, C. C. 151. Participation In crime is sufficient. Res ipsa loquitur; Noscitur a sociis; Taclfing and Collateral intent : R. v. Latimer, 2 L.R.A.(N.S.) 719; R. v. Serue. B. v. BBADI-AUGH, 14 Cox 68, revers- ing 2 Q. B. Div. 569, 3 Am. Cr. Rep. 464. The state demands that a "cause of action" be stated and this demand cannot be stipulated or consented away. Campbell v. Consalus. Interest reipubli- ecee: Alterum: Pacta privata. In pari: Res inter alios. And it matters not if the case is obscene, scandalous, coarse and vulgar. Edgar, 9 Mo. 758. In prwsentia majoris: See Rosen v. U. S. L. C. 92, 3 Gr. & Rud. Aider by verdict; limitations of this rule. R. V. Wheatley, L. C. 19, 3 Gr. & Rud. Rushton V. Aspinall, L. C. 5, 3 Gr. & Rud. ; R. V. Goldsmith, L. C. 20, 3 Gr. & Rud. ; R. V. Perrott. Limitation of liberal construction. B. v. Waters; B. v. Waverton; Dobson v. Campbell. Ut res: Rushton v. Aspinall. Alder ; Minnesota; Nalle ; Pierce Co., 236 U. S. 287 ; Quis, Quid; Ut res. B. V. BEAWN, 1 C. & K. 144. Bigamy. Second marriage may be void. See Slmfer v. S. B. v. BBYAN, 7 Cox, C. C. 312, 5 Crim. Def. 134. False pretenses ; Caveat emp- tor; Simplex commendatio non obligat; R. V. Wheatley. B. V. BUCKMASTEE, 16 Cox, C. C. 339, 4 Gr. & Rud. Larceny by triclf. De- frese v. S. 3 Heisli. 53 ; S. v. Ryan. B. V. BUEGESS, 15 Cox, C. C. 779, 3 Crlm. Def. 779. Compounding offenses. In pari: Keir v. Leeman, 6 Q. B. 301, B. & H. ti. C. Crimes. Jones v. Rice, Id.; 29 A. D. 612. Duty to Inform on crim- inals. Balus. B. v. CABTEB, 15 Cox, C. C. 448. Col- lateral facts to prove guilt. Res inter alios: Res ipsa loquitur: Manifesto: See Phbsumptions. B. v. Partridge, L. C. 190, 3 Gr. & Rud. B. T. CLAEENCB, 16 Cox, C. C. 511, 23 A. & E. Am. Ann. Cases, 64. Assault, Husband not guilty of, for communicating to wife a venereal disease. Hegarty v. Shine. B. v. COLMNS, 9 Cox, C. C. 497, 2 B. & H. L. C. 478, 3 Crim. Def. 701. Im- possibility to commit crime ; Attempt to commit an impossible crime not indict- able. Fabula non judicium. R. v. Qood- hall (attempts). B. V. CONDE, 10 Cox, C. C. 547. Crime defined ; Omission to perform duty is ; Parent liable for starving child. R. v. Morby, 1 Brit. R. C. 749 ; R. v. Falking- ham; R. v. Smith. Duty to join posse comitatas, R v. Sherlock. Preventing one from talilng care of himself, R. v. Smith. B. V. CONEY, 15 Cox, C. C. 46, 3 Crim. Def. 789-S18n. Principals and accesso- ries ; Alders and abettors ; Spies. Nosci- tur a sociis. See ISnticement. B. V. CBtJNDEN, 2 Camp. 89. Public morals protected. Reynolds v. U. 8. Al- terum: Salus. B. v. CEUSE, 2 Crim. Def. 765, 19 L.R.A. 359. Drunlienness is no defense. Sui- cide as a crime ; Observations. E. V. CCMPTON, 5 Q. B. Div. 341. Eight to resist unlawful arrest. See Necessi- tas: 4 Gr. & Bud. E. V. DB BANKS, 15 Cox 450. Larceny by bailee. B. V. DOHEBTY, 16 Cox, C. C. 306. Statement of prisoner ; Right to make. Wright v. Tatham. See Confessions ; Nemo tenetur. B. V. DUDLEY AND STEPHENS {The Mignionette Case), 15 Cox. C. C. 6:^4, 5 Cr. R. 559, 106 A. S. 725. Necessity and compulsion as a defense. One can- not contract away his life. Alterum: Salus: S. v. Beck. Necessitas: In pari. E. V. EDWAEDS, 13 Cox, C. C. 384. 4 Gr. & Rud. Larceny ; Abandonment by the owner. The thing stolen must be of some value. De minimis: One must be wronged. Fabula. B. v. ELLIS, 6 B. & C. 145, 2 Lead Cr. Cas. (B. & H.) 18-25, L. C. 213b, 3 Gr. 6 Rud. System how proved ; Collateral facts to prove. Res inter alios: Strong V. 8.; P. V. Molineux, 62 L.R.A. 193-357 (largest rfeumg). B. V. ESDAILE, 1 F. & F. 213, 4 Gr. & Rud. Pleading ; Bill of particulars. B. V. ESOP, 7 C. & P. 456. Cited § 18, Restatement. Ignorantia legis neminem excusat. A native of Bagdad must take notice of the laws of England. Every one is presumed to know the law. P. V. Robey; Levett's Case. Ignorance of facts will excuse Levett's Case. 238 THE LAW RESTATED B. V. FALKINGHAM, L. K. 1 C. C. 222. Omission of duty to an infant ; Abandon- ment of. R. V. Conde; R. v. Waters, 2 Brit. R. C. 697. Omission of duty is a crime. R. v. Morby. B. V. rEATHEBSTONB, 6 Cox, C. C. 376, 2 Lead. Cr. Cas. (B. & H.) 362. Larceny ; Possession gained by an adulteress by lier paramour is no defense. B. T. FRANCIS, 12 Cox, C. C. 612, Col- lateral facts to prove intent. B. v. Ellis; Res inter alios. B. V. GARDNER, 5 Cr. Def. 287, 2 L. Cr, C. (B. & H.) 163. False Pretense; Inducement wben too remote. R. v. Mar- tin; R. V. McGi-ath; P. v. Richards, 51 A. D. 75-94 (Conspiracy; 2 Gr. & End.). In jure. B. v. GIBSON, 16 Cox, C. C. 181, L. C. 272, 3 Gr. & Rud. Province of court and jury ; S. v. Croteau, L. C. 271 : Sparf V. n. S. 3 Gr. & Eud. Ad guastionem. Incompetent evidence though cumulative is material error. Mornrngstar. Original documents are the l)est evidence. Only these can be used to refresh the memory. The best evidence required. B. V. GOLDSMITH, 12 Cox, C. C. 479, L. C. 20, 3 Gr. & Eud., et seg. Aider by verdict. Pleadings when cured by waiver. See Rtishton, L. .5, 3 Gr. & Bud. Limits of liberal rules of construction. Dohson, L. C. 232a, 3 Gr. & Rud. ; R. v. Perrott; Moore v. C. L. C. 21. 3 Gr. & Rud. ; McKown, 77 Mo. 463 ; R. v. Wa- ters; R. V. Waverton, L. C. 70, 71, 3 Gr. & Rud. VerJ)a fortius: Omnia prw- sumuntur rite: Jackson v. Peslced ; V. S. V. Cruilcshank, L. C. 232, 3 Gr. & Rud. Criminal pleadings are not more strict than are civil. (§§ 1-3, Restatement.) Rushton ; Stor.y. Quis, guid: Be non. The Trilogy of Procedure applies to all pleading. Its rules are universal, con- stitutional principles. Consider this trio of principles and then the above cases. Also Campljell v. Consalus and Clark v. Dillon. The most strict pleading known to the' law are the equitable exceptions to the statute of frauds. Lester v. Fox- croft, L. C. 341, 3 Gr. & Rud. In crimi- nal law it is perjury. See Garrett. R. V. GOODHALI,, 1 Den. C. C. 187. At- tempts constitute a crime. In jure: Con- tra: R. V. Collins, ante. Fahula: R. v. Edwards, ante. Impossibility to commit rape no defense. Bunt v. S. — Arii. — , L.E.A.1913B, 131. R. v. GRANT, 5 B. & A. 27. 9 R. C. 86. Defamation ; Truth is no defense in crim- inal libel. § 313, 1 Gr. & Rud. There is no right to publish everything because it is true. 84 A. S. 124, 4 Gr. & Rud. (liberty of the press). Salu.'i. B. v. GREAT NORTH OF ENGLAND R. R. 9 Q. B. .315, 1 L. C. C. (B. & H.) 166. Ciorporations ; Criminal liability of. Procedure. 45 L.R.A.(N.S.) 344; Union Colliery v. R. 31 Can. S. C. 81, 2 Brit. E. C. 222-254n ; R. v. Birmingham. B. v. GREY, 4 P. & F. 73, 4 Gr. & Rud. Public morals protected. R. v. Crundcn; Reynolds v. V. S. Salus: Alterum. B. V. GROSVENOR, 1 Wils. 18, 95 Bng. Reprint, 468. 2 Strange, 1193, 93 Eng. Reprint, 1120. Cited 1 Bish. C. L. 246, 458. Refusal to accept office is indictalile. Bro. Max. 13. Salus. Necessiias. R V. HAGUE, 9 Cox, C. C. 412. Persona- tion of voter. Intent is immaterial. R. V. Allen. Actus non. R. v. HANDS, 16 Cox, C. C. 188. Lar- ceny ; Stealing from an automaton. The law looks at substance not form. ReceA- itur a placitls. E. V. HAZLETON, 13 Cox. C. C. False pretenses ; Obtaining money by worthless checks. See False Pretenses, 2 Gr. & Eud. E. V. HILL, 5 Cox C C. 259: 2 L. C. 204, (B. & H.) Competency of ctiildren to testify. R. V. HOPLBY, 2 F. & P. 204. Homicide from correction. Immoderate chastise- ment. School master's right to punish. 1 Brit. R. C. 718. See Teachee. Stephens 1!. Myers, 4 Gr. & Rud. Words are no assault; Cooling time; Heat of passion. C. v. Selfridge, 2 Gr. & Eud. E. v. HUGHES, 1 F. & F. 726, Omission of duty is a crime. R. v. Conde; Falking- ham : Morty ; R. v. Smith. E. V. HULL (R. V. RAMPTON), 1 L. C. (B. & H.) -50. Homicide; Gross negli- gence supplies malice. R. v. Lowe; R. v. Longbottom. Actus non facit: Ignorantia legis: One is presumed to intend, etc. "SguiJ) Case :" Qui primum. Automobile : Recliless use of, criminal. 33 L.R.A.(N.S.) 403. Tacking and collateral intent. Spies: L.E.A.(N.S.) 1154. C. v. Moore, 3 L.R.A. (X.S.) 719. In jure. B. V. INHABITANTS OF ALL SAINTS (of Worcester) 2 L. C. (B. & H.) 266. Wife' may testify for husband. Necessi- tas. R. V. JENNISON, 9 Cox, C. C. 138, 4 Gr. & Rud. False pretenses ; When prom- issory ; Pretense must be of an existing fact. False representations when action- able. R. V. yiiiflor. Caveat emptor is involred in criminal laic. R. r. Wheatley, L. C. 19, 3 Gr. & Rud. ; L. C. 374-386, 3 Gr. & Rud. A tort may arise out of a contract. Thomas v. Winchester, In jure: R. v. Johnson. The contract, the tort and the crime are often closely related. Notes to R. v. Wheatley, 1 L. C. (B. & H.) ; P. S. v. Holmes; Waters v. Pierce Oil Co. B. V. JOHNSON, 2 L. C. C. (B. & H.), 432. Deceit and fraud when indictable R. V. -Wheatley, L. C. 19, 3 Gr. & Rud.; R. V. Jenni.son; R. v. Naylor. R. M. KEYN, 13 Cox, C. C. 403, L. C. 171, 3 Gir. & Eud. Venue of crime ; It is local not transitory. C. v. MaCloon. 100 A. D. 89-110, L. C. 172, 3 Gr. & Rud. ; R. V. Lciris : Mostun v. Fabrigas. R. V. KILIIA3I, 11 Cox, C. C. 561, False pretenses; Hiring by means of, is no crime. R. r. Iln~lctnn : R. r. Jennison. R. V. LATIiMER, 16 Cox, C. C. 70. I-Iomicide ; Aiming at one and wounding another ; Tacking and collateral intent Spies V. P. 6 L.R.A. (N.S.) 1154; C. v. Moore; S. v. Smith ("the intent goes with the bullet"). See Intent; 2 Gr. & Eud. Actus non: Sclf-Defonsc, 4 Gr. & Rud. In in re. R. V. LEVETT (LEVETT'S CASE), Homicide : Ignorance of facts, excuse. Ignorantia facti: Actus non facit: 43 L.R.A,(N.S.) 167. Ignorantia legis ncminem excusat. R «. Esop: P. V. Rohcij. E. V. LEWIS. 2 L. C. (B. & H.), 298. L. C. 173, 3 Gr. & Eud. Venue of crime. It is local. See R. v. Keyn; C. v. Ma- Cloon. B. v. LONGBOTTOM, 3 Cox, C. C. 4:!9, 1 Lead Cr. C. (B. & H.) 66 ; R. v. Lowe; Hull; Pym; Salmon, 33 L.R.A.(NS) 403, 45 L.R.A. (N.S.) 403. Criminal negligence supplies malice. B. T. LOWE, 4 Cox, C. C. 4491, Lead. Cr. Cas. (B. & H.) 60 ; R. v. Longbottom; B V. Hull. ' TEXT-INDEX 239 B. T. MA^'NINO. 6 Cox, C. C. 86, 4 Gr. & Rud. Accessories before and after the fact. Spies V. P.; 1 Bish. C. L. 660-708; C. V. Moore; R. v. Latimer (tacking and collateral intent). Qui primum pcccat. R. V. MARTIN, 10 Cox. C. C. 383. Fal.se pretense ; Misrepresentation when too re- mote. B. V. Gardner; R. v. Pym. In jure: R. v. Johnson; R. r. Wheatley. B. T. McGBATH, 11 Cox, C. C. 347. Lar- ceny ; Robliery ; Distinctions. Obtaining property by false pretenses is larceny ; if by fright it is robbery. E. V. MICHEAI,, 9 C. c& P. 336. Innocent agent not liable for crime. Administer- ing a toxic as a nurse does not make her liable. An innocent person is protected by the prescriptive constitution. In prw- sentia majoris: Actus non facit. Statutes can not change this. Juries would refuse to convict. One imparting a contagion not knowing he had it is not liable. B. v. MIDDIiETON, L. E. 2 C. C. E. 38. Larceny : Obtaining money by trick is. R. V. Tidesu-ell (1905), 2 K. B. 273, 1 Brit. R. C. 1003. E. V. Minis, 10 Clark & F. 534. Mar- riage contract must be solemnized by the proper ceremony. R. V. MIL,I-S, Dears. & Bell, 203. False pretense ; Prosecutrix must be really de- ceived. R. V. Edvmrds ; Fahula. B. v. MORBT, 15 Cox, C. C. 35. 1 Brit. R. C. 749. Omission of duty is a crime. R. V. Conde; Hughes; Falkingham. Neglect to provide a doctor is no de- fense in case of homicide. R. v. Pym. Necessaries ; Medical treatment ; Re- ligious belief. R. v. Lewis, 6 Ont. L. R. 132, 1 Brit. R. C. 732, 36 L.R.A.(N.S.) 633. Parent must bury his child if he has the means. 7?. v. Vaiin, 2 Den. C. C. 325, Temp. & Mew. 632, 2 Brit. R. C. 697 ; R. V. Smitli. B. v. NAYLOB, 10 Cox, C. C. 149. False pretense : Representing that another per- son wanted it and getting possession of it is deceit. P. v. Johnson, 12 Johns. 292, 4 A. R. 76. cited 2 Bish, C. L. 410. 441 ; Cheating, 3 Gr. Ev. 84-8S, 10 L.R.A. ?.ns. 4 Gr. & Rud. ; R. l\ Jennison ; R. v. John- son. B. V. NEGtTS, 4 Crim. Def. 892, 4 Gr. & Rud. Embezzlement as a crime. Ele- ments. R. V. O'BRIEN, 15 Cox, C. C. 29, L. C. 75, 3 Gr. & Rud. Former jeopardy ; Per- son acquitted of receiving stolen gonrls may afterward be indicted for stealing the same goods. C. v. Roh)i, 12 Pick. 496, L. C. 74, 3 Gr. & Rud. ; Ouedel v. P. 43 HI. 226, L. C, 74a, 3 Gr. & Rud. riendinns essential for protection. 3 Gr. Bv. 35, 36. The above cases indicate why certainty is essential. R. v. Ooldsmith. And the civil cases are equally so. L. C. 25-30, 3 Gr. & Rud. Vicksbnrg v. Henson. See Res Adjudicata. Interest E. v. ORTois^, 14 Cox. C. C. 226. Presence at a prize fight ; Participation in, pre- sumed, R. V. Bowerman. Res ipsa lo- quitur; Noscitur. B. V. OWEN. 4 C. & P. 236. Infants; Their liability for crime. R. v. York: Godfrey v. S. 70 A. D. 494, 2 Gr. & Rud. Actus non. „ E. V. OXFOBD, 2 Crim. Def. 219, L. C, 200, 3 Gr. & Rud. Insanity as a defense to crime. Actus non fnrit: McNachten's Case, L. C. 195, 3 Gr. & Rud. Insanity as a defense to crime C. v. Rod- fjers, il A. D. 458, L. C. 199, 3 Gr. & Rud. Proof of. S. r. Mailer: TJ. S. v. Drew; Actus non facit. E. V. PARTRIDGE, 7 C. & P. 551, L. C. 190, 3 Gr. & Rud. The recent possession of the fruits of crime is prima facie evi- dence of guilt. Res iiisa loquitur: Mani- festa prolatione non indigent. 25 L.R.A. (N.S.) 561-574. Bill of sale will not re- pel presumption of. 39 L.R.A. 320. B. V. PEEBOTT. 8 R. C. 113. A crime must be juridically presented. The alle- gations are jurisdictional. R. v. Oold- smith; R. V. Wheatley: Moore v. C; R. V. Rowlands. Story: Rushton. Protedtion requires pleading. See R. v. O'Brien, supra. Be non apparcntitius: Verha fortius: Moore V. C. : Oarrctf. E. V. POOLE, 95 Eng. Reprint, 15. Prov- ince of court and jury. S. v. Croteav, L. C. 271, 3 Gr. & Rud. ; Sparf v. U. S. Ad QU(FStionem. B. V. POYNTON, 9 Cox, C. C. 249. Lar- ceny ; What is a taking. B. V. PRESTON, 5 Cox, C. C. 390, 2 L. C. (B. & H.) 417. Larceny; Finding lost property. R. v. Tharlorn. E. V. PEINCE, 13 Cox, C. C. 138. Cited, sec. 18, Restatement. Intent is no ele- ment in statutory crime. P. v. Rolen : Keller v. U. 8. 213 U. S. 138, 150, 2.j L.R.A. (N.S.) 661; cites R. v. Prince; R. V. Tolson; R. r. Booth. 12 Cox. r. C. 231, 25 L.R.A. (N.S.) 667, 34 L.R.A. (N.S.) 613, 614. Actus non facit. B. V. PYM, 1 Cox, C. C. 339. Death must follow in one year and a day, after the wound. It is immaterial that the wound was carelessly treated. Gross ignorance of a medical man supplies intent. 22 L.R.A. (N.S.) 841. In Jure. B. T. EBDMAN, 10 Cox, C. C. 159. Black- mail ; Threat to accuse of an infamous crime. Compounding of a felony. R, o. Burgess, 2 Gr. & Rud. E. T. RICE, 10 Cox, C. C. 155. Disor- derly house ; Public morals. R. v. Crun- den. B. V. RILEY, 16 Cox, C. C. 191, L. C. 213h, 3 Gr. & Rud. Evidence ; Answer to question of collateral facts conclusive ; important rule. 1 Gr. Ev. 448-450 ; 1 Wigm. 200, -"SOS, 621. Res inter alios. R. V. ROWLANDS, 5 Cox, C. C. 466, L. C. 234, 3 Gr. & Rud. Pleading ; In- dictment. R. V. Perrott : R. v. Wheatley; R. V. Goldsmith; V. S. v. Cruikshank. De non: R. v. O'Brien. B. V. SALMON, 14 Cox, C. C. 494. Homi- cide ; Criminal negligence supplies malice. R. V. Hull; Lonr/hottom; Lowe; Pym. B. V. SCAIFE, 17 A. & E. (N. S.) 237. Inadmissible deposition may be read il witness is kept away by the defendant. Nullus commodU7n. E. V. SEENE, 16 Cox. C. C. 311. Homi- cide ; Tacking and collateral intent. Spies V. P.; C. V. Moore; R. v. Botccrman; R. V. Salmon. Aiming at one and killing another, when murder. Larefield r. S. 34 Ark. 275, 36 A. R. 8. "The intent goes with the bul- let." S. r. ,'^mith. If one was justified in acting then he is excused. B. V. SHERLOCK, 10 Cox, C. C. 170. Posse comitatus ; Duty to join. Rolinson V. S. E. V. SMITH, 3 Cr. Def. 751. No duty to indigent relatives. Brothers and sis- ters owe no duty to each other ; and therefore it is no crime if they abandon each other. R. v. Conde; Hughes; Falk- inqham: Morly. See R. r. Tann, 2 Br. R.' C. 697. B. V. SMITH, 10 Cox, C. C. 82. Pre- venting one from protecting himself is a crime. Nullus commodum. 240 THE LAW KESTATED B. T. SOtOMONS, 17 Cox, C. C. 90. Lar- ceny ; False pretenses ; Distinction ; Pro- tection by former Jeopardy depends upon certain charges. R. v. Perrott; V. 8. v. Peren, L. C. 69, et seq., 3 Gr. & Rud. ; Huntsman v. S. L. C. 231, 3 Gr. & Rud., 3 Gr. Ev. 35, 36. See Res Adjudieata, also L. C. 25-30, 3 Gr. & Rud. The Trilogy of Procedure is the higher law and it must be respected. It cannot be stipulated away. Campbell v. Consalus. Pacta privata juri: Alterum non Iwdere; Salus. B. v. STBDMAN, Foster's Crown Law, 292. Homicide ; Cooling time ; Irresistible impulse. R. v. Hopley. See Self-Delense, 4 Gr. & Rud. B. V. THUBBOKN, 2 L. C. C. (B. & H.) 409-432, 5 Crim. Def. 424, 4 Gr. & Rud. Larceny ; Finding lost property ; Taking it with the animus furandi. S. v. Homes. Recent possession of the fruits of crime. R. V. Partridge^ supra. B. V. TOLFBEB, 2 Lead. Cr. C. (B. & H.), 358-362. Larceny ; Taking with the con- sent of an adulteress is. R. v. Feather- stone. A wife cannot steal from the hus- band but if she joins with a third person In the act then it is larceny. Partners cannot steal from, one another. But if one conspires with a third person then the taking is larceny. E. V. TOLSON, 16 Cox, C. C. 629. Cited, sec. 18, Restatement. Bigamy ; Ignorance of the existence of the spouse is no de- fense. One must know. R. v. Prince; R. V. Allen; P. v. Robey ; O. v. Mash, 7 Met. 472, 2 Gr. & Rud. Tolson cited P. V. Spoor, 235 111. 230, 25 L.R.A.(N.S.) 666. Actus non facit. Intent is no element in statutory crime. P. V. Rohey; 25 L.R.A.(N.S.) 661. But this rule meets with much objection and many exceptions are declared against it. Nei- ther decisions nor "Omnipotent Parlia- ments" can obliterate the major — the or- ganic maxims. In prwsentia majoris. B. V. TOBPBT, 12 Cox, C. C. 45. 4 Gr. & Rud. Coercion ; Doctrines ol. V. v. Heal, 6 A. D. 105, 1 Lead., Cr. C. (B. & H.) 81-84, 19 L.R.A. 359. See Necessi- tas; Necessity, 4 Gr. & Rud. E. T. TOWNLET, 12 Cox, C. C. 59. Lar- ceny ; Abandoned property ; Animals. Fixtures not a subject of larceny. Only personal property can be stolen. What are fixtures. Elwes v. Mawe, 2 Gr. & Rud. E. V. TWOSE, 14 Cox, C. C. 327, 4 Gr. & Rud. One exercising bona fide what h( supposed was his right ' commits vo crime. Actus non facit: R. v. Levett. B. V. TTIiEB, 8 C. & P. Compulsion and duress ; How regarded. Actus non facit: Vecessitas: R. v. Torpey, 4 Gr. & Rud. B. V, VANN, 2 Den. C. C. 325, 5 Cox, C. C. 379, 42 L.R.A. (N.S.) 212, 2 Br. R. C. 697 Omission of a duty is a crime. A parent must bury his child if he has the means. Lex non cogit ad impossi- bilia: R. v. Morby. B. V. VANDEECOMB, 1 Lead. Cr. Cas. (B. & H.) 519-542, L. C. 73, 3 Gr. & Rud. The Trilogy of Procedure vindi- cated ; For it is manifest that pleadings are essential for protection from the angle of former jeopardy. R. v. O'Brien, ante. And this is equally so in all kinds of cases. Story ; Rushton, L. C. 25-30, 3 Gr. & Rud. ; also 69 Id. E. V. VANTANTILI,©, 4 M. & S. 73, 105 Eng. Reprint 762. 16 R. R. 389, stated, 45 L.R.A. (N.S.) 580-581. Spreading a contagion is a crime. E. V. VATJX, 1 Lead. Cr. C. (B. & H.) 513, L. C. 72, et seq., 3 Gr. & Rud., 76 Eng. Reprint, 992. Former jeopardy : Record must be pleaded. 2 Bish. Cr. Proc. 914- 915. S. P., R. V. Tandercomb, 4 Gr. & Rud., also Equity In Procedure, T 569. The Trilogy of Procedure vindicated. The record must be pleaded. This means the mandatory record not the statutory record. The latter has nothing to do with Res Adjudieata or Former Jeopardy. And so the lawyer should have technical knowledge of these two records. But judges declaim or write opinions from the bench that the Bar is ignorant as to these distinctions. PennowfsTcy. The distinctions are indicated in Windsor L. C. 1, et seq., 3 Gr. & Rud. The man- datory record is dictated by the Trilogy of Procedure. Rules of Res Adjudieata, the Trilogy of Procedure, the mandatory record of the General Demurrer, also of "Due Process of Law" all have interac- tions and while the names are variant still they are all closely related. Bishop is right : In the criminal field we learn the civil and vice versa. "The law is an entirety." What the mandatory record must juridically present. See Gray v. P. 261 111. 140, 49 L.R.A. (N.S.) 1215. And this is the record and the matter that feeds a plea of estoppel of record. And in Walter, 250 111. 420, the court decides that a "cause of action," must appear in the right record, according to "what ought to be of record" etc. Vallandinghnm v. Ryan; Thomas v. P.; Fish v. Cleland. L. C. 12c, 3 Gr. & Rud. Works on criminal law introduce form- er jeopardy in a little, narrow, partitioned, individualized, and irrelative way tliat be- foss and narrows the vision and' feeds the fallacy that the criminal lawyer may know his little branch of the law and nothing of the other branches. That he may be ignorant of the Trilogy of Pro- cedure and of its logic and philosophv ; also of the major maxims — the organic principles of the law. Multitudo imperi- torem perdit curiam. We have shown that all the leading branches of the law involve the criminal law. B. V. WATEBS, 2 L. C. C. (B. & H.) 1.52, L. C. 71, 3 Gr. & Rud. Pleadings are jur- isdictional. Vicksbiirg v. Benson. They are required by Due Process of Law Standard Oil Co. v. Mo.; Windsor, L f 1, 3 Gr. & Rud. There must be plead- ings and they must be tested by the Trilogy of Procedure at the stage ot the general demurrer and at all of its correlatives. The tests are the same, at all stages and times. Rushtnn ; Story ; R. V. O'Brien; R. v. Rowlands; R. v. Perrott. Quis, quid, is the law in all sys- tems. One count may incorporate from another to avoid prolixity. Necessitas ; Conven- ience. Such defects are formal and may be waived. And they are waived if passed for an instant without apt and precise objection. Consensus: It is not the ver- dict that cures such objections. See Rush- ton: Story ; Clark v. West. B. v. WAVEBTON, 2 Lead. Cr. C. (B. & H.) 152, 117, E. R. 1396, 3 Gr. & Rud. Alder by verdict. This case illustrates the same principle In R. v. Waters, supra. These cases are burdened with one phase of Consensus tollit errorem. Among all of the American courts may be found eight kinds of Aider. In other relations we refer to them. See Rushton. Aider in the criminal case is the same thing TEXT-INDEX 241 R. V. Waverton. — in the civil case, also in equity. It is common to all systems. England and its provinces and the Fed- eral courts and eacn state and each Isind of procedure has its cluster of cases and these change nearly every decade. Jack- son V. Pesked, and Stennell v. Hogg, had all attention vfhen Chitty was at the bar. Then Sergeant Williams was authority for the proposition that substance could be waived. §§ 117, 118, 273, Equity In Pkoceddee. We often cite V. S. v. Cruik- shank, to the point. Story speaks of it correctly. See Story ; Oarrett. See also R, v, O'Brien; R. v. Perrott ; R. V. Solomons; R. v. Vandercomh ; R. v. Vawc, and R. v. 'Waters. It is a ques- tion of De non apparentilms on the one hand and Omnia prwsumuntur rite on the other hand. ITor the latter the courts have gone to the extent of Qvlling. It involves a phase of R. v. Wheatley, next to he mentioned. K. v. WHEATIiEY, 1 Lead. Cr. C. (B. & H.) 1-34, 3 Crim. Def. 100, L. C. 19, et seq., 3 Gr. & Rud. Cited, sees. 15, 19, Uestatement. A crime must be charged or the judgment will be arrested. The cause for the general demurrer cannot be waived. V. 8. v. Linn; V. 8. v. Cruik- shank, L. C. 232, 3 Gr. & Rud. Qitis, quid: De non appareniibus: R. v. Brad- laugh. Pleadings are jurisdictional. Nalle v. Oys- ter; Vicks'burg v. Benson. Oarrett. De non apparentibus: See this maxim cited anent the above cases. False pretenses; Caveat emptor. Let i^ buyer beware. Applied. If a buyer does not lools and judge for himself he is not deceived. In such case there is no crime and the sentence cannot stand. R. v. Bryan. B. V. WHTLET, Lead. Cr. C. (B. & H.) Evidence ; System. Res inter alios: R. V. Ellis; R. V. Francis. B. V. WYNE, 16 Cox, C. C. 231. Lar- ceny ; Bailee pawning a bailed thing is larceny. R. v. Ashwell. B. V. YOBK, 1 Lead. Cr. Cas. (B. & H.) 71-80, 4 Gr. & Rud. Infants ; their lia- bility for crime. R. v. Owen; Oases. EEYNOLDS v. STOCKTON, 140 U. S. 254, L. C. 79a, 3 Gr. & Rud. A court is bound by its record. The pleadings are jurisdictional. Munday v. Vail quoted and approved. Reynolds is followed in Vieksburg v. Benson. EEYNOLDS v. U. S. 98 U. S. 145. Pub- lic morals are protected. R. v. Crunden. BICE T. SHUTE, Sm. L, C. 8th Ed. Ex- contractu actions ; Joinder and Nonjoinder of parties. Robertson, 18 Johns. 459, 9 , A. D. 227. BICE V. TBAVIS. 216 III. 248, reversing 117 111. App. 644. Cited, sec. 20, Re- statement. Omnia prwsumuntur rite: ap- plies to inferior court records. Crogate's Case, Sm. L. V. denied. Crepps v. JJur- den, L. C. 113, 3 Gr. & Eud. ; Oreen Coun- ty Bonds. Bighmy v. P. EICKBBTSON v. KICHARDSON. 26 Cal. 149, L. C. 59, 3 Gr. & Rud. Service by publication Records strictly construed. ■'What ought to be of record, etc." Han- cock, 156 Cal. 804, 134 A. S. 177. Ver^a fortius, BIGGS V. PALMER, 5 L.R.A. 340. Cited, § 17, Restatement. Fundamental law gov- erns the construction of statutes. Oakley V. Aspintoall, L. C. 222, 3 Gr. & Rud. One murdering his devisor cannot inherit his property. Nullus commodum: Contra: 3 L.r"a.(N.S.) 726-733n. Homicide as af- fecting the devolution of property. 39 Riggs.— L.R.A. (N.S.) 1088. In prwsentia: Bollo- way, Okla. 50 L.R.A. (N.S.) 536 (denies Rlggs). EIOMT TO BEGIN. Actore non probante reus ahsolvitur. Bonnell, L. C. 185, 3 Gr, & Eud. ; cases cited. BIOX. 4 Gr. & Eud. BIPAEIAN. 4 Gr. & Rud. BISON V. FABB, 87 A. D. 52, L. C. 253, 3 Gr. & Rud. "Parliament is omnipo- tent." See Rings; Oakley v. Aspimoall, In prwsentia: Lex non. BOBBEBY. R. v. Grath, 2 Bish. C. B. 1156-1182. BOBEETS V. MOON, 5 T. R. 488, 101, English Reprint, 274. Statement of the case: Abatement and dilatory pleadings are strictly construed. Verba fortius. To illustrate : A plea of abatement of misnomer of the defendant beginning "and the said Richard sued by the name of Robert, is bad." For the defendant by introducing the word "said" has admitted himself to be the person sued. Admissions in a pleading are conclusive. Qui ponit fatetur. Boileau v. Rutlin, L. C. 43, 3 Gr. & Rud. The Code re- affirms this necessary rule to limit the issues and to narrow the proofs. See Issues ; Denials ; Dickson v. Cole, L. C. 34, 3 Gr. & Rud. Solemn judicial admissions are evidence. Oscanyan v. Winchester Arms Co. L. C. 41, 3 Gr. & Eud. See Admissions. Every word ' is given effect to. Expressio unius. See Woeds ; Every. Roberts v. Moon, should be considered with Riishton and Dovaston. Code cases are equally strict. Antisdel; Bowen v. Emmerson. A pleader pleads at Ms peril. Ignorantia Repugnant pleadings are void. Pain ex parte, L. C. 107, 3 Gr. & Rud. Formal matter, waiver of, is favored. In- terest reipublicw: § 53, 1 Gr. & Rud. ; L. C. 299, 3 Gr. & Rud. EOBINSON V, DAVIDSON, L. R. 6 Exph. 269, L. C. 3 Gr. & Rud. 309. Contract; Accident as an excuse for nonperform- ance. Actus Dei. Paradine. EOBINSON IN BE, 53 A. S. 596. Con- tempt; Inherent power of court to pun- ish for. Expressio eorum. EOBINSON V. BALEY, Sm. L. C. 8th Ed. ; L. C. 45, 3 Gr. & Rud. Cited, § 8, Restatement. Pleadings are the servitors of justice when not diverted for purposes of chicanery. See False and Sham Pleadings. Fabula: Nihil possumus: Ropes. EOBINSON V. B. E., 97 A. S. 156. Bas- tardus: A bastard has no heirs except those born of his body. Remedial statute strictly construed. EOBINSON V. S.. 44 A. S. 127-140, ext. n. Posse Comitatas. R. v. Sherlock. BOOHBSTEE WHITE tEAD CO. T. Rochester, 53 A. D. 316, n. Municipal corporations when liable tor neglifrencp in the construction of their works. See Hill V. Boston. „ .^„ BODGERS V. MO. P. B. E. 121 A. S. 416, 10 L,R.A.(N.S.) 658, 87 P. 887. Acci- dent when a defense for a carrier. Actus Dei: Scott v. Shepherd, quoted and ap- proved, against "floods of cases." BOB V. TBANMAEB. 2 Sm. L. C. 524. Deeds will be upheld if possible not de- f pa ted as in Shelley's Case. Ut res: Qui hwret. EOEHM V. HOBST, 178 U. S. 1-22. Re- nunciation of contract gives immediate 242 THE LAW RESTATED Roehm, etc. — right to sue. Frost v. Knight and lioch- ster V .Be Latour, practically reprinted. Cited and discussed : LaBatt's Mas. & Ser. 331. KOtLER T. ROLLER, 107 A. S. 103, 68 L.E.A. 893-895. Parent and cliild ; the latter cannot sue the parent for as- saults ; torts. Salus: R. v. Clarence. ROPER T. CliAY, IS Mo. 383, 59 A. D. 314, Stated, 273 Equity In Procedure, Aider by verdict ; liberal construction. "A title defectively stated and a defective title." Jackson v, Pesked; Stennell v. Hogg; Rushton v. Aspinall. Limits of liberal construction of records. Ut res. Goldham v. Edwards; Literature, quoting Tidd. ROPES V. JENERSON, 45 Fla. 556, 110 A. S. 79. Sworn answers are evidence as in Federal Practice. Vigel v. Hopp, 104 U. S. 441. BoUeau v. RutUn, 2 Bxch. 664, L. C. 43, 3 Gr. & Rud. All pleadings on principle are evidence. See RoHnson V. Raley. But the discussions over this question are like those over Crepps^ Qreen County Bonds, Rushton and most all other questions of procedure. The object of Pleadings is to limit issues and i' narrow proofs. The general issue and the general denial are inimical to a code. They are like the Conclusion of law. Rob- inson V. Raleif. ROSE V. HART, Sm. L. C. 8th Ed. Set- off ; Mutuality essential for. Contra : Sloan, 71 N. C. 356. Insolvency as an clement. See Set-off ; Equity. ROSE v. HIMELY, 4 Cranch, 269, stated in Thomas v. P. 111. It reaffirms Crock- ett V. Lee, 7 Wheat. 522 (allegata et pro- bata must correspond) Slacum v. Pom- ery. It is in accord with 'Nalle v. Oyster ; YicJcsburg; Reynolds v. Stockton. The Trilogy of Procedure vindicated. These cases sustain the view that the genera] demurrer cannot be waived. And it would seem that Thomas v. P. in Illinois ought to have settled something in that state before the experiments with the Munici- pal Court Act for Chicago. This was Anally construed in Walter, 250 111. 42u (.De non) . See Rushton; also Pomeroy. ROSE V. MILES, 1 M. & S. 101, 101 Eng. Reprint, 773. Nuisance; Remedies for. ROSE v. MILNE. Cited, § 21, Restate- ment. See lioss v. Milne. ROSEN V. V. S., 161 U. S. 29, L. C. 92, 3 Gr. & Rud., 227 U. S. 427. This case denies R. v. Bradlaugh. The Feder:il court is adopting some "new rules." Bak- er V. Warner, 231 U. S. 588, r,f):-\. ROSS V. HAVVKEYE INS. CO. 34 L.R.A. 466. An appellant cannot change his base on appeal. Garland v. Wholehaugh, 20 la. 271, L, C. 297, 3 Gr. & Riid. Con- sensus: Allegans: But this applies only lo waivable matter. It cloos not alfect the state. Altcritni: Res inter alios: L. C. 2(M);i-i;ii9, 3 (;r. & Itud. ROSS V. IIOrSTON. .19 A. D. 231, n. Agency ; rsotice io the n;;(*nt is notice to the principal. Qui scntit: Le Nere v. Le neve, L. C. 396, 3 Gr. & Rud. ROSS V. MILNE, 12 Leigh. (Va.) 204, 37 A. D. 636. Cited as Rose v. Milne, in S 21, Restatement. Limitations of statute of Jeofails. 8. P. Clark V. Billon. ROSSITER V. ROSSITER, 24 A. D. 62, 1 Am. Lead. Cases, (ioO-099, n. Agency : A special agent must obey instructions. Batty, 2 Johns. 48, 1 Am. L. C. 6."i3-6nn, ext. n. (agents general and special). E.c- pressio uniit.'^: And so inferior cottrts are viewed. WiUiams v. Peyton, L. C. 117, Rossiter, etc. — 3 Gr. & Rud. See these cases cited in Equity. ROUT. 4 Gr. & Rud. Sumner. ROW V. DAWSON, Wh. & Tud. L. C. Eq. Assignatus utitur jure auctoris. ROY V. HORSELBY, 25 A. R. 537, L. C. 288, 3 Gr. & Rud. Terms of court ; statutes providing for are strictly con- strued. Quis, quid. See Placitum. ROYALL EX PARTE, 117 U. S. 241, L. C. 244, 3 Gr. & Rud. One imprisoned under an unconstitutional law will be re- leased by writ of habeas corpus from the Federal courts. An unconstitutional law is no law. Kelly v. Bemis, 64 A. D. 50- 55, n. L. C. 285, 3 Gr. & Rud. Delay, acquiescence ; Effect. Kucker, 230 Pa. 528. KOYCE V. GUGGENHEIM, 8 A. R. 322, 4 Gr. & Rud. Landlord and tenant. Evic- tion of tenant stops rent. One cannot apportion a contract by his own wrong. J?on hwc; Bxpressio TJnius; Nullus com- modum. ROY N'EST LIB PER ASCUN STATUTE, si nil ne soit expressment nosme : The King is not bound by any statute, if he is not expressly named. Barron, L. C. 241, 3 Gr. & Rud. Guarantee Co. 224 U. S. 152. See Nullum tempus occurrit regi. RULES OF COURT. Must accord with the general laws. 129 A. S. 729-737, ext. n. RUMFORD MARKET CASE. See Keech v. Sandford, 2 Gr. & Rud. rUNKLE V. U. S. 122 V. S. 543. L. C. 120, 3 Gr. & End. Inferior and statu- tory courts must respect the Trilogy of Procedure. A court martial must have and keep a record and therefrom show the .iurisdictional facts. Crepps ; Rushton: Be non apparentibus: Facts must affirma- tively appear and not be left to argument or inference. Jurisdictional facts must appear from the proper record. "What ought to be of record must be proved by record and by the right record." Camp- bell V. Consalus. Jurisdictional facts in all courts must ap- pear with certainty. Story, S 10. quoted 47 Hughes' Equity ; Introductory Chapter. Rushton, next presented. RUSHTON V. ASPINALL, 1 Sm. L. C. 1444.5, Sth Ed. Reprinted in Bartlett V. Cro-Jer, 17 Jolms. 448, 8 A. D. 428. L. C. 5, 3 Gr. & Rud. Cited, Preface, also sees. 17, 24, Restatement. De non apparentibus : § 10, Story's Equity Pleading supported. Also R. r. Brad- laugh; R. V. Perrott; R. v. Wheatley; Rose V. Bimely. We have discussed Rushton so long in the usual way that naturally we seek to add some new thought or feature to attract the required attention. It certainly seems vain to gather and align the cases. So far as the cases are concerned they are simply every way. And the authors are no better. It is Story on the one hand and Thompson on the other hand. (See Pomeroy.) Verily the situation is properly characterized as judicial an- archy, and its literature the "legal ..Tungle," also of parrotings as we shall TEXT-INDEX 243 Rushton. — see. (See Williams, Sergecmt) ; also Literature; Restating tlie law. Feudalism has left many entangle- ments in our law. Many of them flow from the motto that "Parliament is omnipotent," Itison v. Farr, L. C. 253, 3 Gr. & Rud.; and another is that the law is local and fiat and is made by decisions. If either of these proposi- tions were true there has been enough legislation and decisions to well settle the rule in Rushton. But it really seems that the more cases we have the more unsettled the law becomes. See Pomeroy. In New York they range from Campbell v. Gonsalus to Baily v. Eomthal and Clark v. West. The contentions in Gulling well illustrate. In Illinois they have been experiment- ing with the Municipal Court of Chi- cago until the Feudal legislators have learned that The Trilogy of Procedure is still the law. Walter, 250 111. 420. See Equity In Procedure. It seems well to invite the student to return and look over the Trilogy of Procedure and its cognates and to determine for himself whether these are not a better "Datum Post," than are all the decisions that can be gath- ered anent the discussions of -Jackson V. Peslced, Stennell v. Hogg, Spieres V. Parker, Slacum v. Pomery, Rose V. Himely, Roper v. Clay and all the cognates of these cases. Along with all of them has come the view that the general demurrer can be waived and that out of irrelevant evidence cases and defenses can be carved and set up. Gtilling; Weher v. Lewis. There is something strange about the law and lawyers as may be gather- ed from the history of Moses, Lycur- gus, Solon, Saint Paul, Justinian, Coke, Bacon, Mansfield and the effort of Codifiers in America. We hinted at some of these facts in other rela- tions. See Pomeroy. Literature. Coke could not understand the Earl of Oxford's Case. (Morris on the devel- opment of law, 282-288; Chapter 1, 1 Gr. & Rud. Res Adjudicata.) Blackstone could not understand the "Squib Case;" all of the Feudal law- yers hated both Bacon and Mansfield; and Charles O'Conor and the Su- preme Court of the United States did not understand the Code. {McFaal.) See Literature. Not a single Feudal author has cited and explained the fundamental maxims referred to. Nor have the Code authors done any better. On Rushton. — the contrary they have led away from the maxims or denounced them. Story who did not make mistakes cited Quis, quid, but he wrote so high and terse that he has never been understood. His great sections are splendid Code and Practice Act rules. Nor has one introduced and explained the interac- tions of the rule in Rushton with the rules of Res Adjudicata, Collateral Attack and Due Process of Law. (See Sees. 1-26, Restatement.) Nor that Pleadings are jurisdictional and are vital to the force and eflfeet of a judgment. Jfalle v. Oyster, Ticks- burg V. Benson; Palmer v. Humiston; and Milbra v. Steel Co. The latter case cites Mondel, L. C. 77, 3 Gr. & Rud. All these cases are excellent Code cases. And they all vindicate the Tril- ogy of Procedure. (See § 1 ante.) Had these facts been plainly stated then the Code would not have become a mystery shrouded in fog and mystifi- cation. Story. Rushton is a truly great case and marks the limits of liberal construc- tion, 2 Tidd's Prac. 919, 920; Litera- ture. It stands for the projiosition that if a "cause of action" can be picked out of the pleading at the stage of the- general demurrer that then the demurrer will be overruled. Ut res is the rule on general demur- rer; it is absurd to say that a more liberal rule will be applied at the stage of the motion in Arrest, or on Collateral Attack. Goldliam v. Ed- wards. But see Baker v. Warner, 232 U. S. 588, 593, cited and followed Washington Herald, 41 App. Cas. D. C. 338, 3 Bouv. Die. 3rd, Rawle Revision (1914) ed. title Pleading. And so it is that the general demurrer cannot be waived. North Carolina. "It will keep." Mallincrodt. It is the state's plea to the jurisdiction and any one even the amicus curiw may raise it. Mansfield or Story would sua sponte raise it. Garland v. Davis, 4 How. 431, L. C. 60, 3 Gr. & Rud. j( substan- tial pleadings cannot be waived — they are jurisdictional. But as to dila- tory or abatement pleadings these can be waived. Roberts v. Moon, ante; also L. C. 290a-299, 3 Gr. & Rud.; § 53, 1 Gr. & Rud. Formal matter is governed by Consensus tollit errorcm while matter of substance is governed by the Trilogy of Procedure and its cognates. There is a logic and a phil- osophy anent these matters that thi^ Feudal Lawyer and his followers could 244 THE LAW EESTATED Eushton. — never understand. Pennowfsky v. Coerver. They cannot understand the respective functions of the manda- tory and of the statutory records. This is proved by cases like Chilling where the decree vras carved out of ir- relevant evidence, also in Henry v. EilUard, 49 L.R.A.(N.S.) 1-44. This is the "theory-of-the-caae" doctrine. See Thompson. Neither Mansfield nor story, nor Justice Field ever held that the general demurrer can be v^aived. They confined Consensus tollit errorem to formal matter. Shutte. As to mat- ter of substance— tte state's concern — Interest reipublicce, they applied Quis quid: and Quod ah initio, Windsor, L. C. 1, 3 6r. & Eud. There is the con- tention of those who minimize quod ah initio, and of the "new" school who enlarge Consensus, to crowd the state — Rome out. This is good Feudal doctrine. They never respect the at- titude of government. To them the law is local and fiat; "parliament is omnipotent." The law is made at the capital of each Lord, or tribe or prov- ince. Consequently they never cite the Universal, Constitutional princi- ples in the language of all nations — Rome which they hated and finally overthrew. To cite- these maxims would destroy their claims. (See Pom- eroy.) Pleadings are servitors of justice and ought not be made instruments of chicane. Rohinson v. Raley. Now could they be put to a worse use than appears from Gulling? They are bar- riers of protection from abuse of pow- er-usurpation and the ways of a judicial hierarchy. But they were not in Rermsherger v. Britton, nor in S. V. Fasse. In 8. v. Muench the true functions of Pleadings are set out. A case like this ought end the "Theory of the Case." But that eu- phemism has become too well in- trenched "by our decisions" to be shak- en until the Federal Supreme Court sees its way to broadly define and en- force "Due Process of Law." The view that each state can have its own local and provincial kind is good Feudal doctrine. It is not Roman. Who plain- ly told the Scribes and Pharisees in Saint Paul's Trial what the "manner of the Romans" were? Herefrom can he picked out the Trilogy of Procedure. De more and its cognates. It is these that the Feudal Lawyer and his fol- lowers lead away from. For these he has filled the literature of the law Rushton. — with the jargon of judicial anarchy, and of its literature a "legal Jungle." Aider by verdict is the shibboleth with which the "new" school uphold bad pleadings. See Literature. Henry V. Hilliard, supra. In connection with this fallacy which only exists in the minds of those not instructed in the logic and the philosophy of the law the Feudal Lawyer gave his votar- ies an illustration which Sergeant Williams, Tidd, Chitty, Stephen, Gould and many of the Code authors and courts understand better than they do any Universal, Constitutional principle of Pleading. In Code discussions this supposed rule has been applied. Roper V. Clay, Stated § 273, Equity In Procedure. A verdict wires nothing of suhstance. (See Consensus; Litera- ture; Aider.) If it can cure one thing, it can cure all of suhstance and so pleadings would be reckoned from the verdict as in Chilling. From the ver- dict all that is seen is the Feudal doctrine. Prohatis extremis: Omnia prcesumuntur rite. This denies that Pleadings are jurisdictional. Mansfield stated that "a verdict will not mend the matter when the gist of the case is not laid in the declaration (or the bill. Story), but it will cure ambiguity (formal matter). And there is a strong case in print of an action for keeping a bull {Buxen- din V. Sharp, 2 Salk. 662,) 3 Id. 12; 91 Eng. Reprint, 564, 661; also in May v. Burdett where the scien- ter having been omitted was held bad after verdict." Notes Sm. L. C. And the same was held in Van Leuven v. Lyke, 1 N. Y. 515, 49 A. D. 346. L. C.14, 3 Gr. & Rud. (scienter must be alleged). We also further quote from the notes: "the principle which this case {Rushton) decided and which is commonly cited to establish; vis: that a verdict cures the statement of a title defectively stated (See Tib- hitts V. Jorke, 4 A. & E. 134), 111 E. R. 738, but not a defective title is learnedly discussed in the notes to Stennell v. Hogg, 1 Wm. Saund. 227 etc." In these notes is found Sergeant Williams' proposition that suhstance can be waived. He it was, who misled Tidd, Chitty, Stephen and all of their followers See § 117, Equity In Procedure. Not only is the rule about "aider by ver- dict" a fallacy but more; for this title of jargon is an absurdity as will next be shown. For this demon- TEXT-INDEX 245 Rushton. — stration we will take a late caae which brought great disappointment to good practitioners in North Carolina it would seem. Henry v. Hilliard, 44 L.R.A.{N.S.) 144. In Henry specific performance of an oral agreement was sought by the ven- dee of tico separate and distinct tracts of land. The vendee did not allege that he took possession of either tract under and in pursuance of the oral agreement (Lester v. iPoxcroft, L. C. 341, 3 Gr. & Rud. ) . Now here was no "cause of action" stated as to either tract. Here was a defective title. Now on the face of the record no ground for recovery was stated; it is like Gulling and other "theory-of- the case" cases, wherein the judg- ment or decree or sentence carries its implications of authority. As to them no longer need an authority be pleaded as in Res Adjudicata. They are free of the frets of pro- tection — of the tests of Ees Ad- judicata and of Due Process of Law. Now, in Henry, the bill showed two tracts but it did not show title to either. So far as the allegations went there could be no recovery of either. Halligan v. Frey, 49 L.R.A.(N.S.) 112- 120 citing Lester v. Foxcroft. It also appears that the evidence showed that possession was taken as required by law in that class of cases. But of course this evidence relating to the principal equity in such cases was irrelevant for the very plain reason that there were no allegations to which it referred. And accordingly the lower court decided the case for the defend- ant. But on appeal this decree was reversed for the reason it seems that the evidence showed that possession was taken as required by law of one of the tracts. So we see that here were tico titles in question and that one was good and the other was had. But here let us aSk if either was good so far as the allegations went? And would not the verdict apply to both alike ? One being a good and the other a bad title can it be said that the good title defectively stated was any better than the defective title ? So far as a juridical presentment went were they not loth equally bad? Each lacking the allegation of possession taken under and in pursuance of the contract was fatally defective. One was no better than the other. And Bo we say that juridically speaking "a defective title is no better than a Rushton. — title defectively stated." The titles were defectively stated and each title was defective according to Lester v. Foxcroft. Aider by verdict is at most a crude expression of a stage of the operation of Consensus tollit errorem. If a pleading has merely a formal defect, this is waived the instant it is passed and then it is gone forever. Rudd, 41 App. Cases, D. C. 358; See Litera- ture. It is not in suspension or abey- ance until the verdict or findings are returned. So Aider is exceedingly limited in its operation. It has not the all sweeping curative effect that may be inferred from its quite popular mention by careless courts and au- thors. It does not liave a retroactive effect and import by construction mat- ter of substance that is omitted and for want of which the pleading is subject to general demurrer. Hitch- cock V. Haight, L. C. 12, 3 Gr. & Rud. As used and applied by Sergeant Williams it has an all-curing opera- tion. See sees. 117, 118, Equity In Procedure. His view misled Tidd, Chitty, Stephen, Gould and almost all of the Code authors. On the other hand, are to be reck- oned, the Trilogy of Procedure, Mans- field, Kent, Story and the rules of the general demurrer. From all of these the student can investigate and judge for himself. See Quod ah initio. If a matter can be waived it is waived if passed without apt objec- tion. Roherts v. Moon; L. C. 290a- 299 ; 3 Gr. & Rud. ; consensus, §§ 178, 179, Equity In Procedure. But if it concern the state (Camp- hell V. Consalus), then it is substance and then it never can be waived. Al- terum: Res inter alios acta: Quod ah initio. It may be raised at all times, places and stages. It ipay be raised on Collateral Attack, Res Ad- judicata and Due Process of Law. Windsor v. McVeigh, L. C. 1, 3 Gr. & Rud.; L. C. 290o, 3 Gr. & Rud. Vadikin v. Soper, 1 Aikens, Vt. 287, 1 Am. Lead. Gas. 142-147, L. C. 11, 3 Gr. & Rud. S. v. Perkins, 88 Vt. 121. A matter that can be raised by mo- tion in Arrest is substance and this is never waived. The cause for the general demurrer cannot be waived. It mav be raised at all times, places and stages. § 10, Story Eq. Pleading, 47, Equity; Campbell v. Consalus; Clark V. Dillon. An illustration of a, defective title (cause of action), appears in Camp- 246 THE LAW RESTATED Kushton. — bell V. Consalas where the pleadings were stipulated away, also in Van Leuven v. Lytce where the scienter of the hog was not alleged; also in Bow- en V. Emmerson, also in Antisdel v. R. R. Co. which is like Dovaston v. Payne. These are cases involving Ver- ba fortius accippiuntur contra profer- entem; Clark V. Dillon. An illustration of a title (cause of action), defectively stated is found in Dobson V. Campbell, L. C. 232a, 3 Gr. & Rud. ; Emery v. Pease, 20 N. Y. 62 S. P. Wright v. Dodge, 48 111. 382 Baker v. Warner, 231 U. S. 588, 593 Sache v. Wallace; Jackson v. Pesked (its jargon is quoted in Roper v. Clay, also in sections 117, 118, 273, Equity In Procedure.) The "defective title" means the de- fective "cause of action" no more and no less. For plain direct expression confusing and mystifying jargon ought not have been introduced. It brought with it a hundred "Shelley" Cases that are a, "legal jungle." And finally we will add that a plead- ing that will not pass the general de- murrer must also fail at the stage of Collateral Attack, also to satisfy the tests of Res Adjudicata, and Due Proc- ess of Law. That the general demur- rer cannot be waived is a fundamental rule arising from the Trilogy of Pro- cedure — the major — the organic max- ims of the Prescriptive Constitution. And these rules are the same in all systems. Upon respect for them de- pend the logic and the philosophy of the law. They dictate the lesser rules. In prcesentia majoris cessat potentia minoris. Probata will not supply allegata. De non: Garrett. But it is held that an agreed statement of facts will add to and supplement the pleading. D. G. V. Lee, 35 App. Gas. D. C. 341. One of the worst snarls of the law involves Rushton. Story paraphrased this case in his § 10, Equity Plead- ing. Also Tidd, 2 Practice, 919, 920, quoted and followed in State Bk. v. W. V. Tel. Go. — N. M. — , L.R.A. 1915A, 120, 126-127 (a general de- murrer can be waived). Compare Story and Tidd. Note the difference between authors; the breadth and depth of Story's vision and the narrowness of Tidd who was hobbled by cases. The former wrote from the Rushton. — maxims, while the latter wrote from the cases. Anent Literature we quote Tidd; Chitty, Stephen, Gould and Pomeroy, followed the style and views of Tidd, whom we quote under the title Literature. Omission of a material allegation is fatal. North Carolina; Van Leuven V. Lyke, supra; Garrett; Slacum v. Pomery; McAllister v. Kuhn; Cragim V. Lovell, 109 U. S. 195-200, citing Slacum, and McAllister v. Kuhn is cited in Cragin; Minnesota. Comprehending the Trilogy of Pro- cedure will dispel that illusion. Waiver is just the same in Equity and at law, although there is no "verdict" in Equity procedure to sup- ply the pleadings if there be none. See Rushton. There is nothing more illogical and unphilosophical in all the law than Chitty's three kinds of Aider. For the fact is that there is just as much aider in an Equity case as there is in a law case. We often cite the Gulling Case as a dreadful example also Henry, 44 L.R.A. (N.S.) 1-44, and here we merely observe that they were Equity cases. Both of them are opposed to Story's sections also • the Trilogy of Procedure, also the plain language of the Code. Quis, quid: Cockerell, 50 L.R.A. (N.S.) 1. Dovaston v. Payne should be studied with Rushton. We refer to it rmder the title Feudal Lawyer. It was con- ducted by Sergeant Williams. BUSH V. BltOWN, 98 Mo. 48G. Variances countenanced. At the same time the Tril- ogy of Procedure is uplielrt. See B'lsh- ton, also Humphreys, 98 Mo. Davis v. Jacksonville Line. RIISSE1,T> V. MANN, 22 Cal. 132, L. C. 87, 3 Gr. & Rud. Jurisdictional facts must be pleaded and properly appear from the record in all cases. Statutory facts must be pleaded as in Rushton, Bartlett and liinyham, L. C. 5, 6, and 7, 3 Gr & Rud. De non is the rule. It applies to all courts. RUSSELL V. PLACE, 94 U. S. 606, L C 27, 3 Gr. & Eud. The rules of Res Ad- judicata and the Trilogy of Procedure .are identical in meaning. See L. C. 25-30, 3 Gr. & Rud. KUSTIN \. MERCHANT'S CO. 23 Colo 35, L. C. 134, 3 Gr. & Rud. Taxation de- pends upon a certain record. IvcrsUe, L. C. 46, 3 Gr. & Rud. See Laivreiwe r Fast, L. C. 134, 3 Gr. & Rud. "Wbat ought to be of record etc. Williams v Peyton, L. C. 116, 3 Gr. & Rud. Also in Equity. BTALL V. KOWLES, Wh. & Turl. X,. C. Equity. Assignatus utitur jure auctoris. Assignments in Equity. TEXT-Ii\'JJEX 247 SACHE V. WALLACE, 101 Minn. 169, lis A. S. 612, 11 L.R.A.(N.S.) 803, 11 A. & E. Ann. Cases, 358, 4 Gr. & Rud. Rushton, reaSarmed. Munday v. Vail quoted and followed. The Trilogy of Procedure vindicated in a very able and clear cut case. Palmer v. Humiston. Quis quid: Shutte v. Thompson. SAINT HELEN'S SMELTING CO. v. Tipping, 1 H. L. C. 642. Alterum: Sic ute Salus: 121 111. 635. A nuisance gains no prescriptive right. Nullum tempus. SALES. Essentials of. Tailing v. Baxter, et seq., 3 Gr. & Rud., 26 L.R.A.(N.S.) 1- 72 ; Auctions. Payne. L. C. 307, 3 Gr. & liud. 131 A. S. 462-503, n. Fraud : Caveat emptor: L. C. 374-384, 3 Gr. & Rud. A thief gives no title : Xemo dat: See Contract. SALISBURY V. HERCHENRODEB, 8 A. R. 354. Actus dei: A plea of accident must be free of negligence or fault — il- legality. See Necessitas: Fletcher v. Hy- lands. In jure. SALUS POPULI EST SUPBEMA LEX: That regard be had to the public welfare is the highest law. Cited, S 17, Restate- ment, 6 Rul. C. L. 187. This maxim is a part of Juris prwcepta: We often cite it with Alterum: See 4 Gr. & Rud. Also Equity in Procedure. The attitude of the state in Equity, Procedure, Contract, crime and construc- tion must be well comprehended. See In pari: Coram judice. Camphell v. Con- salus. SANBORN V. SANBORN, 7 Gray, 142, L. C. 61, 3 Gr. & Rud. A cause of action must exist when the suit is instituted. Quod ah initio: 4 Gr. & Rud. Also Equity in Procedure. Osborn. SANDERS V. POTTLITZER FRUIT CO., 43 A. S. 757. Contract when complete is not subject to ex parte modifications. See White v. Corlies, L. C. 303, 3 Gr. & Rud. Non hwc: Schuchardt v. Aliens. SANITT. O. V. York, 43 A. D. 937, n., L. C. 197, 3 Gr. & Rud. McNaghten's. SASPORTAS V. JENNINGS, 26 A. D. 377, 4 Gr. & Eud. Contract ; Fraud and duress. Ex dolo malo. SATISFACTION. See ACCORD. SAVACOOL T. BOUGHTEN, 21 A. D. 181, L. C. 164, 3 Gr. & Rud. Qui jussu: Regu- lar process justifies the executive oflBcer. .Tustlflcation how pleaded : J' Anson: L. r. !>1, 3 Gr. & Eud. SAVAGE V. FOSTER. 2 L. Bq. Cas. Wh. & Tud. Equitable Estoppel. Piclcard v. Sears; Horn v. Cole. SAWYER, EX PARTE, 124 TJ. S. 200. Trilogy of Procedure upheld. De non. SCANDAL. In Pleadings. 4 Gr. & Rud. If pertinent admissible. R. v. Bradlaugh. Contra: Rosen v. V. S.; 227 D. S. 4:27. SCHICK V. U. S. 195 U. S. 65. "All crimes" does not include misdemeanors. Lex non exacte. Right to trial by jury. Work V. S., L. C. 242, 3 Gr. & Rud. SCHOOL DISTRICT v. MERCER COUN- ty, 115 Pa. 559 ; 4 Gr. & Rud. Contract ; Statutory conditions precedent. A school teacher must have a certificate in order to bind the corporation. Ita lex: In pari. SCHUCHARDT v. ALLENS, 1 Wall. 359, 212 U. S. 449. Vendor cannot tack on additional terms to a completed contract. Sehuchardt, etc, — Sanders; Simplex: Caveat emptor; TJt res; Ad quwstiunem. SCIENTER. As to vicious animal. Rusl)- ton; Voji Leuren v. Lyke (it must be averred to make a '"cause of action" ) , 24 L.R.A. (N.S.) 458, n., what is necessary, Warrick, Neb. 51 L.E.A.(X.S.) 45. SCINTILL.. DAVENPORT, Sm. L. C. ; L. C. 342, 3 Gr. & Rud. Agents; Dis- closed and undisclosed. 39 L.R.A. (N.S.) 324. THORIiET V. KERRY, 4 Taunt. 355. De- famation ; Written words are more ac- tionable than if spoken. 4 Gr. & Rud. THORNBOROUGH v. BAKER, Wh. & Tud. L. C. Eq. Executor of mortgagee entitled to the money secured by mort- gage. THORNBOROUGH v. WHITACRE, 92 Eng. Reprint, 1164, L. C. 333, 3 Gr. & Rud. Contract ; Consideration when un- conscionable. Relief in equity. 6 R. C. L. 678. THORNILtT V. PRENTICE, 100 A. S. 317-354, ext. n. Idem sonans ; what is Wiebuld v. Herman, L. C. 98, 3 Gr. & Rud. THOROGOOD v. BRYAN, 8 C. B. 114. Negligence ; Imputed. See Tujf; Davies V. Mann, 2 Gr. & Rud. Waite v. R. R. 7 El. BI. & El. 728. Christopherson, — N. D. — , L.R.A.1915A, 761, Cases. See Imputed Negligence. THOU SHA1.T NOT BEAR FALSE WIT- ness. Nihil possumus. THREATENING LETTERS. See 4 Gr. & Rud. THREATS. 4 Gr. & Rud. THURSTON T. HANCOCK, 7 A. D. 57. Easements. 4 Gr. & End. TICKETS. Contracts of carriers. Time tables annex themselves. Le Blanche, 4 Gr. & Rud. Passenger must examine. 43 L.R.A. (N.S.) 584, n. Verba fortius applies to. TIDD, quoted and reviewed under titles Literature and Rushton. TII.DBN V. GREEN, 21 A. S. Casus omis- sus. TILDEN v. P. {P. I'. Tilden) 242 III 536, 134 A. S. 344. Repugnant Pleadings are void. Pain, L. C. 107, 3 Gr. & End. • 31 L.R.A. (N.S.) 215. TILTON V. R. R., 3 Saw. 22, L. C. 133, S iir. & Rud. S. P. Lawrence v. Fast. Assessment roll must bo certain in Taxa- tion. 35 L.R.A.(N.S.) 653. TIMBER. Deeds to. 128 A. S. 465-476, u. Sale of, gives incidental right to en- 262 THE LAW KESTATED Timber. — ter on and remove. 3 Brit. E. C. 859- 902, n., 12 Am. Ann. Cases 913, 46 L.R.A.(N.S.) 672, n. ; when title passes. 47 L.R.A.(N.S.) 876: cases. Accessorium. TIME. 4 Gr. & Rud. Computation of. Warren v. Slade. 9 A. D. 70, L. C. 243, 3 Gr. & Rud. Standard ot, 35 L.E.A. (N.S.) 610, n. TIME AND PLACE. 4 Gr. & Eud. TINKER T. B. B. 231 U. S. 681. Cited, § 9, Re-statement. A recovery must be Secundum allegata et probata. Heudecker, 81 N. Y. 296, cit- ing Tooker, 50 L.R.A.(N.S.) 14. TIPS. Servant's right to. 41 L.R.A. (N.S.) 1217, n. TITIiE. 4 Gr. & Rud. To a statute. Bohel V. P., 64 A. S. 64-107, ext. n. NigruTTi; Expressio unius ; C. v, R, R. — Ky. — , L.R.A.1915B, 1060. TITLE INSURANCE. 38 Cyc. 344-355. TOBBY V. BABBEB, 4 A. D. 326, 2 Am. L. C. 245-300, n. Accepting note of third person is not payment In tUe ab- sence of an express agreement. May surrender the note and sue on the origi- nal demand. 9 Mo. 53. 4 Gr. & Rud. Payment. 4 Gr. & Rud. TODD V. FLIGHT, 9 C. B. (N.S.) 377. Landlord and tenant ; Dangerous prem- ises. Shipley, 50 L.R.A. (N.S.) 301; In- dcmatir. Morony, 218 Mass. 50, 54 L.E.A. (N.S.) 387. Einthorn, 90 Ky. 731, L.E.A. 1915B, 98. TOOGOOD V. SPYEING, 1 Cr. M. & R. 181. Defamation ; Privileged communi- cation. Harrison; Eum. TOOKER V. AKNOCX, 76 N. T. 397. Cited, Preface; also §§ 7, 8, 10, 12, 24, 25, Restatement. A cause of action must be stated. It cannot be aided by subse- quent pleadings filed by the defendant. Florida Co. v. Bell, 176 XJ. S. 328, 329. Quod ah initio. We cite this case along with Campliell v. Consalus and Clark v. Dillon. This trio of cases should be mastered. They apply to all systems, al- though they arose under the Code. It is set out under Codes. Winn; Ut res. Omission of a material .allegation is a jurisdictional defect. Tooker; Cragin v. Ldvrll, 109 U. S. 194; Rushton v. As- pinall. Minnesota, 194 U. S. 48. TOOL CO. V. NORKIS, 2 Wall. 45, L. C. 365, 3 Gr. & Rud.; 33 L.E.A.(N.S.) 167. Lobbying contracts ; Agreements to in- fluence officials void. Trist, L. C. 214, 3 Gr. & Rud. ; Oscanyan, Id. 41. In pari. TORT. We classify this subject as one ot the six leading. Also assign to it Alterum: Volenti: and In jure: These followed out will lead to a great deal of instruclion. Infants may commit. Gil- .s'Off ; married women, see Husband axd Wife. Intent no element in. Mahan. Accidents excuse. Actus Dei: Volenti: Dnrics v. Mn.nt : Hcgarty. In jure: 30 A. S. SOIi-.sfn ; SquiJ] Case. Fletcher r. h'rflmds. A!;L'nts, McManus ; Enticing one to break a contract. Qiiinn v. Leathern: cnscs, 1 Itrit. R. C. 1-21. A tort may arise out of a contrjict. Thomas V. Winchester ; Langridge ; Winterhottom. Defamation, see Slander and Libel. Animals, Uay v. Burdett. Negligence ; RSsumS of. 4 Gr. & End., Malicious Acts, Id. Trilogy of. § 19, Restatement. TRADEMARKS. E(nnty will protect a tradename. 25 L.R.A. (N.S.) 73-93; also secrets, 133 A. S. 7G9, n. See Un- fair Teade. TRADING STAMP.S, 34 L.R.A.(N.S.) 4.''.3. TRANSITORY AND LOCAL ACTIONS. Mostyn, L. C. 274, 3 Gr. & Rud. Crimes and penal statutes are local. Whiiloic, contra: cases. See Venue. TKAPNALL T. McAFEE, 77 A. D. 152- 160, n. Attachment Bobds ; Liability on. Iniunction, 16 L.E.A. (N.S.) 49-77, n. TRAVELERS. 4 Gr. & Rud. Must ob- serve care. Siveeney. TRAVELER'S INS. CO. v. JONES, 12 A. S. 270, 40 L.R.A. 270, n.. Id. 432- 4.52, n. What is exposure to Danger, 36 A. S. 852-861. In jure. TRAVELING ON SUNDAY. Sutton V. Wauwatosa. TRAVERSE. See Denial. 48 L.K.A. 177- 210 (largest r^sum^). TREASON. 4 Gr. & Rud. TREATY. 4 Gr. & Eud. TRESPASS. See Tort. TRESPASSER. 4 Gr. & Eud. AT) initio: Six Carpenter's Case, L. C. 166, 3 Gr. & Rud. Acta exteriora. TRESPASSING ANIMALS. Aldrich V. Wright, 16 A. E. 339-371, 2 Gr. & Rud. May V. Burdett. Strict pleadings in cases of. Dovaston; Antisdel (Code). Van Leuven. TRESPASS TO TRY TITLE. 4 Gr. & Eud. TBEVIVAN v. LAWRENCE, Sm. L. C. L. C. 78, 3 Gr. & Eud. Res Adjudicata; The last estoppel binds. TRIAL. 4 Gr. & Eud. TRILOGIES OF THE LEADING SUB- jects. Equity. Juris preecepta sunt hwc ; Ubi jus; Regula pro lege, § 14, Eestatement. Procedure. De non apparentibus ; Frustra probatur; Verba fortius. §§ 1-13, Ee- statement. These can be picked out. Garrett, 235 U. S. 308. Introduced and discussed, §§ 1-27, Eestatement. Sup- port the Conserving Principles, §§ 10, 12, Eestatement. Are rules of Construc- tion, see Collateral Attack ; Res Ad- judicata. Are International law, § 11. Maxims of Procedure omitted in its elaboration, § 10, Eestatement. See Tiie- OET OF THE CASE. Verba fortius. The consequences of omitting the maxims are indicated by the discussions of Verba fortius, in the "theory-of-the-case" states. With nothing to lead and to guide tliev have drifted into judicial anarchy. See Literature ; Feudal Lawyer. Contract. Non hmc. ; Bx nudo pacta; In pari. §§ 15-17, Restatement. The or- ganic law of Contract are the maxims. MoMullen v. Huffman, § 17, Restate- ment. Crime. Actus non facit renm. ; Ignorantia legis.; Qui primum pcccat. § 18, Restate- ment. Tort. Alterum- non Imdere ; Volenti non fit injuria; in jure non remota. § 19 Restatement. Construction. Verba fortius; Alterum non lirdere; Interest reipublicw. % 20, Re- statement. See also Lex non exact'e non deflmt. Necessitas inducit privilegium • ( essante ratione legis crssat ipsa lex Expressio unius ; Expressio eorum ■ ifelius est peterc fontcs. Construction like Equity underlies the entire law 5 •''0 Rcstatenient. See §§ 1-20, Eestatement! hco the foregoing maxims in the Grounds and Rudiments. The student can look and determine lor himself whether or not he should ^i^*^, *'^?, maxims the attention commend- ed by Ulpian, Bacon, Mansfield, Hamil- ton Story Kent, Shaw and Stephen J. ,^^^''» ■ »# n ''"^^'^'^H? J^'^y ""^e commended in McMullen v. Hoffman, of which we ob- serve in § 17, Restatement. Every law- yer must admit that he must construe well. Now how can he when he is if- norant of such canons as Verba fortius and its cognates. By turning to this title it must appear to all that every TEXT-INDEX 263 Trilogies, etc. — lawyer should know a great TJniversal, Constitutional principle when lie sees It in ttie language of all nations. The fact that there is such a Universal rule so expressed ought to stimulate him to mas- ter it and know it when he sees it. If he will so learn it then he can easily understand cases like Leonard r. Pierce, 182 N. Y. 431, 1 L.R.A.(N.S.) 161, n. stated under the title Ut res; also from that case why each word inserted in a document must he given effect. Compre- hending that maxim and its cognates will show why, a pleading must be judged from its own four corners — why a state- ment of the '*cause of action" will upon general demurrer be judged from the face of the pleading and will not include the summons. (See note to Leonard v. Fierce, 1 L.R.A.(N.S.) 161). If the student will connectedly consider this case with First Nat. Bank, 153 N. Y. 163, 60 A. St. 601, he will see that something is laclfing. These cases in- volved the Trilogy of Procedure and the court might for sound instruction have said that the Code had nothing to do with these cases. With ability the court argued Interest reipu'blicw ut sit finis litium also Audi alteram partem, also De non avparenWbus also Verha fortius also the first rule of Evidence "What ought to be of record must be proved by record and by the right record." In an intro- ductory paragraph the court might have said that the law from of old was be- fore them for consideration as it did in Oakley v. Aspinwall L. C. 222, 3 Gr. & Rud. stated under the title Nemo debet esse judex. The Trilogy of Procedure can te picked out of Leonard and the Bank Case supra. Perception of this fact is far more instructive to the student than searching for cases. See Ut res. Conceding that Pleadings (and its In- separable subject Evidence) lie at the base of a sound knowledge of all branches of the law then let us ask what Is a lawyer's equipment who will tell you that it is axiomatic that the general demurrer cannot be waived but who cannot explain the rule. Now could this happen if Alterum was right- ly unfolded to him? If the Trilogy of Procedure was well introduced and com- mended could authors and courts stumble over first principles and ramble around as they do? (See Oulling and Its clus- ter of cases ; also observations under the title Ut res.; "Theory of the case"?) See the discussions of Verba fortius In New York — Clark v. Dillon also in Its cognate cases. The same phase of ques- tion is most prominent in Missouri (S. V. Muench). It is the question in Dovas- ton V. Payne; and in Aniisdel v. R. B. (Code, Wis.). Let the student look at these cases and consider them from the Trilogy of Procedure and see if he can not from both maxims and cases get a far better impression of the principles which must be familiarized as funda- mentals. Pleadings lie at the base of all branches ; Now is there a more important rule of Pleading or Evidence than Verba fortius f Now what case or cases have so presented It that it is comprehended? What score of cases will teach the above Trilogies as well as a fair consideration of these maxims when they are gath- ered and set out? Can we learn these maxims in the Federal cases from Slacum to Vicksiurg v. Henson and Garrett r or from New York cases from Bartlett v. Crosier on down to Knickerbocker? In Trilogies, etc. — connection with these cases other cases are cited. The student can inform him- self if only he will look. (See Chitty ; Stephen ; Pomeroy ; Literature Logic ; Feudal Lawyer). From these Trilogies he can look down into the bewilderment in the "jungle" below. (See Vt res.) The New York cases we cite will intro- duce to him the true situation if only he will look at them from the Prescrip- tive Constitution which the courts are constantly hinting at. (See Oakley v. Aspinwall; Knickerbocker; P. ex rel. Tuecd, 60 N. Y. 559, cited in Knicker- bocker. But the maxims are never cited. Instead the courts are burdened with notions of the Code. It is a staple and it handicaps. See In prwsentia. It being conceded that Pleading and its inseparable subject Evidence lie at the base of sound instruction of every branch of the law then it follows that the law must be viewed as an entirety and as Bishop contended. It is also conceded that Alterum- non Iwdere is the greatest maxim of the law and that more can be articulated around it than can be around any other maxim or principle. (See Juris prmcepta). Such being the conceded facts then it follows that all branches of the law must be articulated with respect to the great maxims. Whether or not the law can be restated may be judged from §§ 1- 26, Restatement. By following the maxims therein cited through the Text- Index will demonstrate that upon this plan the law can be restated from the maxims above set out ; also that the performance accords with prophecy . of ages that a few fundamentals can be set and gathered around which the en- tire body of the law can be written. That the student may judge of the grounds and reasons for the above ob- servations the above gathering of prin- ciples are offered, also their interac- tions. Herefrom he can judge of "a complete restatement of the entire body of the law along broad and scientific lines." (See title Restating the Law.) Who will deny that it is proper to ex- ploit Eguity from and in the lights of its maxims? Now If Equity maxims are beacon lights for that subject let us ask if the maxims of other leading sub- jects are not equally worthy? Why should not the maxims of Procedure be stated and explained in works on Plead- ing and Evidence? Suppose that works on Pleading had a page for stating and defining the Trilogy of Procedure would not such page be very instructive? If Professor Pomeroy had set out those maxims In connection with his §§ 506-608 (Code Remedies), what would he have added to his discussions? Is not a comprehension of those maxims a bar to the ravages of the "theory-of- the-case" doctrine? Were they compre- hended would a student be confronted with cases like Oulling and its cluster? What student can reconcile the New York cases above cited with Gulling? See Story ; Rusliton. TRIST V. CHILD, 21 Wall. 421, L. C. 214. 3 Gr. & Rud. Cited, §§ 16, 17, Restatement. Lobbying contracts, 121 A. S. 713-740, n. In pari: Tool Co. v. Norris, ante. TROVER. 4 Gr. & Eud. TRUE. Pleadings ought to be. Nihil pns- eumus: Graver, L. C. 102, 3 Gr. & Rud. Fabula: Repugnant Pleadings are void. Pain, L. C. 107, 3 Gr. & Rud. Tilden v. P.; Palmer v. Humiston. 264 THE LAW KESTATED TBUEMAN T. FBNTON, Sm. L. C. ; Con- tract ; Promise to pay debt barred by bankruptcy is valid. See notes to Lamp- leigh v. BratliwaAt, Sm. L. C. What is a sufficient promise. 38 L.E.A.(N.S.) 577, n., 6 K. C. L. 669. TRUSTS AND TRUSTEES. 4 Gr. & Rud. Idem agens. Keech; Mtchoud; 235 U. S. 119. Liability of one lor his cotrustee. Townley, Wh. & Tud. L. C. Bq. Brice V. Stokes, Id. 38 L.R.A.(N.S.) 1029. Oral evidence to prove. See Oral Evi- dence, 39 L.E.A.(N.S.) 906-930. TUCKER V. MOREIAND, 10 Pet. 58, 1 Am. L. C. 280-329, n. Stated sub. In- fants, 2 Gr. & Rud. Capacity of in- fants ex contractu and ex delicto. Craig V. Van Bebber, 18 A. S. 569-724, n. (the largest resume ; all the cases English and American reviewed) . TUFF T. WABMAN, 19 Rul. Cases, 194- 207, n. Negligence ; Comparative. One must minimize risks and avoid injuries if possible- Davies v. Mann; Alterum: Volenti: See Negligence^ 4 Gr. & Rud. V. P. R. B. V. Cappier. The attempt of statutes to make the employer the in- surer and the keeper of the employee, Is not meeting general acquiescence. TURKEY V. BARR, 75 la. 758. 4 Gr. & Rud. Judge majr usurp the functions of Turney, etc. — the jury and this error may be waived. See Coram judice. The division of state power ought to be respected. Cujus est in- stituere. See Work v. S. TURNTABI,E CASES. 44 L.R.A. 65; See cases sub Scott v. Shepherd. 4 Gr. & Rud., 46 L.R.A. (N.S.) 731. Children, care due to. UcDermott, 25 L.R.A. (N.S.) 717. Lynch v. Nurdin, sub Scott, 4 Gr. & Rud. Attractive nuisances to children. 38 L.R.A. (N.S.) 1173. TURPIS EST PARS QU^ NON CON- venit cum suo toto : That part Is bad which accords not with the whole. To illustrate : denials that are repugnant to affirmative pleas, are disregarded. Dick- son, L. C. 34, 3 Gr. & Rud. Pain, L. C. 107, 3 Gr. & Rud. Allegans; Posito. TURPITUDE. 4 Gr. & Rud. Ex dolo malo: In pari. TWTNE'S CASE, Sm. L. C. ; Fratidu- lent Conveyances ; Badges ot fraud ; Evi- dence ; Presumptions ; Effect of possession retained by the vendor. Delivery and acceptance. Shindler. TYLiEB V. POMEROY, 8 Allen, 480. 4 Gr. & Rud. Consummation of a contract. White V. Corlies, L. C. 303, 3 Gr. & Eud. Sanders, TEXT-INDEX 265 u BBI EADEM RATIO, IBI IDEM JttS: Like reason makes like law. 4 Gr. & Rud. This maxim accords with the ar- gument we make for the Trilogy oj; Procedure. If these principles are appli- cable to one system of reason then so they are to all. If they can be cited in Equity then so they can be in all other systems. See Story ; Codes. If parties cannot stipulate away plead- ings (Campbell v. Consalus), then they cannot by consent and acquiescence do so. Quando aliquid: Ilsley v. Nichols^ L. C. 169, 3 Gr. & Rud. UBI JUS IBI BEMEDItJM: There is no wrong without a remedy. Cited, § 14, Restatement. 4 Gr. & Rud. Ashhy v. White, L. C. 273, 3 Gr. & Rud. We classify this as one of the Trilogy of Equity. It expresses far more than several of those maxims usi 'y called maxims of Equity. See Eqditi ^n Proce- DnRB. UBI JUS INCEKTUM, IBI JUS NUI.- lum : Where the law is uncertain there is no law. Lex est misera: Nihil in lege: Minime mutanda. UI,TRA VIRES: See 4 Gr. & Rud. Mu- tual Guaranty, 70 Am. St. 149-180. R. R. cannot guarantee building of a sum- mer hotel. Vest, Md. R. R. 2 L.R.A. (N.S.) 887. UNCERTAINTY. See TJbl jus incertum. UNDUE INFIUENCE. Chesterfield v. Javsen. Wh. & Tud. I.. C. Eq., 2 Gr. & Rud. Buguenin v. Baseley, Id. ; Boord- man, 155 Wis. 566, 52 L.R.A.(N.S.) 476 (conveyance for future support). See At- torneys. 2 Gr. & Rud. ; In pari; 6 R. "C. L. 637. UNFAIR TRADE. Eight to enjoin one from entering the employment of a, competitor and taking to him the see- rets of the employer. 44 L.R.A. (N.S.) 63-68, n. Protection from. Rice & Co., 202 F. 155, 44 L.R.A. (N.S.) 1057, n. A competitor has no right to ap- propriate the symbols and unique de- signs of another and sell inferior goods under such signs and symbols. Re- ceditur a placitis; Advertising is an important incident in commerce and this incident ought to be protected. No one should be allowed to deceive the public, and certainly not a com- petitor by copying his designs and ideas. Hamilton Co., 216 F. 401. To illustrate: If the manufacturer of a razor put upon it a certain figure or brand then no competitor should be allowed to appropriate that same fig- ure or brand and under it advertise and sell a different article and cer- tainly not an inferior or adulterated article. This is deceiving the public and confounding the efforts of the originator of the design and idea. This is an injury. The differences of Unfair, etc. — the goods call for explanation, argu- ments and extra labor. Such detrac- tions from ones lawful plans and ideas ought to be restrained. Receditur a placitis: Alterum: Ubi jus ibi re- medium. The duty to truthfully ad- vertise should be enforced. It should not be said that advertisements de- ceive and injure if one believes them. Alterum. To illustrate: It ought not to be advertised that Thompson adopted and followed the rules of Story, Mansfield and Greenleaf and cited and respected them. This would deceive students. Multitudo. Adop- tion of names and insignia to deceive ought to be actionable. Benevolent, etc., 205 N. Y. 459, L.R.A. 1915B, 1074; Virtue, 123 Minn. 17, 54 L.R.A. (N.S.) 1179. Boni Judicis. To the commercial world the right to advertise is a valuable asset the right to which ought not be abused. To illustrate: To advertise "the best shoe in the world" which will not stand wearing in the wet for a single day without the heels and soles fall- ing off is in reality more than a pri- vate offense and such an abuse ought be restrained in all appropriate ways. Also to advertise that a forthcoming work is no revision of any other work when that is all it is, is deception that should be punished. Also to ad- vertise a work as an elementary law book when in truth and reality no fundamental principle can be found in it should be treated as a fraud and de- ception. Courts should protect com- merce. Receditur; TJbi Jus. In on relation is the right to adver- tise more abused than in the law book trade. Palpable reprints and revisions of works are heralded as entirely new and different works. Restatements along scientific lines are promised and advertised, which manifestly omit the fundamentals. See Maxims; Litera- ture; Restating the Law. UNIFORM. The laws should be. 4 Gr. & Rud. If the great underlying principles of the leading subjects were picked out and made prominent and tangible this would greatly simplify and advance the student. The most important are the most worthy. Immaterial details should be treated as mere incidents. If we would learn the river Rhine, we should first attend to the main stream and its 266 THE LAW KESTATED TJnifonn, — few chief tributaries. Its twelve tliousanfl tributaries and tbe marsh that it has made for itself in the North Sea should not be made most prominent. And so it is with the study of the law. See Preface (Datum Posts) 3 Gr. & Eud. Accordingly we regard the Trilogy of Procedure as above all other rules and principles. If it is well grasped and com- prehended then an systems of procedure will appear, related and quite uniform at least all but the "tbeory-of-the-case" system. It is not uniform as the de-' cisions that illustrate will show. VM jus incerium, iM jus nultum. UNION PACIFIC K. B. v. CAPPIEB, 69 L.R.A. 513. Negligence ; No duty is owing to trespassers. The law does not malse every man his brother's lieeper. Davies v. Mann, 2 Gr. & Eud. ; Tuff. Volenti. UNION PACIFIC B. R. v. DODGE COUN- ty, 9S U. S. 541. Contract; Voluntary payment; Cannot be recovered. Bilttie; Scott V. Ford ; Ignorantia. UNION TKUST CO. V. PRESTON, 112 A. S. 370. Statutes ; Construction. The Equities of a bona fide purchaser over- ride a statute. Lex non: In Prwsentia. UNITED STATES. 4 Gr. & Eud. U. S. BANK V. BANK, 5 Okla. 63. A judge being a debtor cahnot appoint a receiver for his creditor. § 511, Equity. Idem agens: Nemo deltet esse judex. U. S. T. BIGGS, 211 U. S. 507. FerSo fortius applies. TJ. S. v. Linn; Stephens V. Beal. U. S. v. BREWING CO., 203 111. 306. One cannot impeach his own witness. Al- legans: Falsus: 1 Gr. Ev. 463. U. S. COURTS. 4 Gr. & Eud. See Federal Procedure. Id. U. S. REPORTS. 4 Gr. & Eud. U. S. V. AMISTAD, THE (CINQUE'S case). 15 Pet. 518. Self-defense. One may slay a malefactor who is attempt- ing to commit a violent felony and to deprive one of his natural rights. V. 8. V. Holmes: cases. (Cinque was an Afri- can who killed the crew of the vessel carrying him to America to make a slave of him ; he was flnallv acquitted.) U. S. V. CASSIDY, 67 F. 698-783. Lar- gest r^sum^ of Conspiracy as a crime. Spies. .See Conspiracy. V. S. V. CRUIKSHANK, 92 U. S. 542, L. C. 232, 3 Gr. & Eud. This case vin- dicates the Trilogy of Procedure in a full and clear manner. This case is a cognate of RusMon. A crime (case) must alRrmatively appear. De non: Slacm : Nalle: Ouis. quid: Story. Omission of a material allegation cannot he waived. A court will sua sponte take notice of it at all times and stages. This rule applies to all systems, and to all courts, and to all cases. Craigin -v. r.ovell, 109 U. S. 94 ; Minnesota, 190 U. S 48-73 ; MoAlUster v. Kuhn, L. C. 3, 3 Gr. & Eud. : § 242, 1 Gr. & Eud. Van Leuven v. Lylce. An infli<-fment miifii 7jc certain to serve. Interest reiprittlicfr. U. S. Perez; U. S. V. CruiltSliank ; and this certainl.v cannot be waived. Quod ai initio. The language of Harlan J., In Minnesota is applicable in all systems. Pleadings are Jurisdic- tional. Barrett. They must be certain. Roherts v. Moon; Dovaston; Rushton ; Code cases are the same. Antisdel; Bowen v. Emmerson ; Ilobaclc o. Miller; Palmer v. Hiimiston. V. S. T. DREW, 5 Mas. (TJ. S.) 28, 1 Lead. Crim. Cas. (B. & H.) 131-145, n., 2 (Trim. Def. 54. Intent ; Drunkenness ; Delirium tremens. P. v. Rogers, 72 A. D. 484, L. C. 198, 3 Gr. & Eud., 36 L.E.A. 198. S. V. Cooley, — N. M. — , 52 L.E.A. (N.S.) 230, n. U. S. T. GOODING, 12 Wheat. 460, L. C. 202, 3 Gr. & Eud. Evidence ; Admissions. Res gest