Answer No. 96.-In the opinion of the Committee there would be no professional impropriety in a member of the Bar addressing a printed announcement card to members of the Bar, advising them that he is both a member of the Bar and a Certified Public Accountant; but the addition of the other matters stated in the question seems to the Committee to be objectionable. REACTIONARY INTERPRETATION OF THE CODE. Whether the Reformed Procedure or "Code" is successful in a given state depends largely upon the interpretation given by its courts to its simplest and most comprehensive provision, which in the words. of the New York Code is as follows: "The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this state hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action." New York Code, S. 3339. Many of our courts at first hesitated, in fact refused, to recognize in this provision anything but meaningless babble. But the lamentable thing is, that a few courts still persist in nullifying in a large measure this basic provision of the "Code." This provision, in fact the whole system of Reformed Procedure, sought to eradicate two egregious defects of the common law system of pleading, viz: (1) distinction between actions at law and suits in equity, and (2) the many distinct and arbitrary forms of actions of law. And back of these defects the framers of the "Code" recognized that the method of administering the law (the adjective law) had become petrified in the early history of the common law, whereas the law to be administered (the substantive law) was constantly adapting itself to the varying needs of a progressive civilization. It was for the purpose of break ing down this "inveterate incongruity" between the adjective law and the substantive law that the "Code" made its appearance in our jurisprudence. Relief had been sought through the establishment of courts of equity and the use of legal fictions; but, at last, the defects of the old system became so pronounced and obstructive of justice that the entire system was subjected to a revolution resulting in the new system commonly called the "Code." What is the meaning of this provision of the "Code"? It must mean exactly what it says: first, that the distinction between actions at law and suits in equity are abolished, and second, that there shall be but one form of action denominated a civil action. The legislature by this provision did not attempt to disturb the primary rights, duties and liabilities of persons either at law or in equity, nor did it undertake to abolish all distinction between "law" and "equity" as the two departments of our municipal law. In other words, a wrong violating a primary right gives rise to a secondary right either legal or equitable and entitles the party wronged to either a legal or an equitable remedy just the same as it did before the adoption of the "Code." But what the legislature did undertake to abolish was the distinction between legal actions and equitable suits. The remedies awarded by the courts are not effected because the remedy is no part of the action or suit but is the result of such action or suit. So, also, the legislature did not attempt to abolish the different legal remedies, but did undertake to abolish all forms of actions by which those remedies were attained. The remedies, however, were not effected but remained in the new system as in the old. edies, Chap. 1. Pomery Code Rem It was merely the machinery by which the remedy was reached that the legislature sought to change. Under the old system it was frequently the case that a suitor was disappointed because he brought an action at law and proved at the trial that he was entitled to an equitable remedy, or that he proceeded in equity when he was entitled to a legal remedy, or that he misconceived the nature or form of his action at law, e. g. brought an action in assumpsit when he should have brought it in case. It was the purpose of the legislature to avoid such disappointments and permit a party to state the facts upon which he bases his primary rights and the acts or omissions violating these rights, and require the court to award the proper remedy. The legislature sought to change and did change to a great degree the forms, mode of procedure, parties, pleadings, and other steps of the action, but not the remedies to which the parties were entitled under the substantive law. There is under the "Code" but one form of action whatever the remedy sought might be, whether legal or equitable, whether er contractu or ex delicto. This form of action consists of a statement of the primary rights of the parties and the manner in which these primary rights have been violated. It is not the duty of the pleader to indicate the form of the pleading, obviously because there is but one form. It is merely his duty to present to the court the facts. It then becomes the duty of the court to determine what remedial rights flow from these facts and to award the consequent remedy. I have tried to ascribe the logical and sensible meaning to this provision of the "Code." The great bulk of the more modern decisions have given this provision as liberal an interpretation as its language warrants; but there are a few courts that refuse to break the shackles that have bound us to the traditions of the old system, and therefore have refused to interpret the provision in accordance with its plain meaning. Some courts in effect maintain that the division of actions into legal and equitable, and the distinctive features of actions at law, are inherent and cannot be abolished, and that, therefore, the legislature meant only to abolish the names of pleadings and not the forms. Thus we find the Supreme Court of Missouri using the following language: "While the use of formal and technical averments, which were necessary at common law to the statement of a cause of action, have been dispensed with by our code and are no longer necessary, the same material allegations are necessary under it that were necessary at common law; and it is clear, we think, that at common law, in order to state a cause of action in trover, the petition should state that the plaintiff had possession, or the right to the possession, of the property sued for at the time of the conversion." 991 The courts that take this position do not seem to grasp the distinction between actions and remedies. The legislature did not attempt to abolish the remedies then existing but merely the actions, the machinery if you please whereby the litigant is given his remedy. The actions were not inherent and were subject to abolition. If a plaintiff has stated his case on the theory that he is entitled to equitable relief when as a matter of fact he is entitled to legal relief, he should not suffer by reason of the fact that he has not anticipated the remedy to which he is entitled. To so hold would be to maintain all the distinction between legal actions and equitable suits known at the common law except the mere necessity of attaching a name. Yet there are courts that hold that under the circumstances just given the plaintiff must fail.2 Here again the court fails to recognize that all actions, not remedies, are abolished by the "Code." The courts of Indiana have imposed upon this provision a peculiar interpretation. The courts of that state require that a pleading must proceed upon some definite "theory," and that the complaint must be good upon the theory upon which it is pleaded, and if not, it is held bad, although the facts pleaded (1) Citizens' Bank v. Tiger Nail Co., 152 Mo. 145. 53 S. W. 902; see also. Casey v. Mason. 8 Okla. 665, 29 Pac. 252; Parsley v. Nicholson, 65 N. C. 210. (2) Shaw v. Howes, 126 Ind. 474, 26 N. E. 483. constitute a cause of action. The effect of this action is to maintain all the forms of actions at law and suits in equity, and merely refrain from ascribing to them the ancient nomenclature of the common law. Such a doctrine becomes proposterous when we reflect that the "Code" provides that a complaint is demurrable when "it does not state facts sufficient to constitute a cause of action," and that there is no provision that it is demurrable when it does not proceed upon a definite "theory." If facts sufficient to constitute a cause of action are stated in the complaint, it is difficult to understand why a demurrer thereto for want of sufficient facts should be sustained, merely because the "theory" is not definite or is ambiguous. The absurdity of sustainThe absurdity of sustaining a demurrer for want of a definite or unambiguous theory has been noticed by the courts of that state. And if such a complaint should be held good as against a demurrer, why should a plaintiff fail who has proved the facts alleged therein but has been mistaken merely in the "theory" upon which he is entitled to relief? The doctrine of "theory" has led to many interesting and strange results. In a recent decision the court concluded that although a complaint stated a good cause of action to quiet title, yet since the trial court had adopted a theory making the title to the land an incident merely, the plaintiff was not entitled to the remedy quieting title to his land. In another recent decision, where a complaint did not proceed upon a definite theory, and the court's instruction permitted recovery on the theory of either the plaintiff or defendant, the judgment was reversed. And further, it has been held, " (3) Aetna Powder Co. v. Hildebrand, 137 Ind. 462, 37 N. E. 136; Cleveland, etc., Ry. Co. v. Dungan. 18 Ind. App. 435. 48 N. E. 238; Oolitic Stone Co. v. Ridge. 169 Ind. 639, 83 N. E. 246; State v. Scott, 171 Ind. 349, 86 N. E. 409. (4) Scott v. Cleveland, etc., Ry. Co., 144 Ind. 125, 43 N. E. 133; Pittsburg, etc., Ry. Co. v. Rogers, 45 Ind. App. 230. 87 N. E. 28. (5) Nesbit v. English, 107 N. E. 552. 107 N. E. 552. (6) Lake Erie and Western Ry. Co. v. Barnett, 105 N. E. 931. that this "theory" must be determined from the general tenor and character of the pleading and not by the prayer for relief,' while an earlier decision holds that the Appellate Court may determine the theory by examinin gthe entire record of the proceedings in the trial court.8 The true principle was very aptly and correctly stated by a well known Indiana writer: "The purpose of the enactment of the Code was that a party should be awarded by the court whatever relief or remedy the facts alleged in his complaint showed him to be entitled without regard to any theory of his or the court." This doctrine which has been engrafted upon the code by judicial construction, is no doubt due to the judges' prejudice for the old system and is entirely reactionary. South Bend, Indiana. (7) LENN J. OARE. Crawfordsville Trust Co. v. Ramsey, 178 Ind. 258. 98 N. E. 177. (8) Carmel. et., Co. v. Small, 150 Ind. 427, 50 N. E. 476. (9) Work's Pleading and Practice. s. 341. CONTRACTS OF FRATERNAL INSURANCE COMPANIES AS COMING UNDER THE FAITH AND CREDIT CLAUSE OF THE CONSTITUTION. Preliminary. For seemingly the first time in the history of litigation in fraternal insurance, in a recent case decided by United States Supreme Court,' the question appears to have been squarely raised and presented of protection accorded to a charter and by-laws of a mutual benefit society by the faith and credit clause of the Constitution. This case held distinctly that a charter, or certificate of incorporation, granted under a general law of the State of Massachusetts, for a fraternal association under the lodge system, together with the constitution and by-laws thereunder, came under the faith and credit clause of the constitution, so far as such law (1) Sup. Council R. A. v. Green, 237 U. S-35 Sup. Ct. 724. H was construed by the highest court of such state, and the meaning and intent of contracts with the members of such organizations, so far as directed by such general law, must be as such highest court determines. Respect for Construction at Home in Fraternal Insurance Cases.-Text books and encyclopaedias seem to have ignored the influence of the faith and credit clause in benefit society cases, and decision in its conflict, as between states, has passed on rights of members under their benefit certificates on independent questions of law, without any particular regard to the charter state of the company, whose contract was the subject matter of controversy. I say particular regard, but I should add that a few cases have spoken of construction by the courts of the home state of the company as being entitled to great respect, but no case has pointedly declared that the foreign forum was bound to follow such construction, and at least one case has refused to follow it.2 struction given to this statute by the Massachusetts courts," and Massachusetts cases are cited.* and some indicating other companies involved than the one before the court, thus conclusively establishing that it was the general law whose construction was before the court. It is not distinctly stated, however, that the Massachusetts construction controlled, and Grimme v. Grimme, supra, appears to show that it was not intended to so say. A Connecticut case refers to much au thority to sustain its construction of Massachusetts law under which the company party was organized and adds that "this seems to be the construction placed upon it (the statute) by the Massachusetts courts." It so happened that the Connecticut court took the same view, but it did not intimate it felt bound by the view of the Massachusetts courts, though the cases cited were by the highest court of that state. A later Connecticut case" speaks of a membership contract in a fraternal society, and in the course of discussion of its mean In this case it appears that the fraternal company was organized under Missouri lawing and the opinion opens with the statement that: "The decision of this case involves interpretation and construction of the statutes of Missouri." The Court then proceeds in its own way to construe such statutes and says: "Appellant relies on the construction given to the act of 1897 by Missouri Court of Appeals in Supreme Council L. of H. v. Neidert, 81. Mo. App. 598." But because this Court's construction was viewed as "giving the act a retrospective operation," it rejected it. It is true Missouri Court of Appeals is not the highest court of that State, yet no point was made as to this, and it is admitted that the very statute involved was passed on. An earlier Illinois case3 was where the company was a Massachusetts organization and it was said: "We must respect the con reference is made to authority from various states and the Federal Supreme Court. It is observed that: "While the contract was a Connecticut contract, it was conditioned upon the laws of the society, and its laws, so far as valid, were in harmony with, and all of its contracts included the statute law of the state of its origin relating to fraternal benefit societies." Then are cited Massachusetts decision by its highest court, along with decisions from other states, but it is not intimated at all, that the former is given any precedence in value above the other, nor is any allusion made to state construction put upon its own statute, the company involved being a Massachusetts company. (4) Am. Legion of Honor v. Perry, 140 Mass., 580; Elsey v. Odd Fellows M. R. Assn., 142 Mass. 224. (5) Sup. Lodge N. E. O. P. v. Hine, 82 Conn., 315, 73 Atl. 791. (6) Sup. Colony Order Pilgrim Fathers V. Toune, 87 Conn., 644, 89 Atl. 264. In a Michigan case, the company involved was organized under Missouri statute. In the briefs authority is cited states, Missouri included. states upon somewhat similar statutes or not." This statement does not expressly say, that the Maryland court was compelled to follow such decision even to the overruling of its own holdings in prior cases, or that all cases, though resting on similar statutes in different states, must be vari of companies were in conflict. There is, however, an implication to the latter effect in the ruling itself. from many Campbell C. J. in his opinion cites no cases whatever, but he does say that the company "is in all its contract relations, subject to the conditions imposed by" Missouriously decided if ruling in the home states laws. He speaks of "the intent of the prohibition" in these laws but he gathers that intent from his own reading of the Missouri statute and not as decided by its courts. In a New Jersey case as decided in its Court of Chancery, and afterwards in its Court of Errors and Appeals a Massachusetts corporation was involved. The lower court said: "It is important to ascertain the force of the words 'other relatives' found in the (Massachusetts) act of 1882. To this end it is proper to inquire what force has been given to that language found in other statutes of Massachusetts by the courts of that state, and in that examination we find two remarkable cases." The Court of Errors and Appeals after citing Massachusetts cases said: "These decisions of that (Massachusetts) court on the powers of corporations established under the Massachusetts statute and on the mode of exercising those powers have almost, if not quite, absolute authority," citing for this a Maryland case.10 This Maryland case, in speaking of a Massachusetts statute, under which the company before the court was organized, said: "What the statute of Massachusetts authorizes to be done under it has been settled by the decisions of Massachusetts courts, and those decisions are controlling as to the effect and meaning of the statute, and we should follow them as making a part of the law of the state, no matter whether they are entirely in harmony with decisions of other (7) Sup. Lodge Knights of Honor v. Richardson, 60 Mich., 44, 26 N. W. 826. (8) Tepper v. Sup. Council R. A., 59 N. J. Eq. 321, 45 Atl. 111. (9) Same v. Same, 61 N. J. Eq. 638, 47 Atl. 460, 88 Am. St. Rep. 449. (10) Am. Legion of Honor v. Green, 71 Md. 263, 17 Atl. 1048, 17 Am. St. Rep. 527. In a later case by Maryland Court of Appeals11 there is an inference merely, that the statute should receive construction outside of a state as to all members belonging to the order that it receives at home, because equality of treatment is necessary. The only way it is practical to have this is to take the statute as it is construed where it is enacted. This it is perceived is merely persuasive reasoning to accomplish the end intended. It is not the announcement of a hard and fast rule. In a case in Massachusetts12 the company was organized under Connecticut law, and the question was of change in beneficiary and of the proper interpretation of the words claimed to authorize the change. The court said: "The case of Knights of Columbus v. Rowe, 70 Conn. 545, is almost identical with this case, and it was there held, without any statement of the reason for this part of the decision, that the widow of the member was entitled to the benefit, instead of his father, who was designated as the beneficiary before the marriage. This construction of a statute of Connecticut by the Supreme Court of that state is entitled to great consideration, if it is not absolutely conclusive upon us."13 Effect of Foregoing State Cases.—It may be that expressions such as above may be found in other cases, but as they occur in the reasoning of opinions they are somewhat difficult to run down in digests. That the principle they lead to is vitally important (11) Sup. Council R. A. v. Brashears. 89 Md. 244, 43 Atl. 866, 73 Am. St. Rep. 244. (12) Larkin V. Knights of Columbus, 188 Mass.. 22. 73 N. E. $50. (13) Italics are supplied. |