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We think the court below erred in both particulars. In the first place there were sufficient allegations in the complaint to make a good cause of action in conversion, and what the idea of the pleader was when he drew the complaint was immaterial. If the allegations were sufficient to constitute a cause of action in conversion the plaintiff was entitled to have it treated as such by the court, and the fact that the court had no jurisdiction of the action of trespass upon the land in another state rendered the allegations respecting a cause of action in trespass merely surplusage, and, there being sufficient allegations aside from these to make the complaint one in conversion, it should have been so treated by the court. Swift v. James, 50 Wis. 540; Bieri v. Fonger, 139 Wis. 150; Morse v. Gilman, 16 Wis. 504; Manning v. School Dist., 124 Wis. 84; Franey v. Warner, 96 Wis. 222; Emerson v. Nash, 124 Wis. 369. Doubtless the complaint as originally drawn would have been subject to a motion to make more definite and certain or to strike out the surplus allegations, but no such motion was made and defendant answered on the merits. Hagenah v. Geffert, 73 Wis. 636; Phillips v. Carver, 99 Wis. 561.

Respondent relies upon Joseph Dessert L. Co. v. Wadleigh, 103 Wis. 318. It will be observed, however, that was an action brought for trespass upon land in Wisconsin, which action the court had jurisdiction of. Moreover the strict rule laid down there has not been followed by this court. In Bieri v. Fonger, supra, the court said (page 155):

"In the light of the very liberal rules for testing the sufficiency of pleadings and proceedings which have been declared in recent years and the progressive tendency to broaden the judicial vision as to the scope of sec. 2828, Stat. (1898),aforesaid, the criticism in Joseph Dessert L. Co. v. Wadleigh, supra, would hardly be made today. The general spirit of the decision as regards essentiality of technical accuracy in pleadings and necessity for a party to stand or fall, under all circumstances, by the particular cause of action he intended to plead, is not in strict harmony with the later-day expressions and decisions."

It was also within the power of the court to allow the amendment which plaintiff asked, setting out the conversion more definitely. The cause of action set up in the complaint was a tort action, whether for trespass or conversion, and the power of the court to change from

1 See Wis. Stat. (1898) $ 2600 (substantially the same as N. Y. Code Proc. $ 62, p. 147, supra), and § 2646 (providing that the complaint shall contain a "plain and concise statement of the facts constituting each cause of action”).

2 This section provided as follows: "The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect."

a cause of action in trespass to one in conversion, we think is clear. It follows that the court erred in sustaining the objection to any evidence under the complaint and also in refusing the amendment. By the Court. — The judgment below is reversed, and the cause

· remanded for further proceedings according to law.

1 The dissenting opinion of Barnes, J., is omitted.







SUPERIOR COURTS OF COMmon Law (1851) 11-14. We now arrive at that part of our duty which is by far the most difficult and anxious, the consideration of the subject of Pleading; upon which we regret to say that we have not found the uniformity of opinion which we could have desired among those to whom we submitted the suggestions we thought it right to circulate for consideration,

Before we proceed to consider the different views entertained on this subject, and to state the alterations which we deem necessary, it will be convenient that we should shortly state what is meant by the Pleadings in an action at law. They are written statements made by the plaintiff and defendant of their respective grounds of action and defence. The object is to ascertain what are the matters really in controversy between the parties, so as to avoid all discussion and inquiry on those which are not so, — thus simplifying the matter for the decision of the Judge or jury, and saving the parties unnecessary expense and trouble. To accomplish this object, the plaintiff in the first place is required to state the facts which constitute his cause of action. The defendant is required to answer, and in so doing is compelled, at his option, to take one of the following courses: either he denies the statement of the plaintiff; or, confessing it, avoids its effect by asserting some fresh fact; or, admitting the facts alleged, he denies the legal effect of them as contended for. In the second case put, the plaintiff will be under the like necessity, and will have to reply to the fresh matter of fact alleged by the defendant, subject to the same rule. In like manner, if

necessary, the defendant rejoins; and so the parties proceed till it is ascertained that there is some fact asserted by the one side and denied by the other, or that there is some proposition of law affirmed on the one hand and denied on the other. The questions so raised are called issues in fact or in law, as the case may be. The following example

1 Reread pp. 18–20, supra.

will afford a sufficient illustration of the system. Let us suppose that the plaintiff complains in his declaration of an assault by the defendant. If the defendant in his plea denies it, an issue in fact is at once raised; if, admitting the fact of the assault, he pleads that he committed it in self-defence, here, nothing being as yet denied, no issue would be raised. But, fresh matter being alleged, the plaintiff is called on to reply to it: if he denies the truth of the plea in his replication, the parties will be at issue; but he may admit the plea to be true, and say that he assaulted the defendant to protect his (the plaintiff's) goods from being carried away by the defendant: the defendant, again, may deny this, or say that the goods were on his land, and that he was in the course of removing them; again, the plaintiff may deny this, or may say that he had the defendant's licence to put them there, till at length one party will be compelled to deny the other's statement, and so an issue will be raised. Or, one of the parties may admit the truth of the other's statement, but deny its legal sufficiency as an answer: for instance, in the case put of a verbal licence being set up, the defendant might object to the plea on the ground that in law a licence for such a purpose should be by deed or in writing, and thus would arise an issue in law. So, in an action on a bill of exchange, the defendant may admit every statement of the plaintiff, but plead that time was given to some other party to the bill, whereby he, the defendant, was discharged. By these means clear and precise questions are evolved, and the parties know what are the points in dispute: for example, in the case first put, if the defendant simply denies the assault, the plaintiff knows that this is all that is in controversy; if the defendant pleads that he committed the assault in self-defence, and the plaintiff denies that, they both know that there is no other question between them. So in the case secondly put, the plaintiff has not to prove the drawing, accepting, or presenting of the bill, the defendant's handwriting to it, the several endorsements whereby the plaintiff becante entitled, or its dishonour. The defendant is to prove the fact which he has pleaded; if he fails to do so, the plaintiff is entitled to recover.

Such is the groundwork of the English System of Pleading. It is obvious that, there are many advantages in it; the parties are not taken by surprise, they know precisely what is in dispute, and the expense is saved which would otherwise be incurred in coming prepared to prove matters not intended to be controverted. Moreover, as, by the law of England, questions of fact are determined by a jury, and questions of law by the Court, it is essential, as far as possible, to keep those questions distinct, so that each may be referred to the proper tribunal. Such are the results effected by pleading, which, thus explained, appears not only not open to objection, but entitled to great admiration and praise for its simplicity and usefulness. This, however, is the bright side of the subject, and it cannot be denied that on a system so simple and sound in principle defects

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and abuses have been engrafted which have gone far to destroy its utility. This has arisen in great measure from an over-anxiety to ensure exact precision and certainty, and from the rigorous character of the rules introduced for the attainment of these objects. Some degree of strictness, no doubt, is necessary. The fraudulent litigant must be made to be clear; he must be prevented from being ambiguous and tricky; he must be brought to a question, and not allowed to mix up a variety of statements from which no one can ascertain the case upon which he relies, either in point of law or of fact. But unhappily the rules framed to prevent these mischiefs have been abused, and they and certain arbitrary regulations and forms have caused the existence of those objections to the practice of special pleading, the justice of which we thoroughly feel. ...

There is ... the authority of Lord Mansfield for saying, that the substantial rules of pleading "are founded on strong sense and the soundest and closest logic, and so appear when well understood and explained, though, by being misunderstood and misapplied, they are often used as instruments of chicane." We fully concur in these observations as to the merit of what may be termed the essential principles of the system; but it is equally certain that there now exists in the public and a large portion of the profession a strong dissatisfaction with pleading as at present practised. We think such dissatisfaction well founded, and that the defects by which the system is vitiated must be cut away with an unsparing hand.

Before, however, we address ourselves particularly to the defects complained of and the remedies which we propose, we must dispose of a preliminary question, namely, whether any pleadings or preparatory statements by the parties to a cause should be required. Some persons, irritated by the mischiefs which have followed from the abuse of technical rules, have proposed that parties should come into Court without any previous authentic information as to the complaint or answer. From this we wholly dissent. Such a mode of, or rather want of, procedure, may answer the purpose in a rude state of society, or in matters of very trilling moment, in which from the nature of the case the parties know beforehand the precise matter in dispute; but in a highly civilized state, where commercial transactions are numerous and complicated, it would lead to intolerable fraud, oppression, and expense; and we believe that it has never existed in the code of any civilized nation. Dishonest plaintiffs would make unfounded claims, the nature of which could not be ascertained by previous inquiry. The party summoned must either come prepared with all the witnesses who could depose to anything that had ever passed between him and the plaintiff, or must hear the complaint, and then be entitled to an adjournment to bring his witnesses at a future day. In the former case, great and unnecessary expense would be incurred, and frequently incurred with a view to oppression. In the latter case there would, in truth, be a notice given by word

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