taken care of itself. It has asserted itself and demonstrated its position by wrecking the house built in ignorance of its funda mental laws. We have ignored it. and its vengeance is upon us. We have ‘eliminated technicalities,’ with just about the same success that would attend an architect's effort to ‘eliminate’ solid ground under his structure. We have heard of the house that was builded on the sand. . . . "Then works like Chitty, Stephen and Gould on Pleading, studied and followed as they have been for a century, by student, lawyer, author and judge, must have pro foundly afiected the whole body of the law. “And yet these works show that their authors did not understand the fundamental rules of procedure. They nowhere cite these rules. They do not show that the maxim, De non apparentibm et non existentibus eadem est ratio (what is not judicially presented cannot be judicially decided) lies at the base of pleading. (2 Hughes Gr. and R.) They do not see the state in pleading, but regard the matter as one entirely between the parties. According to these authors, pleadings are only to apprise the opposite party, or the court, of the issues. Out of such a conception of the function of plead ings and of the interests of the public, has grown the idea that, if only the parties con sent, pleadings may be waived in order to enable the contestants ‘to get at the merits.’ (Thompson on Trials.) “It would seem that this whole discussion, and the erroneous views of waiver that have developed out of it, took rise in a note of Serjeant Williams to the mse of Stennel v. Hogg, (1 Wms. Saundners 228, n., 85 Eng lish Reprint 244, n. 248,) which read 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 plead ing. 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 im
perfectly 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 con tradiction in this statement will appear. Serjeant 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, (Smith's Lead. Cas., 8th Ed., L. C. 3 Hughes‘ Gr. & Rud. 5) by Lord Mansfield, and jack
son v. Pesked, (2 Maule 8: S. 234, quoted by Chitty and Stephen, 85 Eng. Reprint, 248) by Lord Ellenborough, both of which Serjeant 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 above language that Ser
jeant Williams did 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. (Chicago R. R. v. Hines, 132 Ill. 161, N56.)
"We have become involved in unending discussions about
trivialities,
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 dif ference amounts to, he does not state, but
merely says there is a difierence. There may have been, and may not. We are told on good authority that there is no difi'erence;
that the statute of jeofails ‘is only a declara tion of the common law.’
(Bliss, Code Pl.,
Sec. 442; Welch v. Bryan, 28 Mo. 30; Frazer v. Roberts, 32 M0. 457.) "But that is not the point. The point is that in making this distinction, Serjeant Wil liams totally overlooked the harm he might do to jurisprudence. (Uno absurdo dato infim'la sequrmtur. 4 Gr. 8: R. 1084.) 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 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 dis arranged; its harmony was broken. The error spread through its entire Structure;
