632

THE GREEN BAG

cannot be made elastic so as to take form with the varying views of counsel." This quotation from Mescall v. Tully (1883), 91 Ind. 96, 99, which takes one view of a disputed question, is the text of Mr. Whittier's article. It is not concerned with questions of amendment, but the question is whether, the pleading being drawn on one theory, the party may win by proving a right to succeed on another theory and without amending his pleading so as to make it conform to this new theory. If the new theory requires the proof of facts not alleged the plaintiff will fail. But when there are sufficient facts in the pleading to sustain the new theory, although alleged in aid of the real theory and not to make out the new one, the courts are divided. "This distinct conflict of authority is not very surprising, since the arguments drawn from legal theory or substantial justice are evident and rather evenly balanced. For the Indiana view the argument of surprise is the chief one. And there are indications, especially in the New York case, that where the danger of surprise is small the Indiana rule will not be applied. For the view that one may depart from his theory it may be said that it avoids the deciding of cases on what will certainly appeal to a layman as a technical ground. If the facts are alleged in accord ance with the provisions of the codes is these not a partial return to forms when it is required that the facts shall be stated in accordance with some particular theory? That the wrong theory is chosen will almost always be the fault of the lawyer rather than of the client. When technical errors of the attorney prove disastrous, the client is likely to hurl epithets at the law. Our procedure is already quite vulnerable to attack. The weak spots should not be increased. Perhaps to hold that, when the adoption of a theory by one party has in fact misled the other to his detriment, then the latter shall be entitled to such relief as will enable him to avoid the effects ot his misunderstanding, would be a satisfactory solution. Proper relief might consist of an order that the misleading pleading be amended and that the other party have a right to reply to it anew. In many cases, no dcubt, any harm that had occurred could be remedied without making worthless so

much of the proceedings that had already taken place. The reasoning of the Court in Co-naughty v. Nichols that where the pleading is misleading the defendant should move to make it definite or to have the pleader elect between the possible theories, and that if he proceeds without doing so he is to be taken as fully understanding the pleading, seems very weak. If he in fact recognizes the ambiguity, the only situation in which he could move to have it corrected, then he is plainly not actually misled by it and would under the solution just suggested be entitled to no relief. If he does not recognize the ambiguity, the reasoning of the Court could be thought right only on the ground that he was at fault in not recognizing it. But the pleader himself was at fault in filing such a pleading and he was first in fault. Also to refuse all relief because of this error of the opposing party's attorney, is to again punish the client for his lawyer's fault with unneces sary severity; — a thing, as suggested above, likely to bring the law into disrepute. The disposition of costs may be used to adjust the burdens arising from a possible re-trial of the case as equitably as possible." QUASI-CONTRACTS. " Recovery of Money Paid under Mistake of Law," by William P. Rogers, Michigan Law Review (V. vii, p. i). Arguing, despite the many authorities to the contrary, for an affirmative answer to the question: " Can one recover from another money paid under mistake of law to which the payee is not entitled, and which he can not in good conscience retain?" PRACTICE. " On the Witness Stand," by Hugo Miinsterberg, The McClure Company, New York, 1908. This is a reprint of a series of brilliant magazine articles on the application of the experimental methods of the modern psychologist to the detection and conviction of crime. These articles were reviewed editorially by us when they ap peared. Lawyers who have not read them should do so, as they open a surprising vista and may betoken the coming of a radical change in our court practice. The change may be with us sooner than we now expect. PROPERTY. " Are Natural Water Powers Public Property? " by W. A. Coutts, Central Law Journal (V. Ixvii, p. 356).