of his services, which he found to be something over $1,000. Judgment was given for the plaintiff for that sum. The Court of Appeals held that the judgment should be reversed, because in his complaint the plaintiff had proceeded on the theory of a partnership and his complaint was in the nature of a bill in equity, whereas the judgment was based upon a contract and was in the nature of a judgment at law.20

In Massachusetts, forms of action have not been entirely abolished, but have been reduced to three; viz., tort, contract, and replevin. In Ash v. Childs Dining Hall Co." the plaintiff brought an action of tort, alleging that the defendant corporation conducted a dining hall and that the plaintiff while eating a meal there as a customer was injured by swallowing a nail in a piece of pie, and that the defendant had negligently permitted the nail to get into the pie. The answer was a general denial. At the trial there was no evidence that the defendant was negligent. The judge refused to order a verdict for the defendant; and the Supreme Judicial Court held that this ruling was erroneous. It was conceded that if the plaintiff had sued on an implied warranty, she could have recovered; indeed it was so decided by the same court on the same day in a similar case,22 in which the plaintiff, whose teeth had been injured by stones in a plate of beans served by the same defendant, sued in "tort or contract" on an implied warranty and recovered.23 The mere fact, therefore, that the plaintiff in the Ash case made and failed to prove the unnecessary allegation of negligence, prevented his recovery, although he had alleged and proved enough facts to constitute a cause of action.24

How much simpler and more sensible is the practice in Ontario. In a recent address before the Judicial Section of the American Bar

20 For a criticism of the decision, see 31 HARV. L. Rev. 166 (1918).

21 231 Mass. 86, 120 N. E. 396 (1918).

2 Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N. E. 407 (1918).

23 In Massachusetts the form of action to recover on an implied warranty may be tort or contract. See Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481 (1908).

24 For recent decisions taking the same view on the general question of the theory of the pleadings, see Nave v. Dieckman, 208 S. W. (Mo. App.) 273 (1919); Deyo v. Hudson, 123 N. E. (N. Y.) 851 (1919). For cases taking the opposite view, see Knapp v. Walker, 73 Conn. 459, 47 Atl. 655 (1900), SCOTT, CASES, 103; Bruheim v. Stratton, 145 Wis. 271, 129 N. W. 1092 (1911), SCOTT, CASES, 105; Cockrell v. Henderson, 81 Kan. 335, 105 Pac. 443 (1909).

Association, Mr. Justice Riddell of the Supreme Court of Ontario, in speaking of civil practice in that province, said:

"Amendments of pleadings are allowed almost as of course at any stage even in the Appellate Division. Our rules in that regard are imperative not permissive - 'shall' not 'may.' . . .

"These amendments may be made in the proceedings before trial, they may be made at the trial, they may be made in the Appellate Division. Over and over again, in the Appellate Division in which I have the honor to sit, the objection has been taken, 'The judgment does not follow the pleadings,' and the answer made: 'Very well; we will amend the pleadings to agree with the facts.' There may be other facts which would require to be proved under the amended pleadings or other evidence which a party might desire to adduce. If so, we call the witnesses before us in the Appellate Division, and have them examined there; or sometimes facts are allowed to be proved on affidavit.

"If the facts are all before the court, we have little care for the pleadings and we care nothing for the 'state of the record.' . . . We care so little about the record that, in a great many cases, the amendments which are ordered to be made are not made in fact." 25

AMENDMENT OF PLEADINGS

In Friederichsen v. Renard 26 the plaintiff brought suit in a federal court alleging fraud in an exchange of lands, and seeking cancellation of the contract and deeds. The defendants denied the fraud. A master reported that the plaintiff had been induced to enter into the contract by fraud, but that the plaintiff after having notice of the fraud had cut timber upon the land which he had received from the defendants under the contract. The court held that the plaintiff was not entitled to equitable relief, because by cutting the timber he had ratified the contract, and that his remedy was at law for damages; and it was ordered that the cause be transferred to the law side of the court and that the parties "file amended pleadings to conform with an action at law." 27 The plaintiff thereupon filed an amended petition on the law side of the court, stating the facts

25 5 AMER. BAR ASS'N JOUR. 646, 647 (1919).

26 247 U. S. 207, 38 Sup. Ct. Rep. 450 (1918).

27 This transfer was authorized under Federal Equity Rule 22. A transfer from the law side to the equity side of the federal courts is permissible under the provisions of the Law and Equity Bill of March 3, 1915, 38 STAT. AT L. 956, amending Judiciary Code, § 274a.

which he had stated in the original bill in equity, and praying for a judgment for damages for deceit. The defendants pleaded the Statute of Limitations. At the time when the original bill was filed the period of limitations had not yet run, but it had run at the time when the amended petition was filed. A verdict was directed for the defendants and a judgment entered thereon, which was affirmed by the Circuit Court of Appeals. The case was carried to the Supreme Court of the United States on a writ of certiorari, and that court reversed the judgment, holding that the filing of the amended petition was not the commencement of a new action, and that the plaintiff was not barred by the Statute of Limitations. The decision seems sound; 28 the plaintiff was still relying on the same wrong, although the relief sought was different. The result of course could never have been reached at common law, where suits in equity and actions at law could not be entertained by the same court, nor in jurisdictions where it is impossible to transfer a case from the equity side to the law side of a court administering both law and equity.

There have been several other recent cases in which the question has arisen whether an amendment states a new cause of action which would be barred by the Statute of Limitations. In Nash v. Minneapolis, etc. R. R. Co.29 the plaintiff brought suit in Minnesota for damages under the federal Employers' Liability Act for the death of her intestate in Iowa. After the period of limitations had expired she amended her complaint so as to base her action upon an Iowa statute. It was held that the Statute of Limitations was no bar.30 The opposite result was reached in the converse case in Carpenter v. Central Vermont Ry. Co.,31 where the plaintiff originally based his action upon the law of a state and amended his declaration so as to base his action upon the federal Employers' Liability Act.32

28 See Schurmeier v. Conn. Mut. Life Ins. Co., 171 Fed. (C. C. A.) 1 (1909), Smith *. Butler, 176 Mass. 38, 57 N. E. 322 (1900); Reynolds v. Mo., etc. Ry. Co., 228 Mass. 584, 117 N. E. 913 (1917).

29 169 N. W. (Minn.) 540 (1918).

30 Baltimore & O. R. R. Co. v. Branson, 104 Atl. (Md.) 356 (1917), contra. See 3 MINN. L. REV. 132 (1919).

31 107 Atl. (Vt.) 569 (1919).

32

* In Breen v. Iowa Central Ry. Co., 168 N. W. (Iowa) 901 (1918), the court refused to allow the defendant after the statutory period to amend his answer or to introduce evidence to the effect that the defendant was engaged in interstate commerce. The

PLEADING AIDER OF DEFECTS

If the plaintiff omits from his complaint a necessary allegation, and the defendant in his plea supplies the missing allegation, the defect in the declaration is cured.33 In Auxier v. Auxier 34 it was held that a missing allegation in the plaintiff's complaint might be supplied in the plaintiff's reply. A decision to the same effect has been rendered in New Jersey.35 These cases show a growing tendency toward requiring less formality in the pleadings, when the rights of the parties are not adversely affected thereby.36 At common law it would appear that if the plaintiff has omitted an allegation in his declaration, it is not proper to supply it by inserting it in one of his subsequent pleadings, but he should amend his declaration.37

PLEADING ALLEGATIONS IN THE ALTERNATIVE

In several states it is permissible for a party in his pleadings to allege facts disjunctively or in the alternative.38 At common law such pleadings were regarded as uncertain and indefinite.39 In Macurder v. Lewiston Journal Co.40 it was held that a declaration in which the plaintiff alleged that the defendant published or caused to be published a certain libel was open to a general demurrer.“

plaintiff therefore recovered without amending his complaint. See 3 MINN. L. REV. 59 (1918).

"Brooke v. Brooke, 1 Sid. 184 (1664), Scott, Cases, 192. Similarly, a plea may be aided by an admission in the replication. United States v. Morris, 10 Wheat. (U. S.) 246 (1825).

34 182 Ky. 588, 205 S. W. 684 (1918).

35 Marine Trust Co. v. St. James A. M. E. Church, 85 N. J. L. 272, 88 Atl. 1075 (1913).

36 It is not permissible for a plaintiff to supply a new cause of action in his reply; that would be a departure. Nor is it permissible to do so by filing a counterclaim to the defendant's answer. Smith v. Caster, 170 N. W. (S. D.) 156 (1918).

37 Kearney County Bank v. Zimmerman, 5 Neb. (Unoff.) 556, 99 N. W. 524 (1904). * Similarly also in some states parties may be named alternatively. See R. S. C. 1883 (England), Order XVI, Rules 1 and 4; CONN. PRACTICE BOOK, 1908, page 238; N. J. LAWS, 1912, p. 378, Rules 4 and 6. See Crouse v. Perth Amboy Pub. Co., 85 N. J. L. 476, 89 Atl. 1003 (1914); Phenix Iron Foundry v. Lockwood, 21 R. I. 556, 45 Atl. 546 (1900). But see Casey Pure Milk Co. v. Booth Fisheries Co., 124 Minn. 117, 144 N. W. 450 (1913), 51 L. R. A. (N. s.) 640, Scott, Cases, 154.

39 STEPHEN, PLEADING, *426.

40

104 Me. 554, 72 Atl. 490 (1908), SCOTT, CASES, 203.

"King v. Brereton, 8 Mod. 330 (1725) (motion in arrest of judgment), accord. The

This was an extreme instance of the severity of the common-law rule. In Adams Express Co. v. Heagy 42 it was held that an allegation that the defendant knew, or by the exercise of reasonable care would have known, of a certain fact, was sufficient. Even where disjunctive allegations are regarded as uncertain, such allegations as those contained in the two cases above mentioned can hardly be so regarded. If one of the alternatives stated is insufficient to maintain the action, then of course no cause of action is stated and the pleading is demurrable.43

TRIAL BY JURY

44

Trial by jury is becoming an increasingly expensive luxury. In many states the legislatures have, during the past year, increased the fees of jurors. In England the tremendous drain upon the man power of the country induced Parliament to pass a statute whereby it was provided that during the continuance of the war, and for six months thereafter, issues in legal actions should be tried without a jury except in certain classes of actions, such as libel, slander, malicious prosecution, and the like, unless otherwise ordered by the court or a judge. The number of jurors required at coroners' inquests had been reduced by a statute of the previous year.45

INSTRUCTIONS TO THE JURY

In 1918 a bill was introduced in Congress providing that it should be reversible error for the judge presiding in a federal court to express his personal opinion as to the credibility of witnesses or the weight of testimony; and that the judge, where requested by either party, should reduce to writing his charge to the jury, and should deliver his charge before the argument of counsel, except when the court is sitting in states in which a trial judge is permitted to deliver his charge after argument of counsel. Fortunately this attempt to impair the power of the federal judges was unsuccessful;

better view is that the defect is open only to special demurrer or motion. See Anderson v. Minn., etc. Ry. Co., 103 Minn. 224, 114 N. W. 1123 (1908). 42 122 N. E. (Ind. App.) 603 (1919).

Hoffman v. City of Maysville, 123 Ky. 707, 97 S. W. 360 (1906); Anderson v. Minn., etc. Ry. Co., 103 Minn. 224, 114 N. W. 1123 (1908), Hanford v. Duchastel, 87 N. J. L. 205, 93 Atl. 586 (1915).

Juries Act, 1918, 8 & 9 GEO. V, c. 23.

45 Coroners (Emergency Provisions) Act, 1917, 7 & 8 GEO. V, c. 19.