Black's Law Dictionary, Eight Edition, Bryan A. Garner (West Group, 2004).

"COMMON-LAW PLEADING 3 (1327—1377) ,~ it has served each succeeding generation as an effective instrument in the Administration of Justice, and today is still very much alive, both as an Operating. System and as a guiding force in the recurring Waves of Reform designed to correct its abuses. For more than Six Centuries, it was the only Method of Pleading in the Common-Law Courts of England‖— King‗s Bench, ExcheqLondon 1906; 7th ed., London 1912; 14th ed., London 1952). casebooks~ Ames, A Selection of Cases on Pleading (let ed., Cambridge 1875; 2d ed., Cambridge 1905); Shipp and Daish, Cases Illustrating Common-Law Pleading (Chicago 1903); Keen, Cases on Pleading (Boston 1905); Sunderland, Cases on Common- Law Pleading (Chicago 1013); Lloyd, Cases on Civil Procedure (Indianapolis 1915); Scott, Cases and Other Authorities on Civil Procedure (Cambridge 1915); Whittier and Morgan, Cases on Common-Law Pleading (St Paul 1916); Cook and Hinton, Cases on Pleading at Common Law (Chicago 1923); Reppy, Cases on Pleaffing at Common Law (New York 1928); Maglfl, Cases on Clvii Procedure (St. Paul 1927); Lloyd, Cases on Pleading jn Actions at Law (Indianapolis 1927); Clark, Cases on Common-Law Pleading (Cincinnati 1931); Keigwin, Cases on Common-Law Pleading (1st ed., Rochester 1926; 2d ed., Rochester 1934); Cook and Hinton, Cases on Pleading at Common Law (revision of Part I, Common Law Actions) (Chicago 1940); AtkInson, Introduction to Pleading and Procedure (Columbia 1940); Scott and Simpson, Cases and other Materials on Judicial Remedies (Cambridge 1946); Scott and Simpson, Cases and Other Materials on Civil Procedure (Boston 1950); Reppy, Introduction to Civil Procedure (Buffalo 1954). ―In referring to the Improvement In the Science of Pleading, Sir Edward Coke declared: ‗In the Reign of Edward III (1327—1277) Pleadings grew to Perfection, both without lameness and curiosity; for then the Judges 

and Professors ofLaw were excellently learned, and then Knowledge of the Law flourished; the Serleants of the Law, &c. drew their own pleadings, and therefore [it was] truly said by Justice Thirning, in the Reign of Henry IV (1399— 1413) that in the time of Edward III the Law was in a higher degree than it had been any time before; for before that time the Manner of Pleading w~s but feeble, In comparison of that It was afterward In the Reign of the same KIng.‖ 2 Coke, Lit. tieton, 304b, LIb. 3, Cap. 0, ~ 534 (1st Am. from the 16th European ed. by Francis Hargrave and Charles Butler, PhIladelphia, 1812). ―uer and Common Pleas

—and for two hundred years it was the exclusive procedural device leading to the Trial of Legal Issues in the United States It was, however, subject to many defects, due largely to the fact that the entire English Procedural System had grown up in a patchwork fashion,3 while the constantly expanding Substantive Law was outgrowing the Forms of Action which gave it birth. In the latter part of the Eighteenth and early part of the Nineteenth Centuries, under the impetus of Bentharn‗s searing criticism of the existing System of Law in England,with its Courts, its Special Pleading, and its general atmosphere of Delay and Administrative Inefficiency, these restrictive influences be-caine clear to the people, a demand for Reform sprang up and the movement for the improvement of procedure slowly got under way, The impact of this development, strangely enough, first bore fruit in America in the State of Louisiana, with the framing of Livingston‗s Code of Practice ~ and the Penal Code in 1824, which latter was never adopted.~ This was followed in England by the adoption of the Rilary Rules in1834,6 and 3. ―The Remedial Part of the Law resembled a mass of patchwork, made up at intervals and by pIecemeal, withoutany preconceived plan or system, for the purpose of meeting the exigencies of the times by temporary expedientt‖" Walker‗s Introduction to American Law, Pt, VI, Lecture xxxv, 569 (11th Cd., Boston, 1905). ―Enacted by Louisiana in 1805. Livingston‗s Penal Code, which was a product of Intensive preparation, and was published in 1824, was never enacted Into Lair as such by the Legislature of Louisiana. Edward LIvingston was born in 1764 and died In 1836, or about six years after Field began his ProfessIonal Career. A native of New York, and a brother of Chancellor Robert It. Livingston, his Penal Code of Louisiana, which was published in 1824, Page 144 of 207

attracted great attention in England and on the Continent.‖ David Dudley Field Centenary Essays, 19 (EdIted by Reppy, New York, 1949). ―The Hilary Rules, designed to restore the ancient strict Common-Law theory as to the Scope of the BASIS OF MODERN REMEDIAL LAW in the United States by the New York Code of Procedure in 1848.~ Thereafter, in relatively quick succession, the English Parliament enacted the Common-Law Procedure Acts of 1852,8 1854, and 1860,10 and the Supreme Court of Judicature Acts of 1873 11 and 1875,12 now for the most part replaced by the Supreme Court of Judicature (Consolidation) Act of 1925.13 And in 1938 the Supreme Court of the United States made effective the New Federal Rules of Civil Procedure.14 In conse General Issue, were promulgated pursuant to the Law Amendment Act, 3 & 4 Wm. IV, c. 42, ~ 1 (1833). For the history and effect of the Iliiary Rules in England, see article by Holdsworth, The New Rules of Pleading of the Hilary Term, 1 Cam.L.J. 261 (1923); for the history and effect of the Hilary Rules in the Several States of the United States,‖ see, lieppy, The Ililary Rules and Their Effect on Negative and Affirmative Pleas under Modern Codes and Practice Acts, 6 N.Y.UL.Q.Rev. 95 (1929), 7-

――After careful consideration and amendment by the New York Legislature, the draft tot a proposed code was enacted into Law on April 12, 1548, N. Y.Laws 1848, c. 379, to become effective on July 1 of the same year. Written in the form of a Code Containing 391 Sections, it became known at once as the Code of Procedure or as the Field Code. This title was far too broad in scope as the Act related only to a small portion of the Adjective Law, and expressly retained the Old Common Law or Statutory Rule where not expressly abolished by the Code." Reppy, The Field Codification Concept, in the David Dudley Field Centenary Essays, 17, 33— 34 (Edited by Reppy, New York, 1949). 8.15 & 10 Vict. c. 76 (1852). 9-17 & 18 Vict. C. 125 (1854). it 23 & 24 Vict. c. 120 (1860). 36 & 37 Vict. c. 06 (1873). 12- 38 & 39 Viet, c- 77 (1875). 13. 15 & 10 Geo. V. e. 49 (1925). ―The Federal Rules were drafted by an Advisory Committee appointed by the Supreme Court under the authority of a Federal Statute enacted‖ In j034. Act of June 19, 1934, ii 651, ~ 1, 2; 48 Stat. 1064, 28 U.S.C.A, ~ 723b, fl3c.See, on the earlier phases of the struggle for Federal Procedural Reform, artide by Shelton, The Reform of Judicial Procedure, 1 Va,flRev. 89 (1913). ―For detailed Information concerning the adoptIon, background and drafting of the Federal Rules of CivIl Procedure, see Clark, Handbook of the Page 145 of 207

—but subsequent events have cast grave doubts on this conclusion, as the solemn and stubborn fact is that Common-Law Pleading still survives as the basis of our Modern Remedial Law.‗~ Select any individual and you will find that he is what he is today because of what his father and mother were yesterday; he cannot escape his ancestry, but must make his way through life with the physical, mental, moral and spiritual assets with which he was naturally endowed by the union of his parents. It is true that within certain limits he may seem to change with his environment, of code Pleading,‖ e.I,Eistory, Systems and Function of Pleading, 31—39 (24 Cd., St. Paul 1947). ―In this connection it should be recalled that progress in the Reform of Criminal Procedure has followed up and to some extent paralleled the Reform of the Civil Procedure which has been under way since 1848. In 1930 the American Law Institute issued its Code of Criminal Procedure, which has subsequently substantially influenced State Criminal Procedural Developments In the Several States, In 1941, pursuant to the rule-making authority granted to the Supreme Court by Congress, the AdvIsory Committee on Rules of Criminal Procedure was appointed by the Court, which published two Prellmiaary Drafts, with motes, and its Final Report to the Court in July. 1944. The rules suggested therein were adopted, with certain modifications, by the Court on December 26, 1944, to become effective on March 21, 1946. The Court also gave directions that the Rules be reported to Congress In accordance with the terms of the Enabling Act, 323 U.S. 821, 65 S.Ct. CLXXIV (1944).‖ See, also, Editorial, ―To Form a More Perfect Union‖, 32 A.B.A!. 90 (1940); Desslon, The New Federal Rules of Criminal Procedure, Part I, 55 Yale L.J. 694—714 (1946); Part II, 58 Yale L.J. 197—257 (1947). 15,

――While the New Rules have abolished the distinctIve Common-Law Forms, the essentIal and differentiating rules applicable to Pleading as established at Common Law still survive as a basis of Remedial Law. Minturn, S., In Ward v. Huff, 94 N-J.L. 81, 84, 109 A. 287, 288 (1920). COMMON-LAW PLEADING acquire a Page 146 of 207

better training, and contribute more to the community than did his forbears, but any advance or improvement he may make must be done within the limits of his ancestral background. And so it is with institutions such as the Law which, after all, are merely the product of joint individual effort. The Law is what It is today because of what the Law was yesterday; it cannot escape its ancestry, and it, too, must progress against the background of its history. Like the individual, so with the Common-Law System of Procedure, which we all proudiy claim as a priceless part of our Anglo-Saxon heritage, we may change, we may add to or take away those Parts of the System which have outgrown their usefulness, just as the Modern Common-Law Actions superseded the Old Real Actions 16 when they became archaic, but it is no more possible, in any realistic sense, to abolish the System in its entirety, with all its implications for both the past and the future, than it is for an individual to destroy his ancestry, or for mankind to abolish history or civilization.• Infinite damage has been done to the cause of legitimate Legal Reform, to the cause of 16, The old Real Actions fell under one of the heads of Blackstone‗s famous classification of Actions as Real, Personal and Mixed. The Real Actions were by far the most important during the early developmental period of the Common Law. Included therein were Writs of Right Proper and Writs in the Nature of Writs of Rigb~ such Writs, among others, as the Writ of Right de rationabili parte, the Writ of Advowson, the Writ of Dower, the Writ of Dower wide nihul Rabet, and the Writ of quare impedit. These actions were feudal In character and were concerned with disputes over land. Because of the technIcalities required Ia their Control and the length of tUne Involved in carrying their process through, these actions, along wIth those which fell under the other two heads, were gradually superseded by what are now known as the Eleven Modern Common-Law Personal Actions, as a result of evolutionary steps In the development of the Common Law. What had, In effect, long before occurred as a matter of practice, was officially recognized by the Real Property Limitation Act of 1883, 3 & 4 Wni. IV, e. 27, § 36, which swept aside the Real and Mixed Actions, with certain exceptions, effective December 31, 1834. Legal Education, at the expense of litigants, students of law, and the public welfare generally, by proclaiming the concept that all that has gone before in our Page 147 of 207

procedural ancestry should be regarded as obsolete and worthless,‗7 and is not to be considered in terms of Modem Pleading and Practice, aid in terms of Modern Legal Education

–Those who take this limited view have clearly confused the real merits of the Common-Law System with those portions of the System which were needlessly technical, thus overlooking the salient fact that it had developed many sound and enduring principles of legal procedure. They have also overlooked the fact that there is greater similarity in the essential principles underlying Pleading at Common Law, in Equity, under Modern Codes and Practice Acts, and even under the New Federal Rules of Civil Procedure now in effect in the Federal Courts, than is generally realized.‗8 17.‖ Sir Montague Crackeuthorpe, O.C., in an address to the American Bar Association, in reference to the utility of the study of Common-Law Pleading stated:"In the hands of those who understood it, the System of Common Law Pleading was infallible‖ iii ―attaining the purpose for which it existed. If all who brought Causes to Trial had possessed a proper acquaintance with this Branch of Law and a reasonable mental alertness, it would never have beer, hinted that Pleading was a means of turning the decision of a question from ‗the very Right of the Matter‗ to immaterial points."

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