practice of the chancery court taking evidence of its own motion "to inform the conscience of the judge' does not appear to have ever been other than an exceptional ones and should no more be deemed indicative of the general principle than the right of a common law judge to call a witness of his own motion. It would have been strange, indeed, if chancery procedure, the joint product of canon and common law, had elected to follow as its governing principle one which was the governing principle of neither of its congeners. But any question here existing can relate only to the very earliest period of the court of chancery, for Sir Frederick, himself, says that what he considers as originally the ex officio functions of the court "were already handed over to the parties when equity procedure became settled, and the procedure, though differing much in form from that of the common law courts, was in substance no less contentious."81

Nowhere, either at common law or in chancery, does the principle of party-presentation operate more conspicuously than in the field of proof. "The apportionment of the task of producing evidence is one of the most characteristic features of the Anglo-American system. It is placed wholly upon the parties to the litigation; it is not required or expected of the judge."2 But, as the principle of party-presentation is nowhere an absolute one, so we meet in our law with certain recognitions of its opposite, the principle of judicial investigation. Precisely in the matter of proof is such a one, for it is a long-established rule with us that the judge "may call a witness not called by the parties .. without derogating from the general principle that the risk and burden of producing evidence is upon the parties themselves."83 Down to very recent times the risk and burden, in the matter of allegation, also rested upon the parties, and upon the parties exclusively. While the court, without objection from the other side, could always turn away a plaintiff whose allegations disclosed a case not within its jurisdiction,84 it could deal no further with the allegations sua sponte. Any change in the allegations, as originally put forward, had to come about by action of the parties.85 But, under the reformed procedure, both in a

79. Pollock op. cit. 74.

80. See Spence "Equitable Jurisdiction of the Court of Chancery" I 380-381. 81. Pollock loc. cit.

85. "Pleadings are prepared by counsel, and upon him rests the responsibility for imperfections which may render them unserviceable to the client. It is not the province of the judge to order a correction of errors or

number of American jurisdictions and in England, the court is now permitted, in certain cases, to effect amendments of the pleadings, of its own motion. Thus, by the English rules, an amendment of this kind may be made so as to add or strike out parties plaintiff or defendant, or "for the purpose of determining the real question raised by or depending upon the proceedings."8" To this extent, therefore, the principle of judicial investigation has been yielded place in the field of allegation. The tendency probably is to give it even further room in both directions, for the ideal lies in some appropriate combination of the two principles, with ascendancy always reserved for that of party-presentation.

§4. PARTY-PROSECUTION AND JUDICIAL PROSECUTION

The respective functions of party and judge with reference to the content of the cause are one thing; their respective functions with respect to the going forward of the cause are quite another. In the latter regard we must take into consideration the contrast presented by the conceptions of 'Parteibetrieb' (literally "partyimpulsion") or 'Selbstbetrieb' (literally "self-impulsion"), on the one hand, and 'Offizialbetrieb' (literally "official impulsion"), on the other. Adherence to English idiom requires us to translate these opposites as "party-prosecution" and "judicial prosecution."

Kohler, "Zivilprozess und Konkursrecht" in von Holtzendorff's "Enzyklopädie der Rechtswissenschaft":88 "Prosecution of the cause ('Prozessbetrieb') is the activity which urges it forward from stage to stage. This activity may be assigned to the party or the court. Accordingly we distinguish between party-prosecution and judicial prosecution."

Heilfron & Pick, "Lehrbuch des Zivilprozessrechts":89 "In a system governed by the principle of party-prosecution it is for the party ("ne procedat judex ex officio") to see to the progression of the proceeding by means of summons, production of evidence and the like; in the removal of defects, though on application he may permit this to be done." Ten'Broeck v. Orchard 79 N. C. 518. "A decree, of itself, cannot operate to change or amend the pleadings. This must be done by the application of the party, and leave of the court. The court may suggest, or even direct, an amendment; but, in such case, it remains with the party to amend or not, as he may elect. It is beyond the power of the court, ex mero motu, to amend the pleadings, or eliminate any part thereof." Caldwell v. King 76 Ala. 149.

86. See Valencia v. Couch 32 Cal. 339; De Celles v. Casey 48 Mont. 568; Hough v. Porter 51 Or. 318; Cosgrove v. Metropolitan Co. 71 N. J. L. 106. 87. R. S. C., O. XVI r. 11; O. XXVIII r. 12; "Annual Practice" (1922) 240, 445, 461.

88. (1913) III 303. 89. (2nd ed.) I 451.

a system governed by the principle of judicial prosecution, this duty falls upon the judge."

Engelmann, "Der deutsche Civilprozess":90 "Where by reason of the institution of an action, it devolves upon the judge to do all acts serving to bring about its determination, we speak of 'judicial prosecution'; where it devolves upon him only to do the particular act which the parties demand as the immediate object of their activity, we speak of 'party-prosecution." "

Engelmann, "Der Civilprozess: Allgemeiner Theil":91 "We make here the distinction between party-prosecution and judicial prosecution, according as the basic nature of the procedure obliges the judge, on the one hand, to do only specified acts as requested, or, on the other, all acts serving to the ultimate determination of the cause. Under the principle of party prosecution, the party exercises such control over the claim that the continuation and termination of the suit remain de

pendent upon repeated motions made by him. Thus, the judicial organ becomes active only upon such a motion and relapses into inactivity as soon as the particular thing moved for has been accomplished. Thus, too, inaction of the party means inaction of the court and brings the cause to a standstill. Under the principle of judicial prosecution, on the contrary the court, with the institution of the suit or, in certain special cases, by the bringing forward of the demand, receives from the hands of the moving party the duty as well as the right, not only to do the several judicial acts as they may be requested, but to do all things necessary to determine the claim itself. In such case it does not relapse into inactivity until this end has been attained or the party has withdrawn his claim. Care must be taken not to consider as opposites the principle of party-presentation and that of judicial prosecution. That the principle of party-presentation and the principle of judicial prosecution are compatible is exemplified by the German common law system and the later Prussian."

"'92

To put the case in still another way, the principle of partyprosecution represents the phenomenon, with which we are sufficiently familiar, that, in general, the court will take no step in the case except on motion of the party. Its opposite is that, once an action has come into being, the court, with or without motion, will cause to be taken all steps necessary for its due adjudication. But where the principle of party-presentation obtains, such action on the part of the court must in nowise infringe the right of the parties, under that principle, to define the subject-matter of the adjudication.

Along with the principle of party-prosecution there always, and necessarily, exists a greater or less degree of power in the judge to direct and supervise the proceeding. He "has to see that the suit from beginning to end is conducted in the mode appointed by law,

92. I. e., from 1846 to 1879. Heilfron and Pick op. cit. I 459, note.

that light and shade are equally distributed, that the parties, without hindrance or restriction, may utilize all means which the law has given them for the effectuation of their rights and especially for the adduction of their proof."93 In other words, "it is selfevident that in the double end of (a) conducting an externally well ordered proceeding and (b) bringing to examination, in this proceeding, the cause-material as fully and correctly as possible, there are attributed to the court certain powers in relation to the formal and substantial shaping of the case, which it is authorized and required to apply in this regard. The activity which subserves such double end is known as 'Prozessleitung".""* This term (literally "cause-guiding") may be rendered, at the risk of some inexactness,95 as "direction of the proceeding" and, by a borrowing from an English writer,96 we may speak in this regard of the court's "directive power." The direction in question is classified as formal and substantial, negative and positive. It is formal when it has to do with the external progress of the cause, e. g., setting a cause for hearing, substantial, when it tends to clarify the cause-material, e. g., examination of a witness by the court. It is negative when it cuts off the parties from irrelevant measures, positive, "in so far as it contributes to the commencement, continuation and termination of the proceeding and insures an adequate basis for judgment."'98

In the Germanic procedure, initiative in prosecution lay entirely in the hands of the parties.99 "The parties before the court are wholly answerable for the conduct of their own cases. Litigation is a game in which the court is umpire."100 The first two periods of the Roman procedure-those of the 'legis actio' and formulary systems show such initiative to be with the parties in general,101 although the court is not without the right to do certain things on its own motion.102 In the third period of the Roman procedurethat of the libellary system-the power of the court over the cause

93. Bunsen "Lehrbuch des Civilprozessrechts” 84. 94. Heilfron and Pick op. cit. I 467.

95. In the German literature, the term 'Prozess direction' has been used to express only one phase of the conception here involved. Engelmann "Der Civilprozess: Allgemeiner Theil" 121.

96. Finlason "An Exposition of Our Judicial System and Civil Procedure as Reconstructed under the Judicature Acts," 89.

97. Engelmann op. cit. 121; Kleinfeller "Lehrbuch des deutschen Zivilprozessrechts" 209-211.

98. Engelmann loc. cit.

99. Id. "Der mittelalterlich-deutsche Prozess" 39.

100. Pollock "Expansion of the Common Law" 32.

101. Engelmann “Der römische Civilprozess" 104.

102. See Wieding "Der justinianeische Libellprozess" 709.

"108

became so augmented,103 while still leaving much to party initiative, that the system may be warrantably treated as one of judicial prosecution.104 The Romano-canonical procedure, especially after the infusion into it of the large measure of judicial directive power given by the 'Clementina Sæpe,105 may be similarly classed.106 While its offspring, the German common law system, like itself, subscribed in formal theory to the maxim "ne procedat judex ex officio," the extent of control permitted to the court is here, too, occasion for regarding the system as subject to the principle of judicial prosecution.107 Under the common law procedure, "the parties need not act until ordered to do so by the court: to see to the going forward of the cause was the official duty of the judge. . . In the Prussian system of 1793-5, the principle of judicial prosecution was a natural corollary of the principle of judicial investigation which there took the ascendant.109 And when that system was departed from, Prussian legislation, reverting in this regard to the principles of the common law, retained the principle of judicial prosecution along with the substantial re-introduction of the principle of party-presentation.110 The French system has always conformed to the opposite principle. "It leaves the sequence and time of the several steps wholly to the discretion of the parties, in the expectation that the parties' own interest will find the speediest and most suitable way. The court waits until the parties lay before it a question as ripe for decision, and, after each decision, is 'désaisi,' i. e., it awaits a new act of the party.' This attribute of the

99111

103. See Bethmann-Hollweg "Der römische Civilprozess" III 32-33. 104. So by Heilfron and Pick op. cit I 287, 452, note, 459 note. But cf. Engelmann "Der römische Prozess" 152-153.

105. Engelmann "Der romanisch-kanonische Prozess" etc. 135.

106. "In the ecclesiastical practice,' every step in a cause regularly takes place in open court, under the direction and supervision of the judge the court is active, assuming the supervision and control of the proceedings in an action from beginning to end." Langdell "Summary of Equity Pleading" (2nd ed.) 43, 45.

107. Heilfron and Pick op. cit. I 459, note; Engelmann "Der Civilprozess: Allgemeiner Theil" 179; Stein "Der Civilprozessrecht" in Birkmeyer's "Encyklopädie der Rechtswissenschaft" 1185. Cf. Engelmann "Der romanisch-kanonische Prozess" etc. 135.

108. Stein ubi sup.

109. Heilfron and Pick loc. cit.; Schwartz "Vierhundert Jahre deutscher Civilprozess-Gesetzgebung" 524.

110. Heilfron and Pick op. cit. I 459, note; Engelmann "Der Civilprozess: Allgemeiner Theil" 179.

111. Stein ubi sup. "Un caractère essentiel de la procédure française, c'est qu'elle est dirigée par les parties: le demandeur n'a pas besoin d'autorisation du tribunal pour assigner le défendeur, et c'est aux deux parties à chercher les moyens d'instruction les plus utiles à leur cause, et à les proposer aux juges dont l'office se borne à y présider, s'ils les jugent admissibles, et, dans le cas contraire, à les écarter." Garsonnet and Cézar-Bru "Traité de