couraged among us to-day by senseless and harmful attacks upon public policy as a ground and rudiment of law. These pernicious arguments pervade the air and are gratuitously scattered among students. Justinian protected his students from commercialism and quackery.

The interactions between res adjudicata and collateral attack, on the one hand, with pleadings on the other, growing out of the fact that the same principles underlie both, are nowhere suggested in these texts, as tests of correct pleading, by either Stephen, Chitty or Gould. Certainly the courts and authors of this generation have not understood them as asserting any such tests. Yet it is clear that the interests of the public demand the statement of “a cause of action," not merely to apprise the defendant, or the court, but that on collateral attack, it may be determined what, if anything, was litigated. If so, how can pleadings be waived, as is now contended by the editors of these works ?s

Indeed, Chitty himself expressly states that a reply may be waived; and this has misled others and encouraged them to advocate the "theory of the case."

The writer is unable to pick out of Stephens a good definition of pleadings-one that will cover their whole scope and pur

developed out of it, took rise in a note of Serjeant Williams to the case of Stennel v. Hogg," which reads as follows:

"With respect to the former (imperfections in the pleadings which are cured at common law by verdict) case, it is to be observed that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated, or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by the verdict by the common law."

On close reading, the ambiguity and contradiction in this statement will appear. Serj. Williams, in effect says that defects of substance, fatal upon demurrer, are cured by verdict. This, of course, is absolutely contrary to the cases of Rushton v. Aspinall,12 by Lord Mansfield, and Jackson v. Pesked,13 by Lord Ellenborough, both of which Serj. Williams cites in his note. It has been held in a great number of cases that it is beyond the power of a legislature to make a good cause of action out of one fatally bad. Neither can there be any question but that a single defect of substance fatal on demurrer, makes a pleading fatally bad. It appears expressly by the

8

If this be denied, we appeal to the irreconcilable decisions in Missouri, New York, Illinois and all the "Theory of the case" states. These states have piled up mountains of cases on what can and what cannot be waived, in order to allow the parties to have their fight10 before the court unrestrained by the state's record.

Origin of the "Theory of the Case."—It would seem that this whole discussion, and the erroneous views of waiver that have

(8) Andrews' Steph. Pl. Sec. 230: cases (2 Ed.)

(9) 4 Gr. & Rud., p. 939, tit. Pleadings.

not have in mind merely the imperfect statement of matter of substance. This would be merely matter of form, and would be curable. He extends the cure to matters of substance "omitted." Illinois has been led into error by this quotation and mischievous decisions have followed.14

Later in the note Serj. Saunders takes this turn: "But still, if the plaintiff either states a defective title, or totally omits to state any title or cause of action, a verdict

(10) See "Theory of the Case," 4 Gr. & Rud. (11) 1 Wms. Saunders, 228, n, 85 English Reprint 244, n. 248.

(12) Smith's Lead. Cas., 8th Ed., L. C. a Hughes' Gr. & Rud. 5.

(13) 2 Maule & S. 224, quoted by Chitty ana Stephen, 85 Eng. Reprint, 248.

(14) Chicago R. R. v. Hines, 132 Ill. 161, 166.

authority in matters of jurisdiction; and every excess will amount to a usurpation, which will make its decretal orders a nullity, or infect them with a ruinous infirmity."

Here we find the true rule. A statement of a cause of action-implying, as it does, a pleading-is juridical. Without it the proceeding is coram non judice. It is this statement of a cause of action that vests the court with intrinsic authority to proceed.

17

As Judge Lamm well said, in the case of State ex rel. Muench, after contrasting the older common law with its more developed form:

"But in modern jurisprudence a court remains passive until issues are framed in accordance with written law and their judgments must respond to such issues. A judgment is 'the sentence of the law upon the record.' It is the application of the law to the facts and pleadings. Any other view (i. e., Theory of the case) would be illogical and tend to confusion and chaos in the administration of justice. Black v. Early, 208 Mo. 1. c. 313, and cases cited. Speaking to the point, we quote with approval from a sound authority: "The judicial power can be set in motion in civil matters only by some person-using the word in its broadest sense-in a case against another person. The courts cannot, ex mero motu, set themselves in motion, nor have they power to decide questions except such as are presented by the parties in their pleadings. The parties by their attorneys make the record, and what is decided within the issue is res adjudicata; anything beyond is coram non judice and void.' Andrews' Stephen's Pleading (2d Ed.), p. 34; see, also, Reynolds v. Stockton, 140 U. S. 254."18

This is undoubtedly the law, and the standpoint of res adjudicata is well introduced in the quotation. The sub-quotation is not from Stephens, however, but is from the introductory chapter of the editor. Judge Lamm also cites, the great Leading Case of Munday v. Vail, 34 N. J. Law, 422.19

Suppose the student goes likewise to Mansfield, Ellenborough, Kent, Marshall or Shaw, and finds that they are in entire accordance with the above quotations

from Story and Lamm, will he not from these writers learn the true doctrines of the common law respecting pleading? Cannot the student work out for himself from Story's Section 10 the position that defects subject to the general demurrer are never waived; that the general demurrer, whether under that name or under the name of motion in arrest, non obstante veredicto, order of repleader, res adjudicata or collateral attack, goes through the whole record and attaches to the first fault; that the statute of jeofails cannot and does not cure "omitted matter of substance, fatal on demurrer."

Supposing the student was thoroughly taught Rushton v. Aspinall,21 Dovaston v. Payne, 22 Jackson v. Pesked,23 and Windsor v. McVeigh,2* what work on common law pleadings would be equal to this instruction?

If the reader desires to ascertain the condition of the students of our law schools upon the questions above discussed, let him but catechise them. Here is about the way the conversation will go: Q. What work on pleading did you study? A. Stephens. Q. Were you taught it thoroughly? A. Yes, we learned it nearly by heart. Q. Do you remember what Stephen said about Jackson v. Pesked, and the quotation he made from it? A. No, sir. Q. Do you remember the quotation from Serjeant Williams in Stephens'? A. No. sir. Q. Then you don't know whether these quotations are diametrically opposed or not? A. No, I do not. Q. Do you remember Stephens' rule that the demurrer searches the entire record and attaches to the first fault? A. Yes, I have heard of it. of it. Q. Do you also remember what he said about aider by pleading over, by verdict and the statute of jeofails? A. Yes, he said something about it. Q. Now, would it be possible to plead the general demurrer to a case where there was any

(20) L. C. 5, 3rd Gr. & Rud.

one of these three kinds of aiders? Would it be possible to do it? A. I don't know. Q. Do you remember the three kinds of aider advocated by Chitty, Stephens and Gould? A. No, I do not. Q. Do you know anything about Coke's three degrees of certainty? A. No, sir.

Further questioning might reveal a still greater lack of acquaintance with important principles.

Q. Suppose a matter of substance is omitted from the statement of a cause of action. The case goes to verdict. Does the rule, that the general demurrer searches the whole record and attaches to the first fault still apply, or does the rule of aider by verdict apply? A. I don't know. Q. Was your attention called to the question at school whether there is anything inconsistent between Stephens' two statements first, that matter of substance omitted from a declaration, which would be a fatal objection on demurrer, is cured by verdict; and, second, that where there is a failure to state a cause of action, the failure is not cured by verdict? A. No, sir. Q. Do you understand that the code system of pleading is fundamentally different from that of the common law and equity? A. Yes, sir. Q. Don't you know that the fundamental principles applicable to all systems of pleading can be picked out of Section 10 of Story's Equity Pleading? A. No, sir, I never read that section. Q. Do you know that Bliss on Equity Pleading says that to understand the principles of a code the student must understand the principles of common law pleading? A. A. No, sir. Q. Does not that statement indicate to you that the principles of the two systems are the same? A. Yes, sir, it does.

We leave it to the reader to judge whether a student graduating in this condition has been grounded in the fundamental principles of procedure.

The main difficulty about these procedural troubles is that we have become involved in unending discussions about triv

ialities, and in the confusion, have forgotten the fundamentals.

Take Serjeant Williams' "learned" note as an example. What a prolific source of error it has proved. The note is an attempt to mark a line of distinction between defects that are cured after verdict by the common law and defects that are cured after verdict by the statute of jeofails. What the difference amounts to, he does not state, but merely says there is a difference. There may have been, and may not. We are told on good authority that there is no difference; that the statute of jeofails "is only a declaration of the common law."25

But that is not the point. The point is that in making this distinction, Serj. Williams totally overlooked the harm he might do to jurisprudence.26 He made an opening for the "Theory of the Case" doctrine, in countenancing the possibility of curing a fatally defective pleading-a nullity. He did not understand the maxim, Debile fundamentum, fallit opus (where the foundation fails, the whole superstructure falls).27 He did not know that maxim as a rule of

pleading. He did not know its cognate maxim, De non apparentibus, etc. (what is not juridically presented cannot be judicially decided) as a rule of pleading.

He did not understand the effect of putting in those words "substance" and "fatal objection on demurrer." He made a mistake and it has done incalculable harm. The theory of the law was disarranged; its harmony was broken. The error spread through its entire structure; and has been taken up and approved by the writers above named and by others equally popular, until now it is solemnly laid down as law, "too well settled to be shaken," that one man can take the property of his fellow without ever setting up a cause of action against him. If such be the law, what becomes of our boasted "due process of law"; what

(25) Bliss, Code Pl., Sec. 442; Welch v. Bryan, 28 Mo. 30; Frazer v. Roberts, 32 Mo. 457.

(26) Uno absurdo dato infinita sequntur. 4 Gr. & R. 1084.

(27) 2 Gr. & Rud. 477.

becomes of "substantive" rights, when they can thus be subverted by a rule of procedure? Can a lawyer be a leading lawyer, or, indeed, a lesser one, and understand. these matters, and remain silent?

There is a way out, and one way onlya knowledge of the fundamental principles of Procedure. "The study of Procedure is a study of Government." It is susceptible of demonstration that the principles of the law are few; that they can be arranged in order and stated in black on white, in small compass. The law in that sense is a little thing. It is a beautiful harmony of principle, but capable of being distorted into an unsightly wreckage of cases.

Let us study its immutable principles, and learn again to reason from them, using the great leading cases as beacon lights. Some suggestions along this line will probably be offered later.

St. Louis, Mo.

EDWARD D'ARCY.

INFANCY-ESTOPPEL TO PLEAD.

GRAUMAN, MARX & CLINE CO. v. KRIENITZ.

Supreme Court of Wisconsin, April 26, 1910.

The rule that an infant may bind himself by his actual fraud, but not by mere conduct or silence when he ought to speak, is an exception to the rule that an infant cannot bind himself by estoppel, and is confined to cases where the infant is in fact developed to the condition of actual discretion, and to cases of actual fraud, and where the contract or transaction is beneficial.

The action was to recover on a promissory note upon which appellant was an accommodation maker. The complaint was duly verified. No answer was served. Judgment by default was taken, in due course. Neither appeared of record indicating that appellant was a minor. Execution was duly issued on the judgment and returned unsatisfied. Several months after judgment, supplementary proceedings were commenced against appellant, whereupon he appeared and secured appointment of a guardian ad litem to represent him and institute and carry on due proceedings to open the default and obtain leave to defend. A motion was duly

made to vacate the judgment. Upon such motion defendant tendered an answer, pleading that he signed the note as an accommodation maker, only, and that he was a minor at the time of so signing and still was such.

The motion was supported by affidavits on defendant's behalf that he, at first, became a guarantor for his codefendant at the request of her husband; that she desired to purchase millinery goods of plaintiff and could not do so without a guarantor of payment therefor; that later, when the indebtedness incurred on the faith of the guaranty, amounting to some $472, became due, defendant was asked by plaintiff's attorney to settle therefor; that defendant then claimed he was not liable because he was a minor; that, as a result of some negotiations, the claim was settled by the note in suit, signed by defendant as an ac

commodation maker and a personal note of the principal debtor for the balance.

The affidavits tended strongly to show that the settlement was made, and guaranty surrendered to defendant on the faith of his representation, by conduct, or words that he had arrived at the age of 21 years. Whether he expressly so represented was disputed, the preponderance of proof being in the negative. There was a conflict as to whether defendant represented himself to be of age when the guaranty was signed, but the preponderance of proof was in the negative. The affidavits pretty clearly showed that plaintiff supposed, and had reasonable ground to suppose, defendant was of age when he signed the guaranty and, later, when the note was signed, its agent supposed, and had reasonable ground to suppose he was of age, but in fact that he was not; that no benefits whatever came to defendant, at any time, for signing either guaranty or note; that he paid no attention to the litigation after the summons was served, but left the matter wholly to his codefendant to attend to till several months after judgment, when he was aroused to activity by institution of the supplementary proceedings. He was matured, beyond an ordinary person of his years, at the time he signed the guaranty. He had and was conducting a business of his own and had taken a place in the community as a business man; the appearances being such that one would naturally have supposed he was of age. He was influenced to his attitude, at the time of signing the note, somewhat, because he desired his father not to know that he had been allowing such use of his name.

MARSHALL, J. (after stating the facts as above): The situation, in brief, stating it as favorably for respondent as the moving papers will reasonably permit of, is this: Respondent