/ & E.A.HAWKINS, Jr. UNIVERSITY OF CALIFORNIA AT LOS ANGELES Gift Of E. A. Hawking, Jr. CHICAGO, PRINCIPLES OF PLEADING IN CIVIL ACTIONS UNDER THE COMMON-LAW SYSTEM AND AS MODI- FIED AND APPLIED UNDER MODERN CODES AND PRACTICE ACTS INTRODUCED BY A SUMMARY VIEW OF THE PROCEEDINGS IN LEGAL ACTIONS BY HENRY JOHN STEPHEN, ESQ. MEMBER OF THE FIRST COMMITTEE APPOINTED TO REFORM ENGLISH PROCEDURE, HILARY RULES, 1834. SECOND EDITION. JAMES DEWITT ANDREWS AUTHOR OF ANDREWS' AMERICAN LAW; EDITOR OF WiiflON'a WORKS, COOLEY'S BLACK.STOKE, ETC, CHICAGO: CALLAGHAN AND COMPANY. 1901. COPYRIGHT, 1894, BY CALLAGHAN AND COMPANY. COPYRIGHT, 1901, BY CALLAGHAN AND COMPANY. STATE JOURNAL feDJTINQ COMPANY, AND STEUEOTYBERS, MADlaOJJ, WIS. P-/S8 EDITOR'S PREFACE. The investigation and observation on the part of the editor during the seven years which have elapsed since the first edi- tion of this treatise was published have convinced him that there is a greater similarity in the rules of allegation in vogue in the various states and in the varied forms of proced- ure than is generally affirmed by text writers, and that the common-law rules as formulated by our author, modified by the logical process of making the formal allegations correspond with the material facts, constitute the principal body of rules governing the mode of pleading in all forms of action, equitable as well as legal, under existing codes and practice acts. No other text-book, so far as the editor's observation goes, but treats common-law, equity and code pleading as though they were distinct systems, whereas in this treatise they are regarded as intimately associated and interdependent. There are at the most but three phases or forms of civil pro- cedure in the United States, viz. : code procedure similar to that introduced in New York, the new practice acts in Connecti- cut and Massachusetts, and the modified common-law system as seen in New Jersey, Michigan and Illinois. Most of the states have what is called the code, but the pro- cedure in points of practice differs quite as much between the various code states as do any of these from the other forms of procedure. In regard to the principles and rules of pleading the case is quite the reverse. In the preface to the former edition it was stated that one of the objects of the book was to make apparent 177188 iv EDITOR'S PEEFAOB. how little of substantial disagreement there is between the systems of pleading in use in tlie United States. In this edition an attempt is made to carry the investiga- tion a step further than was done in the former edition, and to point out the application of these rules of pleading in equity cases; and it is believed that it is made plain by example and authority that there is no system of equity pleading (using this term in its narrow sense) independent of and dif- ferent from the common-law system, but that on the contrary the same rules of allegation, with very slight variation, obtain in. both jurisdictions. In this no claim is made to entire origi- nality; Lube in his equity pleading has pointed out the close analogy between the common-law and the equity rules, but it will be seen that at the present time there is something more than analogy or similarity, and that the rules are in most cases identical. Indeed it will be difficult to find a rule of equity pleading, outside of the rules peculiar to bills of discovery (abolished by the codes and almost obsolete elsewhere), which was not, when adopted by the court of chancery, an established rule of common-law pleading. The choice of Stephen's text, rather than the preparation of a new treatise, was influenced by several controlling reasons. first, it is generally admitted that these rules are as much the law as though they had received the sanction of legislative enactment, for they have entered into and become a part of the warp and woof of American law by adoption. " Stephen " is universally cited by the compilers of dictionaries, the judges of courts, and authors of works upon pleading, under both code and common-law systems. His work is a legal classic ; it is a vade mecum to thousands of lawyers practicing under the code. A second reason influencing the choice was the peculiar adaptability of the arrangement of the work of Stephen to the purpose of constructing a work applicable alike, and EDITOR S PREFACE. V equally valuable, in all of the states. The component parts or essential elements of causes of action are not changed by the codes; neither has trial by jury been abolished; and the neces- sity for so framing allegations as to produce distinct issues of law and issues of fact for trial by judge and jury respectively still remains, and no new system of allegation is suggested by any of the codes. It follows that the substantial rules for framing the allegations of facts which go to make up the issue involved in causes of action and defenses are but slightly af- fected by the code. Third. The arrangement of Stephen's text made the work of stating the points of agreement or divergence between the code and common law and equity rule peculiarly simple and easy. As explained in his preface and introduction, Stephen treats his subject in a manner different from that of any writer who preceded him, in this: that he codifies the rules independ- ently of the forms of , action, and with the main idea that the system of pleading was not dependent on forms of action. It follows as of course that the abolition of forms of action did not abolish the rules of pleading. To this main plan he added another collateral feature ex- tremely useful to the present purpose. Chapter I of his book (chapter Y of this) explains the proceedings in an action from beginning to termination, and comprises a brief treatise upon practice. This enables the editor to present quite enough of explanation and modern authority to give a fair idea of the modern practice, and preserves enough of the ancient to ex- plain the evolution and development of the existing law. A consideration of these facts is sufficient to show that in order to present an acceptable treatise upon pleading applicable any- where, the work of Stephen must necessarily constitute the groundwork of it all; and that in view of the fact that prac- tically all of the text of " Stephen " has been quoted and cited by the authorities, it seemed best to give the original author- VI EDITOR S PREFACE. ity in the first instance, thereby doing justice to the author and presenting the reader a text which has upon it the " mint mark " of genuine authority. Even where the text has been modified, the original statement throws light on the reason and application of the rule. The text of the first edition has been in the main preserved ; but frequent interpolations have been made in order to present in the text the modern modification or amplification of the an- cient rule. The scope of the original work is enlarged by a brief introduction explaining the origin, object and development of common-law pleading, and its relation to modern reformed procedure. New chapters have been added upon the subject of " Joinder of Parties " and the " Election of Remedies," hav- ing for their object not simply the statement of the instances in which such joinder and election may be made, but rather to make clear the principles upon which the rules depend, and thus more thoroughly carry out the design which runs through the whole work. Dicey's English rules of joinder have been paralleled by the modern American rules wherever his are in- accurate or inapplicable to the present state of the law. The book has been divided into chapters and sectionized, in order that the scope, plan and arrangement may be clear and easily understood by students with whom " Stephen " has long been a favorite author. The citation of cases will, it is believed, be found sufficient in number and of such a character as to render the book of permanent and practical value. JAMES DE WITT ANDREWS. CHICAGO, June 15, 1901. AUTHOR'S PREFACE. The science of pleading, though vying with most other branches of our law in antiquity, and always among the high- est in professional estimation, has been among the last to re- ceive satisfactory illustration from the press. It is true that at early periods there were treatises on this subject, but their plans were confined and defective. The most important of these is the Doctrina Placitandi, published in the reign of Charles II. ; a work which, though extremely learned and elaborate, and for a long time justly considered as the cap- ital source of information upon pleading, amounts after all to no more than an extensive collection of adjudged points, classed without any skill of arrangement under titles in alpha- betical series. In more modern times the Digest of the Laws of England, by Lord Chief Baron Comyns, presented, under the title "Pleader," a more systematic compilation upon this subject than had previously appeared, comprising the sub- stance not only of t^he authorities collected in the Doctrina Placitandi, but also of the cases subsequently decided, and , reducing the whole under different heads upon a plan pecul- iarly scientific and masterly. It is, however, in its nature only a digest of authorities, and better adapted, therefore, to the objects of the practitioner than of the student. Afterwards appeared the edition of Saunders' Keports, by Mr. Serjeant "Williams, the notes in which comprise a mass of most valuable explanatory matter on the subject in question ; but, at the same time, consist only of detached commentaries on such different points of inquiry as happen to be suggested by the AUTHOR S PREFACE. text, without aiming at the character or possessing the ad- vantages of a regular treatise. It is to a writer of our own day that the honor is due of having first thrown effectual light upon the science of plead- ing by an elaborate work, in which all its different rules are collected, arranged in convenient divisions, and illustrated by explanation and example. The work here mentioned is the well known treatise on pleading, by Mr. Chitty; which no person, competent to appreciate the difficulty of the task performed, can ever peruse without high admiration of the learning, talent and industry of the author. This has been since followed by an able publication of Mr. Archbold, on " The Law Relative to Pleading and Evidence ; " comprising another regular treatise on pleading, compiled on a plan in the nature of a digest, (a) The two works last mentioned have left very little to be added to the stock of practical information on the subject of which they treat. But neither in these nor in any other publication has any attempt been hitherto made to develop systematically the principles of this science, or, in other words, to explain its scope and tendency, to select from the mass of its various rules such as seem to be of a primary and fundamental kind, and to trace the connection of these rules and show their bearing as parts of a general scheme or sys- tem. It is to this object that the present work is directed. The attempt was not only novel but difficult. The author had not only to collect, but in some degree also to trace and explore the principles of which he treats, and to subject the science of pleading to a new order or arrangement, such as (a) The preceding enumeration has been intentionally confined to the principal publications on this subject There have, however, been several treatises of minor bulk, containing general information on pleading. Among these ought to be noticed, The Summary of Pleading, and An Elementary Treatise on Pleading in Civil Actions the latter by Mr. E. Lawes. They are both of date prior to Mr. Chitty's work. AUTHOR S PREFACE. IX seemed to him best adapted to the exposition of these princi- ples in the clearest light. For that arrangement he has no authority to produce, but he persuades himself that the care- ful and intelligent reader will not fail to recognize the sound- ness of the analysis on which it is founded. It may be useful here to observe that while in other treatises the subject of pleading has been usually discussed in the order of declaration, plea, replication, etc., it is divided in the following pages in reference to the different objects or results which its rules are conceived respectively to contem- plate. In one .respect, at least, this deviation from the com- mon method is attended with evident advantage. It is an inconvenience of that method that the same rule requires to be often repeatedly noticed, in reference to each of the con- secutive divisions in the series of the pleadings, so that a doctrine once laid down with respect to the declaration is afterwards propounded in a different place, but in nearly the same form, when the replication comes to be considered. The plan adopted in the present publication avoids this incon- venience and presents the rules to the reader in an entire and single view. The nature of the work has led incidentally to the inser- tion, in the first chapter, of a summary and connected account of the whole proceedings in a suit. It is believed that the treatises to which students have hitherto had recourse for such elementary information have not been found to answer the purpose in a satisfactory manner ; and some hope is con- sequently entertained that this part of the work may prove particularly acceptable to that class of readers. CONTENTS. References are to sections. CHAPTER I. INTRODUCTION THE DEVELOPMENT AND RELATION OF SYS- TEMS The object of pleading 1 Definition 2 The plan .' 3 Utility of scientific pleading 4 The place of pleading in jurisprudence 5 Classification of English law 6 Modern reforms in procedure 7 The relation of common4aw pleading to existing systems 8 The identity of the equity and common-law rules and principles of pleading 9 The dependence of code pleading upon the principles of the common- law system 10 The rules of pleading not dependent on forms of action 11 Reason for technicality 12 The rise of the court of chancery 13 The court of chancery in America 14 New York and Pennsylvania procedure. 15 Distinctive features of code reforms 16 The systems contracted 17 The path of future reform 18 CHAPTER II. PARTIES TO ACTION& Outline of subject 19 Who may invoke the judicial power 20 Actions must be prosecuted by the real party in interest Who so re- garded Assignment and transfer of rights of action. ;. . 21 Privity 22 The name of plaintiff 23 Election of parties 24 Joinder of parties under the common law Plaintiffs in actions ex con- tractu 25 The rules for determining what are joint and several rights 26 Interest and property Definitions 27 Xll CONTENTS. References are to sections. Common-law and code rules as to joinder contrasted 28 Equity rules under the common law and the codes 29 All who are united in interest must join 30 A necessary plaintiff may be joined against his protest 31 Joinder of parties 32 Non-joinder of plaintiffs in action ex contractu 33 Misjoinder of plain tLTs ex contractu 34 Non- joinder of defendants ex contractu 35 Misjoinder of defendants ex contractu 36 Non-joinder of plaintiffs in cases ex delicto 37 Misjoinder of plaintiffs ex delicto 38 Non-joinder of defendants ex delicto 39 Several liabilities Several judgments One satisfaction Election . . 40 Misjoinder of defendants ex delicto 41 Statutes of amendments remove ancient dangers 42 CHAPTER III. SPECIFIC RULES AS TO PARTIES. Specific rulas for selecting parties 43 CHAPTER IV. ELECTION OF REMEDIES. Election of remedies 44 Utility of fictions 45 The doctrine illustrated 46 Grounds of the implication 47 Extent of the right 48 An election between inconsistent remedies is binding 49 The causes of action must be identical 50 Consideration governing selection of remedy 51 CHAPTER Y. CAUSES OF ACTION, FORMS OF ACTION, AND PROCEEDINGS IN ACTIONS. Primary rule of procedure 52 The principal object of pleading 53 Necessity for framing issues 54 The utility of forms of action 55 Preparation for pleading 56 The art of pleading 57 The transaction. 58 Right of action, cause of action, ground of action, and subject of ac- tion distinguished 59 The classification of actions 60 Tort defined Actions ex delicto and ex contractu distinguished 61 CONTENTS. References are to sections. The superior courts of England 62 Commencement of actions The original writ in England 63 Origin of forms of action 64 Forms of action 65 Writ of right 66 The writ of formedon 67 The writ of dower 68 The writ of quare impedit 69 Modern mixed actions 70 Forcible entry and detainer 71 The action of waste 72 The writ of entry 73 Trespass to try title 74 Personal actions 75 The action of debt 76 The action of account 77 The writ of covenant 78 The writ of detinue 79 The writ of trespass 80 The action of trespass upon the case 81 The action of assumpsit 82 The action of trover 83 Replevin, 84 Ejectment 85 Return of writ 86 Process 87 Appearance and pleading Ancient practice 88 Formation of issue 89 The record roll 90 Appearance Modern practice 91 Pleadings 92 Signing of pleading 93 The declaration or count 94 The order and manner of pleading 95 Classes of pleas 96 Pleas must be pleaded in due order. 97 A plea to the jurisdiction 98 A plea in suspension 99 A plea in abatement of the writ 100 Oyer of the writ 101 Pleas in bar. 102 Demurrer. 103 Arrival at issue 104 Accepting the issue 105 An issue 106 Course and extent of pleading 107 Pleas puis darreign continuance 1' Demand of view. . 109 XIV CONTENTS. References are to sections. Voucher of warranty 110 Oyer and prot'ert Ill Imparlance 112 Making up the issue 113 Of amendments 114 Entering the issue 115 The decision of issues in law 116 Trial of issues in fact 117 Trial by jury 118 Trial by jury (continued) 119 Burden of proof 120 Variance 121 The verdict j 122 Bill of exceptions 123 Demurrer to evidence 124 General and special verdict 125 Special verdict Special findings 126 Proceedings after verdict 127 Other modes of trial 128 The judgment 129 Writs of execution 130 Writs of error 131 CHAPTER VI. OF THE PRINCIPAL RULES OF PLEADING. The object of pleading 132 The origin of coming to issue 133 Singleness of issues 134 Certainty of issue 135 CHAPTER VII. OF RULES WHICH TEND SIMPLY TO THE PRODUCTION OF AN ISSUE. RULE L After the declaration, the parties must at each stage demur, or plead by way of traverse, or by way of confession and avoidance. . . 137 L Of demurrer 138 1. Of the nature and properties of a demurrer 138 2. Of the forms of demurrer 139 8. Of the effect of demurring 140 4 Of the effect of pleading over without demurrer 141 Of aider, by verdict 142 Of aider, by the statutes of jeofails and amendments 142 5. Of the considerations which determine the pleader in his election to demur or plead 143 CONTENTS. XV Peferences are to sections. H. Of pleadings 144 1. Of the nature and properties of traverses or denials 144 Of common traverses 144 Of general issues in various actions 145-152 Observations on the general issue 153 Special pleas 154 Of the traverse de injuria 155 Of special traverses 155-160 Of traverses in general 161-163 2. Of the nature and properties of pleadings in confession and avoidance 164 Of pleas in justification or excuse, and pleas in discharge. 164 Of color 164 3. Of the nature and properties of pleadings in general, with- out refereilce to their quality, as being by way of trav- erse, or confession and avoidance 165 Of protestation 165 Exceptions to the rule 166 In case of dilatory pleas 166 pleadings in estoppel 166 new assignments , 167 RULE IL Upon a traverse or denial, issue must be tendered 168 Different forms of tendering issue 168 Another form of the rule, viz., that upon a negative and affirma- tive the pleading shall conclude to the country, but otherwise with a verification 168 Exception that when new matter is introduced, the pleading should always conclude with a verification 168 RULE IIL Issue, when well tendered, must be accepted 169 Of the similiter 169 Of the joinder in demurrer 169 CHAPTER VIII. OF RULES WHICH TEND TO SECURE THE MATERIALITY OF THE ISSUE. RULE L Traverse must not be taken on an immaterial allegation 170 But where there are several material allegations it is in the op- tion of the pleader to traverse which he pleases 171 RULE IL A traverse must not be too large nor too narrow 172 But a party may, in general, traverse a material allegation of title or estate to the extent to which it is alleged, though it needed not to be alleged to that extent 1 Of a traverse too narrow *'* b XVI CONTENTS. References are to sections. CHAPTEE IX. OF RULES WHICH TEND TO PRODUCE SINGLENESS OR UNITY IN THE ISSUE. RULE L Pleadings must not be double. 175 Of the nature of duplicity, in general 175 1. Singleness relates to a single claim .' . 176 2. In case of several defendants 177 Rules subordinate and illustrative '. 178 1. A pleading will be double that contains several answers, whatever be the class or quality of the answer 178 2. Matter may suffice to make a pleading double, though it be ill pleaded 178 3. But matter immaterial will not operate to make a pleading double 179 4. Material matter ill pleaded may 180 5. Matter that is pleaded only as necessary inducement to an- other allegation will not make a pleading double 181 6. Nor matters, however multifarious, that together constitute but one connected proposition or entire point 182 The general issue as applied is a doable plea 183 Of several counts 184 Examples of several counts l w 5 For a single cause 186 Common counts 187 Of several pleas 188 Several replications 188 Limitations of the rule 189 RULE IL It is not allowable both to plead and to demur to the same matter 190 CHAPTER X. OF RULES WHICH TEND TO PRODUCE CERTAINTY OR PARTIC- ULARITY IN THE ISSUE. RULE L The pleadings must have certainty of place 191 Ancient reason for law of venue 192 Modern reason for the rule 193 Local and transitory actions 193 RULE II. The pleadings must have certainty of time 194 RULE III. The pleadings must specify quality, quantity and value 195-198 RULE IV. The pleadings must specify the names of persons 199 Effect of misnomer . 200 CONTENTS. Beferences are to sections. r ^ RULE V. The pleadings must show title OQI L Of the case where a party alleges title in himself, or in another whose authority he pleads 202 1. Of alleging a title of possession 203-205 2. Of alleging title in its full and precise extent 200 Of the allegation of the title itself. v 206 Of showing its derivation 207 As to estates in fee simple 207 As to particular estates 208 Where a party claims by descent or by conveyance. . 209 3. Of alleging a general freehold title liberum tenementum. . . 210 IL Of the case where a party alleges title in his adversary 211, 212 On issue title must be strictly proved. 213 Exception to rule. No "title need be shown where the opposite party is estopped from denying it 214 RULE VI. The pleadings must show authority 215 RULE VIL Jn general, whatever is alleged in pleading must be alleged with cer- tainty 216 On issue the allegation must be proved as laid 217 SUBORDINATE RULES TENDING TO LIMIT OR RESTRAIN THE DEGREE OF CERTAINTY. 1. It is not necessary in pleading to state that which is merely matter of evidence 218 2. It is not necessary to state matter of which the court takes notice ex officio 219 3. It is not necessary to state matter which would come more prop- erly from the other side 220 4. It is not necessary to allege circumstances necessarily implied 221 5. It is not necessary to allege what the law will presume 222 6. A general mode of pleading is allowed where great prolixity is thereby avoided 223 7. A general mode of pleading is often sufficient where the allegation on the other side must reduce the matter to certainty 224 8. No greater particularity is required than the nature of the thing pleaded will conveniently admit 225 9. Less particularity is required when the facts lie more in the knowl- edge of the opposite party than of the party pleading 226 10. Less particularity is necessary in the statement of matter of induce- ment or aggravation than in the main allegations 227 11. With respect to acts valid at common law. but regulated as to the mode of performance by statute, it is sufficient to use such cer- tainty of allegation as was sufficient before the statute 228 XV111 CONTENTS. References are to sections. CHAPTER XI. OF RULES WHICH TEND TO PREVENT OBSCURITY AND CON- FUSION IN PLEADING. RULE L Pleadings must not be insensible nor repugnant 229 RULE II. Pleadings must not be ambiguous, or doubtful in meaning, and when two different meanings present themselves, that construction shall be adopted which is most unfavorable to the party pleading 280 Application of this rule 230 Degrees of certainty required 231 Of negative pregnant 232 RULE IIL Pleadings must not be argumentative 233 Two affirmatives 234 Two negatives 235 RULE IV. Pleadings must not be in the alternative 236 RULE V. Pleadings must not be by way of recital, but must be positive in their form 237 RULE VL Things are to be pleaded according to their legal effect 238 RULE VII. Pleadings should observe the known forms of expression, as contained in approved precedents 239 RULE VIII. Pleadings should have their proper formal commencements and con- clusions 240 Anomalous forms of concluding 241 A defect or informality in concluding is ground for demurrer. .... 242 RULE IX. A pleading which is bad in part is bad altogether 243 CHAPTER XII. OF RULES WHICH TEND TO PREVENT PROLIXITY AND DELAY IN PLEADING. RULE I. There must be no departure in pleading 244-246 In declaring 244 CONTENTS. XIX References are to sections. There must be no departure In pleas 244 In replications 244 In rejoinder 245 RULE II. Where a plea amounts to the general issue it should be so pleaded 247 RULE IIL Surplusage is to be avoided 248 Is not reached by demurrer but by motion 249 CHAPTER XIII. OF CERTAIN MISCELLANEOUS RULES. RULE L The declaration should commence with a recital of the original writ. . 250 RULE II. The declaration must be conformable to the original writ, see 53. RULE ILT. The declaration should, in conclusion, lay damages and allege produc- tion of suit 251 RULE IV. Pleas must be pleaded in due order, see 97. RULE V. Pleas must be pleaded with defense 252 RULE VL Pleas in abatement must give the plaintiff a better writ or bill 253 RULE VII. Dilatory pleas must be pleaded at a preliminary stage of the suit 254 RULE VIIL All affirmative pleadings which do not conclude to the country must conclude with a verification 255 RULE IX. In all pleadings, when a deed is alleged under which the party claims or justifies, profert of such deed must be made 256 RULE X. All pleadings must be properly entitled of the court and term 257 RULE XL All pleadings ought to be true Sham pleading 258 The doctrine of res adjudicata 259 XX CONTENTS. CHAPTER XIV. CONCLUSION. Sec. The merits of the system of pleading 260 1. Utility of an issue, p. 483. 2. An issue a peculiarity of the common law, p. 484, 3. An issue necessary to jury trial, p. 484, The Scottish method, p. 484. The English method, p. 485. 4 Advantages and defects, p. 486. a. Demurrers for form, p. 437. b. Singleness of issue Cured by allowing several counts and sev- eral pleas, p. 438. c. The general issue does not notify and is double Effect of bill of particulars, p. 440. Page. APPENDIX 493 Editor's Note A., Joinder of Parties 493 Editor's Note B., Joinder of Actions 497 Author's Notes 1 to 88 inclusive 504-574 Editor's Note on Amendments ... . . . . : 530 TABLE OF CASES. References are to pages. Ackley v. N. C. C. Ry. Co., 4Sorbie v. Perk. 12 M. & W. 249; Hennakir v. Turner, 4 B. & C. 146; Wooten v. Steffenoni, id. 134; 157; Loomis v. Brown, 16 Barb. 328; Knightly v. Watson, 3 Ex. 716. Alexander v. Jacoby, supra. 4 50 PARTIES TO ACTIONS. [ 27. they are required to join or not, according to the language used. 1 "When a promise to one partner was declared upon by the firm to be concerning the firm business, and the correspond- ence, which was the evidence of the cause of action, showed it to relate to firm business, the firm was allowed to recover. 2 And when a carrier contracted with two to assist him with horses of which each owned two, the cause of action for work and labor was held several.* The student will find the rules as to who are joint or sev- eral covenantees stated elaborately in books cited below. 4 The rules depend upon the interest which the parties have in the cause of action, and are affected by the code provision that the real party in interest shall bring the action. 5 The later cases constantly refer to and rely upon these old cases, whether the rules as to ioinder are closely followed, as in the common- iL ft/ law states, 6 or where they are modified, as in the code states, 7 or in England, where the reform may be said to be the .most sweeping. 8 It may be appropriately mentioned here that the rule was the same in actions ex contractu and ex delicto: that all those whose legal interest is joint must, if living, join in the action. 9 27, Interest and property Definitions. The interest which one or several per sons have in things real^personal and chases is the controlling element in determining who shall be parties in actions. The common law, the equity rules and the codes con- stantly use the word "interest" as of controlling influence as to joinder. The proper legal meaning of the term "interest" should be understood in order that the real party in interest may be rec- ognized. 1 Anderson v. Morlider, 1 East, 497. 23 Ohio St. 358; I, B. & W. Ry. Co. 2 Garrett v. Handley, 4 B. & C. 664. v. Adamson, 114 Ind. 283. * Smith v. Hunt, 2 Chitty, 142. 8 In Hannay v. Smurthwaite, 69 JL. < 2 Saund. 16, and note; 1 Eng. RuL T. R. (N. S.) 677 (see Appendix, " A "), Cas. 159. the student will find traced the 6 Duncan v. Willis, 51 Ohio St. 433. course of reform in England. See 6 See 1 Eng. RuL Cas. 156. also editorial comment on same in 7 Clark v. Cable. 21 Mo. 223. See Law Times, Aug. 11, 1894, 330. argument in Alexander v. Jacoby, 9 Harris v. Swanson, 62 Ala. 299. 27.] PARTIES' TO ACTIONS. 51 Property is to be distinguished from title, 1 or from the land or chattel or chose which may be the subject of property. Property and interest are very nearly synonymous. Property is the right or interest which one has in or to things. 2 Interest, several kinds: If one person combines in himself complete ownership, i. e. t title, interest and possession, he is said to hold in severalty.* If several have rights in or to the thing, their titles and the nature and duration of their ownership determine the character of their interest. first, considered with reference to their number and their con- nection with the matter involved. The sole and complete owner- ship may be in one, when it is called in severalty. 4 If several persons have some interest, then they hold either as joint ten- ants, 5 tenants in common, 6 or as parceners in real estate. Second, with reference to the nature of the interest. (a) One person may have the right of possession while an- other has the ultimate ownership, in which case the nature of the injury will determine which person has sustained it. 7 (5) The legal title may be in one and the equitable owner- ship may be in another, e. g., trustee and cestui que trust; and in covenant under seal, the law regards the holder of the legal title as the real party. In an equitable suit, however, the pres- ence of all parties may be necessary in order to afford complete relief, in which case both are real parties in interest. 8 Having noticed the things which controlled in framing the rules of joining parties in actions under the common law, we may properly notice two rules of common-law pleading as to joinder and the equity rules, and then we may assume to have a fair understanding of the principles governing the subject. 1 Springfield Fire & M. Ins. Co. v. 6 Non- joinder of tenants in corn- Allen, 43 N. Y. 387. mon must be taken advantage of by 2 Wynehammer v. People, 13 N. Y. plea in abatement. Sedgnorth v. 378; Easton v. B., C. & M. Ry. Co., 51 Overend, 7 T. R. 279, 1 Eng. RuL Cas. N. H. 504, 12 Am. R. 147; Rigney v. 157. Chicago, 102 III 64; Metropolitan Ry. 7 The owner of the freehold let for Co. v. Chicago W. D. Ry. Co., 87 III a period cannot sue for a damage to 818. the leasehold or join with the occu- 3 2 Cooley's Black. (3d ed.) *178. pant. Penfield v. Rich, 1 Wend. 380. Andrews' Am, Law, 1004 et seq. s Story, Eq. PL, p. 207 ; Dubs v. Egli, Id. 167 III 514. 52 PARTIES TO ACTIONS. [ 28. 28. Common-law and code rules as to joinder contrasted. The codes provide that all persons having an interest in the subject-matter of an action and in obtaining the relief de- manded may join. The language is may, while the other sec- tion is that all whose interests are united must join. There is considerable conflict of decision in the code states as to whether the first clause applied to legal or only to equitable ac- tions; but there is a misapprehension on the part of some authors of treatises upon code pleading as to the state of the common law in regard to joinder of parties. Thus, Professor Bliss says: "Nor at common law can parties having only an interest in the subject of the action and in the remedy be united as plaintiffs unless that interest be joint" l Again, he mentions the common-law rule as confining the union to those having a joint interest; 2 and further on he says: "It shocks the prejudice of the common-law pleaders to speak of a union of plaintiffs when there is not a joint interest." 3 So, also, Pro- fessor Pomeroy, in his work which is so admirable for style as well as for the originality of some of its propositions, states that the common law was peremptory in the requirement that separate holders of rights must sue alone. 4 Again, "At com- mon law the different holders of several rights must sue sepa- rately although the rights were created by a single instrument, and although there might be some kind of a common interest." 5 This view of the common law is entirely erroneous. And whether Judge Comstock was right or not in his remark that " The authors of the code, in framing this [the one we are no- ticing] and most of its other provisions, appear to have had some remote knowledge of what the previous law had been," 6 it is certain that the expounders just mentioned were entirely in ignorance of two rules of the common law as to joinder. 7 It was early established as a rule of pleading that when by an act several persons sustained a common damage, though their interests were not joint, it might be considered as a joint 1 Code PL, 61. 7 The case of Hannay v. Smurth- 2 Id., 73. waite is of so much importance that 3 Id., 74. it has been inserted at large in the 4 Pomeroy's Code Rem. (3d ed.), Appendix. It should be carefully 184. studied, as summarizing the ancient 8 Id., 199. Cf. supra, 25, 26. and modern learning on the subject 6 17 N. Y. 604. of the joinder of parties. 28.] PARTIES TO ACTIONS. 53 damage, and they were allowed to join in a suit ex contractu or ex delicto. 1 The cases cited are strikingly like the case cited by Pomeroy at section 202, 2 and illustrations put by Bliss.* While the rule of the common law was not so broad as this provision of the code has in some cases been construed to be, it was broad enough to allow a joinder in cases where the plaint- iffs had a common interest in both the subject of the suit and the damages, though such interest was not joint or equal in degree. In such cases as supposed by Bliss 4 there was never any trouble before the code, for when several were injured by a nuisance and desired to prevent it, a court of equity was the appropriate tribunal. So in the case of different creditors, as will fully appear when we consider the equity rules of joinder. 5 In the case of tenants in common, if they desired lo prevent a trespass, and it was of such a nature that the law would inter- pose, there was no trouble as to joinder. The case of joinder as to tenants in common never presented any difficulty, and is not at all affected by the provision we are discussing. The case of Coryton v. Lithebye 6 was a case where several distinct owners of separate mills, situated in the manor of Calliland, brought an action against Coryton because he did not grind his corn at either mill, when by the custom, based upon a prescription, all the inhabitants were bound to grind at one of the mills in the manor. The defendant objected be- cause the ownership of the mills was entirely distinct and separate, and neither could tell his damage; yet they were al- lowed to join because the damage was joint. Not that they were joint owners of the damage, but they were both inter- ested in the subject and the relief demanded. So in Weller v. Baker? twelve dippers at Tunbridge Wells, who obtained the right to dip by appointment, and had no joint interest in the earnings, brought a joint action against one not appointed for disturbing them in their employment. The court held that, though they were each severally entitled to their own several earnings, they were jointly concerned in point of interest, and 1 Dicey on Parties (3d Am. ed.). 2L oom i s v. Brown, 16 Barb. 335. rule 80, p. 401; Coryton v. Lithebye, 3 Code PL, 73. 2 Saund. 112-117; Weller v. Baker, 2 Code PL, 73. Wils. '423; Hoggens v. Gordon, 3 6 Post, 54. Q. B. 466; Vaux v. Steward, 2 Leon. 6 2 Saund. 112-117. 12. 7 2 Wils. 414. 54: PARTIES TO ACTIONS. [ 29. it was a hurt done to them all. Again, in Vaux v. Steward? an action of aszumpsit brought by several separate owners of cattle which had been distrained, the defendant had promised to procure back the cattle by a time certain but had not; it was held that though the interest of each was several, and the thing to be done several, yet the contract and consideration were joint and the parties could join. These cases cover the proposition that there might be a join- der in actions at law by parties who were severally interested in the subject of the suit, provided they had a common inter- est in the relief sought. The cases usually cited by code writers,, except such as are based upon causes of action which would have been called equitable, do not extend the rule. Those which extend the rule are cases which but for the code would have been deemed equitable actions. 2 The correct rule is as stated by Maxwell in his work on Code Pleading that a joint action cannot be maintained upon several distinct and separate matters, even though they arise out of the same transaction, unless the plaintiffs have a com- mon interest in the question at issue. 3 29. Equity rules under the common law and the codes. The limitations set upon the privilege of joining as plaintiffs in equitable actions will make still clearer the common-law rule above referred to, and the provision of the code permit- ting joinder. The case most commonly referred to is fellows v. fellows* and Judge Sutherland approved the rule as to joinder in equity recognized by the chancellor in BrinkerJwff v. Brown? thus: "The forms of proceedings in chancery, or the power of the court to mold its decrees so as to suit the various equities of the case established by the proof, enable it advantageously to settle and adjust in a single suit rights and interests which, according to the rules of pleading in the courts of common law, would necessarily result in various issues incapable of being tried in a single cause and disposed i Stated, 2 Saund. 117c. The above \ 8 Maxwell's Code PL 30. cases are referred to in Hannay v. 4 4 Cow. 682 (1825). Smurthwaite, post, Appendix. 5 6 John. Ch. 139. See Boyd v. 2Loomis v. Brown, 16 Barb. 325; Hoyt, 5 Paige Ch. 65, Lawy. Ed., vol. 3 r Rutledge v. Corbin, 10 Ohio St. 478; p. 629. School District v. Edwards, 46 Wis. 150. 29.] PARTIES TO ACTIONS. 55 of in a single judgment. But notwithstanding this disposition of a court of equity to prevent the multiplication of suits, it will not permit several plaintiffs to demand by one bill sev- eral matters perfectly distinct and unconnected against one defendant, nor one plaintiff to demand several matters of dif- ferent natures against several defendants; " and he affirms the reason of the rule " to prevent confusion and to preserve some analogy to the comparative simplicity of a declaration at common law." And he affirms the ancient rule that uncon- nected parties may be joined in a suit where there is one common interest among them all, centering in and upon the issue in the cause. It is not sufficient that the parties have a common interest in some one or more items; they must have a common interest, not in a particular item or isolated charge in the bill, but in the main point in the cause. These decisions are all based upon several ancient decisions of the English courts. 1 The principles have not been changed or innovated upon. The only question has been as to their application. These principles which we have just noticed were reaffirmed by the court of appeals of New York in a case arising under the code. 2 We have seen that several separate owners might join at law in a suit to recover for the violation of a common right which did them a common damage, although it could not be ascertained what the damage to each might be; and in the case cited Lord Hale gave as one of the reasons that there might not be a double recovery of damages. 3 So, in equity, several separate owners of separate properties may join to abate a common nuisance. 4 The student should not fail to observe that in all these chancery cases there were equitable grounds for relief; that is, there was the equitable right to an accounting for a viofated trust, or the appeal to equity to enjoin a nuisance or to prevent a trespass which would con- stitute an irreparable damage. None of them were suits in- iWard v. Duke of Northumber- 'Coryton v. Lithebye, SSaund. 112, land, 2 Anstr. 469; Mayor of York v. 117. Pilkington, 2 Atk. 302. 4 Peck v. Elder, 3 Sandf. Ch. 126; 2 N. Y. & N. H. R Co. v. Schuyler, Reed v. Gifford, Hopkins' Ch. 416. 17 N. Y. 592. See also Murray v. Hay, 1 Barb. Ch. 59; Wood v. Perry, 1 Barb. 114. 56 PARTIES TO ACTIONS. [ 30, 31. volving the mere recovery of damages for a past injury uncon- nected with a trust or fiduciary relation, nor were any of them, for the trial of a title. 1 The remarks of the editor of the London Law Times in re- lation to the suit of Hannay v. Smurthivaite* will apply to the question of joinder as we have discussed it. " The moral of the case," he says, " is that, wide as are the powers which liti- gants now possess, a writ of summons is not like an omnibus, into which any one can get as it goes along." No intention being evinced to destroy the integrity of the cause of action or to abrogate the principles which obtained at common law as to joinder, no one can properly construe and apply the provisions of codes without an understanding of the common-law rules. . 30. All who are united in interest must join. In ref- erence to the second of the code provisions, namely, that all parties who are united in interest must be joined, all agree that this is merely a re-enactment of the common-law rule. 3 31. A necessary plaintiff may be joined against his pro- test. It is claimed that the third provision, namely, that if the consent of any one who should have been joined as plaintiff cannot be obtained he may be made defendant, the reason thereof being stated, has made a great change and vast im- provement over the common-law rules because of the lack of any remedy at common law in such cases. Thus Mr. Bliss says that unless the common-law rule is modified by this sec- tion the rule remains as at law. He lays down the proposition that if one having a joint right refused to prosecute, then there was no remedy at law. 4 Again, he says there is no way by which a party to a joint right can enforce it, either to the en- tirety or to the extent of his interest, without the co-operation of all survivors who are joined with him in interest. 5 So, also^ Professor Pomeroy says the joint right being conceived of as a single entity, although residing in two or more persons, the judgment must establish or defeat it as a whole. The notion of severing it and establishing a part in favor of certain plaint- iffs and defeating a part could not be entertained. Again, that 1 See Worthington v. Waring, 157 8 Duncan v. Willis, 51 Ohio St. 433. Mass. 421, 20 L. R. A. 342. Bliss, Code PI. (2d ed.), 62. 2 69 L. T. R. (N. S.) 677. Id. 31.] PARTIES TO ACTIONS. 57 all persons jointly interested must unite as plaintiffs, and no one of them could be permitted to sue alone. 1 These expressions are cited to show that there is an evident misconception resulting from the fact that these learned au- thors were not familiar with several rules of the common law relating to joinder, while their opinions have in some jurisdic- tions passed as law. 2 It is a general rule of common-law pleading that should one who was a necessary party plaintiff refuse to bring an action, the beneficial parties have a right to use his name without his consent and against his protest on giving indemnity. This was a familiar rule in the case of the assignment of choses in action. 3 So in an equity case it was held that there might be cases where a party was a necessary party plaintiff, in which case his name could be used without consent. 4 The rule is expressly affirmed in many cases at law, in vari- ous forms of action, that, where one necessary joint plaintiff refuses to sue, his co-obligee or promisee might use his name against his consent. 5 In cases at law the rule was constantly applied. Thus, in Sweigart, v. Berk* Tilghman, J., says: "The action (which was debt upon a bond) may be brought on the penalty of the bond in the name of all the obligees and the judgment entered in such manner as to secure the separate interests of each. The action may be supported, although some of the obligees have received their shares, because the bond is forfeited unless they have all been paid. It was objected that those who had been paid might refuse to join in the action or might release the obligor; but the court would permit those who were not paid to make use of the names of the other obligees against their consent; neither would their release be suffered to be set up 1 Code Rem., 193. son, 62 Ala. 299 (action for statutory 2 Bank of Central City v. Hummel, penalty); Darling v. Simpson, 15 Ma 14 Colo. 260-75, quotes Pomeroy's 175 (assumpsit); Hays v. Lasater, 3 ode PL, 199. Ark. 567 (covenant on bond); Wright 3 Mountstephen v. Brooke, 1 Chitty, v. McLemore. 10 Yerg. 235 (assumpsit 390; Winslow v. Newland, 45 III 145; on note); Gray v. Wilson, Meigs, 394 Sumner v. Sleeth, 87 111. 500. (assumpsit); Sweigart v. Berk, 8 S. < Hargrave v. Lewis, 6 Ga, 207. & R. 308 (debt on bond). Jamison v. Colburn, 1 Stew. & P. 6 8 S. & R. 30a 253 (writ of error); Harris v. Swan- 58 PARTIES TO ACTIONS. [ 31. in bar of the action. It may be resembled to the case of an assigned chose in action where the action was brought irrthe name of the assignor for the use of the assignee ; there the re- lease of the assignor would not be regarded. A release in such a case would be collusion." In Harris v. Swanson l the court said : " All courts have an inherent power ... to protect the rights, and interests of those who have "beneficial interests in the subject-matter of suits." In Gray v. Wilson? which was assumpsit for money belong- ing to two jointly, one accepted payment for his share and the other brought suit in the name of both. After suit the one who had been paid compromised the suit and caused it to be dis- missed ; the dismissal was set aside, the court saying that the party who had been paid had no right to compromise the suit and dismiss it without the consent of his co-plaintiff. If he had received satisfaction for his part of the amount claimed, still the other plaintiffs had the right to prosecute the suit in the name of all three for their use. In Wright v. McLemore? another Tennessee case, it was said that the co-plaintiff refusing might have released his interest in the note, but he could not be heard to say that he would not permit his co-obligee to use his name in connection with his own to enforce the contract so far as he was interested therein ; otherwise, in all cases of contract joint as to the payees, the obstinacy or fraud of one might defeat the remedy of the other. The case also was one where one of the parties stood in the position of the assignee of the chose. These cases show the error of the notion that the section of the codes allowing parties who refuse to join to be made par- ties defendant was necessary by reason of the technicality of the common law. There is no room to speculate as to the intention of the com- mittee who prepared the code, for under section 99 of the orig- inal draft of the code the committee have placed this note: " Conformable to the rule prescribed by the supreme court of the United States for suits in equity;" and while the language of the section is broad enough to apply to any form of action, it would be absurd to hold it intended to apply to that to which 162 Ala. 299. 2Meigs,394 "lOYerg. 235. 32.] PARTIES TO ACTIONS. 5$ it was essentially unnecessary and inapplicable. The court rule referred to was merely a re-enactment of what was already the law in most equity cases. 1 The position sustained by the authorities just cited does not in any measure contravene the rule of law that a release by one joint obligee is a bar to an action by any or all. 2 One obligee might receive the payment for the debt and execute a release, and this would, whether at common law or under the code, destroy the cause of action and be the basis of a plea in bar. 3 Receiving payment by one joint promisee or obligee of his share of the debt before suit brought had the effect of destroying the joint nature of the contract as to him. There was no rule of law against all of the parties agreeing to a sev- erance of what was originally a joint obligation ; and in case of a payment of one share before suit brought, and suit upon the obligation by the other obligees without joining the one who had received payment, the consent of all to the severance was implied from the acts of the parties, 4 but after suit one could not compromise the suit and dismiss it without the con- sent of the other. 5 It is quite apparent that the two writers on Code Pleading to whose language reference has been made have overlooked these provisions of the common law, and that all their remarks are based upon an erroneous assumption of premises. Mr. Pom- eroy remarks that some of the judges hold that no change has been made in the common-law rules as to the joinder of plaint- iffs. 6 Professor Bliss is laboring under the same misapprehen- sion. It is possible that the opinion of one reacted on the opinion of the other, and their opinions have had some weight with the judges of different courts. 32. Joinder of parties. " It is a rule as old as the science of pleading itself, that in declaring in actions on contracts there *See Andrews v. Malpermera, 7 v. Walsh, 2 Mass. 405; Baker v. Jew- Cal. 330. ell, 6 Mass. 460; Beach v. Hotchkiss, 2 C. & N. W. R, Co. v. Nichols, 57 2 Conn. 697. 111. 467; Wright v. McLemore, 10 * Gray v. Wilson, Meigs, 394. Yerg. 235; Austin v. Hall, 13 Johns. 6 Code PI., 204, citing Rainey r. 286; Hall v. Gray, 54 Ma 230. Smizer, 28 Mo. 310; Voorhis v. Child, s Wright v. McLemore, 10 Yerg. 17N.Y.354; Hairecht v. Pemberton, 235; Hall v. Gray, 54 Me. 230. 4 Sandf. 657; Van Horn v. Emerson, * Stedman v. Shelton, 1 Ala. 86; Hoi- 13 Barb. 526. land v. Weld, 4 GreenL 455; Austin 60 PARTIES TO ACTIONS. [ 33, 34. must not be too few or too many plaintiffs. If there be it is fatal to a recovery." l Having examined the principles which control and which obtained in determining the question of the proper joinder of parties in actions, it remains to consider somewhat the application of these principles to different in- stances, bearing in mind that we are not here endeavoring to particularize to such a degree as to enumerate every special instance. 33, Non-joinder of plaintiffs in actions ex contractu. In actions ex contractu, where several are jointly interested, as we have seen, the cause of action is wholly in them all, and if there is a non-joinder of one who should be a party plaintiff in an action in form, ex contractu, the consequences at common law were serious, for the defendant, if it appeared on the face of the pleading, might demur, 2 or if the action were upon A deed he could crave oyer of the deed and then demur; 3 or he could plead the non-joinder in abatement ; 4 or it could be taken advantage of under the general issue; 5 or if the record and evidence made the non-joinder appear to the court, the defend- ant might after verdict move in arrest of judgment, 6 or the same might be taken advantage of upon a writ of error. 7 As we have seen, joint tenants in a contract relating to their joint estate or to an entire benefit must join, but mere nominal or ostensible partners having no interest, and dormant partners having no interest, need not be joined. As to tenants in com- mon, the general rule is that they cannot join or be joined in real or mixed actions unless in cases for the recovery of an entire indivisible thing. 8 34. Mis joinder of plaintiffs ex contractn. As to the misjoinder of plaintiffs in actions ex contractu, the consequences are equally serious, for misjoinder might be taken advantage of in the same manner. 9 1 Starrett v. Gault, 165 HI 101. * Ehle v. Perdy, 6 Wend 629. 2 Eccleston v. Clipsham, 1 Saund. 6 Dinet v. Reilley, 2 I1L App. 316. 153, n.; Cabell v. Vaughan, 1 Saund. 7 Ehle v. Perdy, supra; Dinet v. 291, n. ; Hicks v. Braunton, 21 Ark. Reilley, supra; I Saund. 291 ; Dement 189; Pitkin v. Roley, 43 N. H. 139. v. Rokker, 126 111. 174. See also Dock- See Baker v. Jewell, 6 Mass. 46, 4 Am. wray v. Dickenson, 1 Eng. Rul. Cases, Dec. 162. 156. 1 Chitty's PL 13, 14. 8 Malcolm v. Rogers, 5 Cowen, 188, 4 Hicks v. Braunton, supra; Pitkin 15 Am. Dec. 464; 1 Chitty's PI. 12. v. Roley, supra. 9 1 Burr. Pr. 64; Cabell v. Vaughan, 35, 36.] PARTIES TO ACTIONS. 61 35. Non-joinder of defendants ex contractn As to the joinder of defendants in actions ex contractu, if the contract or interest was joint, all should properly be joined ; if several, each should be sued alone; or if the interest or contract was joint and several, the plaintiff may elect, but had not the right to sue an intermediate number. 1 But this last proposi- tion must be taken in a restricted sense. The only way of taking advantage of the fact that a plaintiff was suing the in- termediate number was by pleading in abatement, unless that fact appeared upon the record, 2 in analogy to the case of a non- joinder. In case of the non-joinder of a defendant who should properly have been joined, the other defendants should take advantage of it by a plea in abatement, 3 unless the defect appears upon the face of the declaration, in which case advantage may be taken of it at any time even upon error. 4 36. Misjoinder of defendants ex contractn. In case of the joinder of too many defendants, this defect may be taken advantage of at any time by plea in abatement or demurrer, motion for a nonsuit, 5 motion in arrest, or on error. 6 2 Saund. 16a; Hennies v. Vogel, 66 the case of Rice v. Shute, and espe- 111. 401; Fogg v. Virgin, 19 Me. 552, cially the notes to the latter case in 36 Am. Dec. 757. See also 1 Eng. Rul. 2 Sm. Ld. Cas. 1405-1416. no reason Cases, 166 and note. Under the New is found for changing the statement York practice, if the defect appears of the text. The decision referred of record a failure to object is a to is Sinsheimer v. Skinner Manuf. waiver. Kelley v. Jay, 79 Hun, 535. Co., 54 111. App. 151. See also Dam- 1 1 Chitty's PL 143. ron v. Sweetser, 16 111. App. 342, sus- 2 1 Saund. 291/. taining the text." The case having 8 Rice v. Shute, 2 Burr. 261; 1 been taken to the supreme court, Smith's L. C. 1405; Backentors v. that tribunal reversed the decision of Stahler, Adin'r, 33 Pa. St. 251, 75 the appellate court and ruled in favor Am. Dec. 592. of the proposition in the text, citing 4 Swigart v. Weare, 37 111. App. 259; it Sinsheimer v. Skinner Mfg. Co., Cummings v. People, 50 111. 132. 165 111. 116; Thompson v. Strain, 16 As to this last proposition there is 111. 369. Of. 1 Eng. Rule Cas. 173, decided contrariety of opinion. In American note. the first edition of this book the ed- The cautious practitioner should re- itor was obliged to insert the follow- examine the question in the light of ing note: " Since section 23 was ster- the decisions in his own jurisdiction. eotyped I have seen the proof-sheets 6 1 Burr. Pr. 169; Hennies v. Vogel, of a decision of the Illinois appellate 66 III 401; Manahan v. Gibbons, 19 court contrary to the text; but after Johns. 109. carefully examining that case and 6 1 Chitty's PL 44, 62 PARTIES TO ACTIONS. [ 37, 38. 37. Non-joinder of plaintiffs in cases ex delicto. Ordina- rily, where the injury is to property or property rights and the interest is joint, those jointly owning should be joined as plaintiffs; l but if the interest is several and the damage merely joint, the plaintiffs may join or sever, as we have seen. 2 Tenants in common are obliged to join in trespass quare -clausum. 3 The consequences, however, of a non-joinder were never serious ; for while the defendant might compel the plaint- iff to join all who were joint in interest, he could only do so by a plea in abatement; and it is frequently held that this is so whether the non-joinder is apparent upon the face of the declaration or not. 4 But upon this point it seems that if the defect appears on the face of the declaration there should be no reason for compelling the defendant to plead a fact which already appears by the pleading of the opposite party. 5 If the action be one properly and essentially in tort, the fact that all who might sue were not joined is of no conse- quence; but if the action, though in form ex delicto, neces- sarily involves as an element of the cause of action the breach of a contract, the same advantage may be taken as if the ac- tion were in form, ex contractu; 6 or the defendant may give in evidence the non-joinder and ask for an apportionment of the damages, 7 unless those interested as plaintiffs are joint owners, in which case there can be no apportionment. 8 An action for a penalty, though in form an action for debt, is in its essence an action ex delicto, but in such cases the provision of the stat- ute must be strictly complied with, and this may require a devi- ation from' the ordinary rules as to joinder. 9 38. Misjoinder of plaintiffs ex delicto. The rule as to the consequences of a misjoinder of plaintiffs in actions ex delicto, and also as to the manner of taking advantage of the 1 Coryton v. Lithebye, 2 Saund. 113- 6 1 Chitty, 66. 117, C., R. L & P. Ry. Co. v. Todd, 91 ? Zabriskie v. Smith, 13 N. Y. 322- 111. 70. 337, 64 Am. Dec. 551; Whitney v. 2 Edwards v. Hill, 11 111. 22. Stark, 8 Cal. 514, 68 Am. Dec. 360. 3 3 Cooley's Black. 194. 8 id. 1 Chitty's PL 66. 9 Edwards v. Hill, 11 111. 22; Has- 5 Bell v. Lyman, 1 T. B. Mon. 39, 15 cott v. Alcott, 13 Ohio St. 210. Am. Dec. 83; Cabell v. Vaughan, 1 .Saund. 291. 39, 40.] PARTIES TO ACTIONS. 63 misjoinder, is the same as that just stated as applying to ac- tions ex contractu. 1 39. Non-joinder of defendants ex delicto As to who should be defendants in actions ex delicto, it may be observed that in general there cannot be such a thing as a joint tort, for torts are in general in their nature several. 2 But where many persons are concerned in the commission of a tort, the plaintiff ma} 7 ordinarily sue as many or as few as he chooses, and no advantage can be taken of it. There are, however, cases where the action is based upon contract, and in such cases the same rules as to non-joinder apply as in actions ex contractu? So also joint owners of realty must be joined as defendants in cases of tort by them, or they may plead the non-joinder in abatement. 4 40. Several liabilities Several judgments One satis- faction Election. There is not an entire harmony in the various states as to the right of a plaintiff to pursue separately the several tort-feasors who participated in the commission of a tort. There are cases which hold that the recovery of a judgment against one is a bar to a further proceeding against the other. 5 Another class of cases decide that the recovery may be had against all, while an execution issued on any one constitutes an election to proceed on that judgment alone. The weight of American authorities, however, allows nothing short of an actual satisfaction to bar further proceedings. 6 The plaintiff has the right to elect which one of several judgments he will collect; and one of the several defendants by paying the money into court cannot bar his right to pursue the defendant he chooses. 7 But a release given to one puts an end to further right of election. 8 i Murphy v. Orr, 32 IlL 498; K T. Petticolas v. City of Richmond, 95 & M. Life Co. v. Gravett,49 IlL App. Va. 456. 254. e Cleveland v. City of Bangor, 87 2 1 Chitty's PL 86. Me. 259 ; Love joy v. Murray, 3 Wall. 1. 3 1 Saund. 291/; Wright v. Geer, 6 7 Livingston v. Bishop, 1 John. 290. Vt 151; Rice v. Shute, 2 Burr. 261; See Cooley on Torts, *140 et seq. 1 Smith's L. C. 1413, note; Hughes, 8 Duf resne v. Hutchinson, 3 Taunt Tech. Law, 170. 117. < Mitchell v. Tarbutt, 5 Tenn. 649. 64 PARTIES TO ACTIONS. [ 41, 42. 41. Misjoinder of defendants ex delicto. As to the mis- joinder of defendants in actions ex delicto, if several be joined in a tort, and the tort described in the declaration is such as could be committed by but one, the defendant may demur, but in such case the plaintiff would have a right to elect to pursue one; and where, in the case just mentioned, the action is based upon contract, there a misjoinder would be as serious as it would be in cases upon a contract. The codes have not changed the rules as to the joinder of parties in actions ex delicto. 1 42. Statutes of amendments remove ancient dangers. Since the passage of the various statutes of amendments a mistake in joining an improper party, or failing to join a necessary party, is not attended with the same fatal conse- quences as under the ancient common law, 2 but it is usual in all the states to allow liberal amendments in matters of form or substance, substituting the name of the party legally interested for that of a party beneficially interested, adding new parties, dismissing proper parties, changing the form of action, or introducing a necessary element into a count. The Illinois statute is a fair example, and the cases will illustrate the application. 3 The statute of amendments is not a statute of substitution, and care must be exercised lest by a change of cause or parties the suit be entirely changed. 4 An illustration of this is given in a Rhode Island case. The law is that when two or more persons sue in ejectment as co- tenants, and it appears that one has no interest in the property, the defendant has judgment. A statute allowing joint tenants, coparceners and tenants in common to sever or join was held not to change the common-law rule; but the statute of amend- ment, providing that no action should be defeated by reason of misjoinder, etc., and allowing the names of parties to be stricken out, was held broad enough to save such an action. 5 1 Maxwell's Code PL *35; Hinkle 111. 215; Cogshall v. Beasley, 76 111. v. Davenport, 38 Iowa, 355; Zabris- 445; Douglas v. Newman, 5 111. App. kie v. Smith, 13 N. Y. 322, 64 Am, 518; U. S. Ins. Co. v. Ludwig, 108 III Dec. 551; Lawson's Rights & Rem., 514; Litchfield Coal Co. v. Taylor, 81 3435. Ill 590; Ranson v. Henderson, 114 2 The student should read in this 111. 528. See Appendix, note 33. connection, Weed v. S. & S. Ry. Co., 4 See Appendix, note 33. 19 Wend. 534 (1835). Waterman v. Andrews, 14 R. L 3 Dickson v. C., B. & Q. Ry. Co., 81 589. CHAPTER III. SPECIFIC RULES AS TO PARTIES. 43. Specific rules for selecting parties. The general principles and rules heretofore given will in most cases enable one to determine who are the proper parties; but it will be useful to show in contrast the ancient with the modern rules. For this purpose the rules formulated by Professor Dicey have been chosen; but it would be doing Professor Dicey an injus- tice and the student an injury to print these rules apart from his text without the caution which he gives. He says: "Each rule is laid down in the form of an absolute statement, but must be understood as subject to the exceptions afterwards enumerated ; the scheme of this treatise being to lay down in each case, first the general rule, and then the exceptions to it." In many cases, however, it will be seen that the rule is inac- curately stated, or that the ancient general rule does not now obtain. DICEY'S ENGLISH RULES. THE PERSONS WHO CAN SUE AND BE SUED. Rule 1. All persons can sue and are liable to be sued in an action at law. Exception 1. Felons, outlaws, and alien enemies can- not sue. Exception 2. The sovereign, foreign sovereigns, and ambassadors cannot be sued. GENERAL RULES APPLICABLE TO ALL ACTIONS. Rule 2. No action can be brought except for the infringement of a right MODERN AMERICAN RULES. Rule 1. All persons have legal capacity to sue or be sued. An alien suing will not be heard dur- ing the continuance of the war, 1 and a political sovereignty can be sued by a private person only by consent 2 Rule 2. Not a rule relating to parties. (See ante, % 20.) The word "ac- tion " is used in antith- esis to "suit;" & g., ac- tion at law suit in chancery. l Post. p. 180, note 1. 2 Andrews' Am. Law, 1097. The constitution provides that one state may sue another. New Jersey v. New York, 3 Pet 461. 66 SPECIFIC EULES AS TO PAETIES. [43. Rule 3. No action can be brought except for the infringement of a common-law right. Subordinate Rule. Where one person has a legal and another an equitable interest in the same prop- erty, any action in respect of such property must be brought by the person who has the legal interest. Rule 4. An action may be brought for every infringement of a "legal" right. Exception 1. Where an injurious act amounts to a public nuisance. Exception 2. Where the wrong done amounts to a felony. Rule 5. The same person cannot be both plaintiff and defendant. Rule 6. The right to bring an action cannot be transferred or assigned. Rule 7. No person can be sued who has not infringed upon the right in respect of which the action is brought. Rule 8. Every person can be sued who in- fringes upon the right of another. Rules 3 and 4. An action will lie for the infringe- ment of any legal right as distinguished from an equitable interest, whether it be founded on a contractual or com- mon-law obligation, or is based on a statutory penalty. (Andrews' Am. Law, 1062, note 1. See supra, 20.) Exception 1. When the wrong amounts toapublicnuisance, only those private persons can sue who suffer a peculiar injury not common to the public. (3 Cooley's Elk. (4th ed.)220;Cooley El. Tort, 258.; Exception %. This ancient rule is obsolete. Rule 5. It is a good de- fense to a legal action that a party is inter- ested on both sides, 1 un- less it be in a represent- ative capacity. 2 Rule 6. The right to bring an action which has ac- crued may be trans- ferred. 3 Exception. Actions for per- sonal torts. Supra, 21. Rule 7. An action must be based on the misfeas- ance or nonfeasance of the defendant or a per- son he represents. Rule 8. (Of. Rule 63.) This rule is but a corollary of Rule 1 and omits the second exception. 1 Blaisdell v. Ladd, 14 N. H. 129. 2 Neilly v. Neilly. 23 Hun, 651. s 1 Chitty's PL 17. 43.] SPECIFIC RULES AS TO PARTIES. cr Bule 9. The liability to be sued cannot be transferred or assigned. The exceptions to this rule are: the assignment of liabilities on covenants which " run with the land," the assignment of liability for a debt by agreement among all the parties interested, and the assign- ment of liabilities in consequence of marriage, bankruptcy, or death. ACTIONS ON CONTRACT. Plaintiffs General Rules. Rule 10. No one can sue for the breach of a contract who is not a party to the con- tract. Rule 11. The person to sue for the breach of a simple contract must be the person from whom the consideration for the promise moves. Exception 1. Actions by a person appointed by stat- ute to sue on behalf of others. Exception %. Actions which can be brought either by a principal or an agent. Exception 8. Some actions for money had and re- ceived. Rule 12. The person to sue for the breach of a contract by deed is the person with whom the contract is expressed by the deed to be made, i. e., the covenantee. Subordinate Rule. No one can sue on a covenant in an indenture who is not mentioned among the parties to the indenture. Rule 13. All the persons with whom a con- tract is made must join in an action for the breach of it. Rule 14. One and the same contract, whether it be a simple contract or a contract by deed, cannot be so framed as to give the promisees or covenantees the right to sue upon it both jointly and separately. Rule 9. The liability to be sued on the obligation of a third party may be in some cases incurred by accepting an assign- ment or conveyance of property with an ex- press or implied assum p- tion of liability, 1 and by the process of novation the liability may be transferred from one originally indebted to a new party. Rules 10 and 11. One in privity may maintain an action on a contract made for his beneGt, though he is not party to it and has not fur- nished the considera- tion. 2 The contract of insurance is also excep- tional. (Kurd v. Doty, 86 Wia 1.) Rule 12. Except covenants which run with the land. Rule 13. This rule is sub- ject to at least two ex- ceptions, viz.: dormant partners (see Rule 21) and the carrier's con- tract, mentioned ante, 24 Rule 14. A single stipula- tion cannot be both joint and several as to cove- nantees. (Ante, p. 49.) i Atl. Nat. Bank v. Harris, 118 Mass. 147; Schley v. Pryer, 100 N. Y. 71. 2 'Ante, 22. 68 SPECIFIC RULES AS TO PARTIES. [43. Rule 15. The right to bring an action on contract cannot be transferred or as- signed. Exception 1. Contracts made assignable by statute. Exception 2. Contracts or choses in action assignable by custom. Exception 3. Assignment of a debt by agreement of all the parties. Exception U. Covenants annexed to, or running with, estates in land. Exception 5. Assignment by marriage, bankruptcy, and death. Rule 16. The right of action on a contract made with several persons jointly passes on the death of each to the survivors, and on the death of the last to his representa- tives. Exception. Covenants with tenants in common. PRINCIPAL, AND AGENT. Hule 17. A contract entered into with a principal through an agent is in law made with the principal, and the principal, not the agent, is the proper person to sue for the breach of it. Exception 1. Where an agent is contracted with by deed in his own name. Exception %. Where the agent is named as a party to a bill of exchange, etc. Exception S. Where the right to sue on a contract is by the terms or circumstances of it expressly re- stricted to the agent. Exception 4. Where the contract is made with the agent himself; *'. e.. where the agent is treated as the actual party with whom the contract is made. Exception 5. Where the agent is the only known or ostensible principal, or where the agent has made a contract not under seal in his own name for an undisclosed principal. Exception 6. Where an agent has made a contract in the subject-matter of which he has a special inter- est or property. Exception 7. Where the agent has paid away money of the principal's under circumstances which gave a right to recover it back. Hule 18. A person who enters into a con- tract in reality for himself, but apparently as agent for another person, whom he does not name, can sue on the contract as prin- cipal Hule 19. A person who contracts in reality for himself, but apparently ar, agent for another person, whose name he gives, can- not sue on the contract as principal. Rule 15. In this case the general rule is other- wise. See supra, 21. Rule 16. A joint right of action goes to the sur- vivors. Rule 17. In the last four exceptions there is an election to sue, but it is 6nly the right of elec- tion. Rules 18 and 19. This and the preceding rule do not cover all the sit' uations, and are there- fore misleading. In the latter situation, if per- formance by the agent is accepted with knowl- edge, the agent may sue. 1 1 Mechem, Agency, 760. 13.] SPECIFIC RULES AS TO PARTIES. CO PARTNERS AND UNINCORPORATED COMPANIES. Rule 20. A firm or an unincorporated com- pany cannot sue in its name as a firm or as a company, but must sue in the names of the individual members of the firm or of the company. Exception 1. Where an unincorporated company is empowered by statute to sue, etc., in the name of its public officer. Exception 2. Where an unincorporated company is being wound up. Rule 21. All persons who are partners in a firm, or members of an unincorporated company, at the time when a contract is made with the firm or the company, should join in an action for the breach of it. Exception. One partner must or may sue alone on contracts made with him on behalf of the firm in the same cases in which an agent must or may sue on contracts made with him on behalf of his prin- cipal Rule 22. One partner or member of an un- incorporated company cannot sue another upon any matter involving the accounts of the partnership or company. Exception 1. Where there is an agreement which, though relating to partnership business, can be treated as separate and distinct from other mat- ters hi question between the partners. Exception 2. Where the matters in respect of which an action is brought are connected with the part- nership business only through the wrongful act of the partner sued. Rule 20. Exception S. The codes in some states allow suit for or against a firm in the firm name. (Wigton v. Smith, 57 Neb. 299.) Rule 21. All active part- ners should join in suits for breach of contract, but dormant partners ought not to be joined. (Clark v. Miller, 4 Wend. 628.) Rule 22. Legal actions by one partner against an- other in respect to claims arising out of partnership transac- tions would lie at com- mon law in the follow- ing cases: 1. The action of account to compel an ac- counting a juris- diction concurrent with equity. 1 2. The action of covenant if the partnership ar- ticles contained an express agreement to account and were under seal. 2 1 Atwater v. Fowler, 1 Edw. Ch. 417. See McMurray v. Rawson, 3 Hill, 59. 2 Duncan v. Lyon, 3 Johns. Ch. 351, 1 L. ed. 644. 70 SPECIFIC RULES AS TO PARTIES. [43. Rule 23. Actions for breaches of contracts made with a firm must be brought: 1. On the bankruptcy of the firm, by the trustee or trustees of the bankrupts. 2. On the bankruptcy of one or more part- ners, by the solvent partners, together with the trustee or trustees of the bankrupt partner or partners. Rule 24. On the death of a partner, the sur- viving partners, and ultimately the last survivor or his representative, must sue on contracts made with the firm. CORPORATIONS AND INCORPORATED BODIES. Rule 25. A corporation or incorporated body must sue in its corporate name. Rule 26. A corporation or incorporated body cannot sue on a contract not under seal. Exception 1. Where a corporation enters into a con- tract concerning matters necessarily incidental to the purposes of the business of the corporation. Exception 2. Where the contract relates to acts of trivial importance or of constant recurrence. Exception 3. Where the consideration for the con- tract is executed on the part of the corporation. Exception k. Where there is a contract implied by law. Exception 5. Where a corporation is authorized by statute to contract otherwise than under seal. Rule 27. A corporation or incorporated body cannot sue on contracts ultra vires. Rule 28. When an incorporated company is in the course of winding-up, actions on behalf of such company are brought and continued in its corporate name by the official liquidator. 8. The action of assump- sit in the form of in- simul computassent where an account has already been stated commonly called ac- count stated. 1 The rule against partners suing each other is based upon the iden- tity of parties. That is to say: One party cannot be interested on both sides of an action at law. He can- not be both plaintiff and defendant; but where the obligation is personal between the members, the fact that the claim is connected with the partnership will not bar the action. 2 Rule 26 is obsolete. A cor- poration may be sued on an express contract not under seal, or even on an implied contract. Rule 27 is not a rule relat- ing to parties. Rule 28 depends upon local regulations. 1 Morgan v. Adams, 37 Vt. 233; Phillips v. Belden, 2 Edw. Ch. 1, 6 L. ed. 285; Mechem, El. Part., 132. 2 See Mechem, EL Part., p. 99. SPECIFIC KULES AS TO PARTIES. 71 HUSBAND AND WIFE. Rule 29. A wife cannot during coverture sue without her husband. Exception 1. Where the husband is civilly dead. Exception 2. Where the husband is legally presumed to be dead. Exception 3. Where a wife has a " judicial separa- tion " or " protection order " under 20 & 21 Viet., cap. 85, 26 and 21. Subordinate Rule. A husband cannot bring an ac- tion against his wife, or a wife against her hus- band. Rule 30. A husband and wife must sue jointly in two cases, sc.: 1. On contracts made by the wife before marriaga 2. On contracts in which the wife claims as executrix or administratrix. Rule 31. A husband may sue either alone or jointly with his wife in three cases, sc.: 1. On negotiable instruments (e, g., bills of exchange) given to his wife before mar- riage. 3. On contracts made after marriage with his wife alone. 3. On contracts made after marriage with himself and his wife. Rule 32. The following are the results of er- rors as to joinder of parties in actions by husband or wife: 1. If a husband sues alone where the wife must be joined, the error is fatal. 3. If a wife sues alone where she either must or may be joined, the only result is to expose her to a plea in abatement. 3. If a husband sues with his wife where she neither must nor may be joined, the error is fatal. AS TO HUSBAND AND WIFE. Rules 29, 30 and 31. These rules are rendered obsolete by enabling acts which exist in every state in the Union. Married women may generally sue and be sued alone, and may even sue theirhusbands. The ancient disabilities which resulted from the theory of the common law that husband and wife were one person became obsolete upon the destruction of that theory. 1 According to the English law, the personal property of the wife reduced to posses- sion became absolutely the husband's, but until so reduced it remained hers; and if he died it did not go to his estate. It follows that at pres- ent the husband and wife can sue together only when there is a joint interest 2 1 Two entirely separate causes of action may arise from an injury to the person of a wife during the disability of coverture one for the injury to her, and the other for the damages resulting to the husband from loss of her services and society, as a consequence of the injury. Though these rights of action have their origin in the same injuries, the damages are distinct, and cannot be recovered in one action. The only damages result- ing from personal injuries to a wife which may be recovered in a joint action by husband and wife are those accruing to the wife herself and which would survive to her on the death of her husband. Fink v. Camp- bell, 70 Fed. R 664. * Bennett v. Bennett, 116 N. Y. 584; Fink v. Campbell, 70 Fed. R. 664; Harris v. Brain, 33 111. App. 510. 72 SPECIFIC KULES AS TO PARTIES. [43. Rule 33. Where a husband is bankrupt and the trustee in bankruptcy sues in the right of the wife, he must join the wife with him in suing. BANKRUPT AND TRUSTEE. Rule 34. The trustee of the property of a bankrupt must sue for the breach of any contract made with the bankrupt before bankruptcy in which the bankrupt has both a legal and a beneficial interest. Exception 1. Contracts, the breach of which involves injury to the person or to the feelings of the bank- rupt. Exception 8. Contracts uncompleted at the time of bankruptcy in which the personal service of the bankrupt is of the essence of the contract. Rule 35. For the breach of any contract made with the bankrupt during the con- tinuance of the bankruptcy (in which the bankrupt has both a legal and a beneficial interest), either the trustee may sue or the bankrupt may sue, if the trustee does not interfere. Exception 1. Contracts, the breach of which involves injury to the person or the feelings of the bank- rupt. Exception 2. Contracts to pay for the personal labor of the bankrupt performed after his bankruptcy. Rule 36. Actions on contracts made with the bankrupt after the " close of the bank- ruptcy" must be brought by the bank- rupt Rule 37. All the trustees must join in suing. Rule 38. On the removal, retirement, death, etc., of a trustee, his rights pass to and vest in his successor. Rule 39. The bankruptcy of a plaintiff does not cause the action to abate. Rule 40. If an action be brought by the bankrupt in cases in which the trustee must sue, or by the trustee in cases in which the bankrupt must sue, the error is fatal. 43.] SPECIFIC RULES AS TO PARTIES. 73 EXECUTORS, ADMINISTRATORS AND HEIRS. Rule 41. The personal representatives of a deceased person (i. e., his executors or ad- ministrators) can sue on all contracts of whatever description made with him, whether broken before or after his death. Exception 1. Contracts, the breach of which occa- sioned merely personal suffering to the deceased. Exception 2. Contracts limited to the life-time of the deceased. Exception 3. Covenants real, broken during the life- time of the deceased. Exception U. Contracts on which the deceased must have sued jointly with other persons. Subordinate Rule 1. An executor can commence an action before probate; but an administrator can- not commence an action before letters of adminis- tration granted to him. Subordinate Rule 2. On the death of the plaintiff the action can be carried on by his executor or ad- ministrator. Rule 42. An executor or administrator: 1. Must sue in his representative character on all contracts made with the de- ceased. 2. May sue either in his representative or in his personal character on contracts made with him as executor after the death of the deceased. Subordinate Rule. An executor or administrator cannot join claims made in his representative with claims made in his personal character. Rule 43. Co-executors or co-administrators must all join as plaintiffs in an action. Exception 1. Where a contract is made with some of several co-executors only. Exception 2. Where an executor renounces the exec- utorship. Subordinate Rule. One co-executor or co-admin- istrator cannot bring an action against another concerning matters connected with the executor- ship. Rule 44. On the death of a co-executor or co-administrator, his rights of action pass to the survivors, and ultimately to the last survivor. Rule 45. The executor of a sole or of a sole surviving executor represents the original testator; but the administrator of an ex- ecutor does not represent the testator, nor does the administrator of an administra- tor or the executor of an administrator represent the original intestata SPECIFIC BULES AS TO PARTIES. [43. ACTIONS ON CONTRACT. Defendants General Rules. Rule 46. No person can be sued for a breach of contract who is not a party to the con- tract Rule 47. The person to be sued for the breach of a simple contract is the person who promises or who allows credit to be given to him. Exception 1, Actions against a person appointed by statute to be sued on behalf of others. Exception 2. Actions on some contracts implied by law or actions quasi ex contractu. Rule 48. The person to be sued for the breach of a contract by deed is the person by whom the contract is expressed by the deed to be made; i. e., the covenantor. Rule 49. Where several persons are jointly liable on a contract, they must all be sued in an action for the breach thereof; i, e., joint contractors must be sued jointly. Exception 1. Where a co-contractor has become bank- rupt. Exception 3, Where a claim is barred against one or more joint debtors, and not against others. Exception 3. Where a co-contractor is resident out of the jurisdiction. Exception U. Where an action is brought against com- mon carriers. Exception 5. Where an action is brought against a firm, some of the members of which are nominal or dormant partners. Exception 6. Where a co-contractor is an infant or a married woman. Rule 50. Covenantors and other contractors may be at once jointly and severally liable upon the same covenant or contract, in which case they may be sued either jointly or separately. Rule 51. The liability to an action on con- tract cannot be transferred or assigned. Exception 1. Where there is a change of credit by an agreement between all the parties (novation). Exception 2. Where there are covenants between lessor and lessee which run with the land. Rule 52. The liability to an action on a con- tract made by several persons jointly, passes at the death of each to the sur- vivors, and on the death of the last to his re presen tati ves. 1 Burr-ill's Pr. 66. Rule 46. This rule omits the exceptions which render liable the as- signees of covenants which run with the land, e. g., lessees, as- signees of the reversion, etc.i Rule 50. But not an inter- mediate number. Rule 51. This is but a crude mode of stating that one cannot by his own assignment escape his liability on contract. Novation is not a trans- fer but an extinguish- ment and substitution. 43.] SPECIFIC RULES AS TO PARTIES. 75 PRINCIPAL AND AGENT. Rule 53. A contract entered into by a prin- cipal, through an agent, is in law made by the principal, and the principal, not the agent, is the person to be sued for the breach of it. Exception 1. Where an agent contracts by deed in his own name. Exception 2. Where an agent draws, indorses, or ac- cepts a bill of exchange in his own name. Exception 3. Where credit is given exclusively to the agent. Exception U. Where an agent contracts for persons incapable of contracting. Exception 5. Where the contract is made by the agent himself, {. e., where the agent is treated as the actual party by whom the contract is made, or in other words, where the agent, though acting as such, incurs a personal responsibility. Exception 6. Where the agent is the only known or ostensible principal, or where a contract (not under seal) has been made by an agent in his own name for an undisclosed principal. Exception 7. Where money received by an agent for his principal has been paid under a mistake of fact, or obtained by means of a tort. Exception 8. Where an agent has signed certain con- tracts on behalf of a limited company without using the word "limited." Rule 54. An agent who, without having au- thority, enters into a contract on behalf of a principal, cannot himself be sued on the contract, but is otherwise liable. Exception. Where the authority of an agent has with- out his knowledge expired at the time of his mak- ing the contracts. PARTNERS AND UNINCORPORATED COMPANIES. Rule 55. A firm or unincorporated company cannot be sued in its name as a firm or as a company, but must be sued in the names of the individual partners or members composing the firm or company. Rule 56. All persons who are partners in a firm, or members of an unincorporated company, at the time when a contract is made by or on behalf of the firm or com- pany, should be joined in an action for the breach of it. Exception. One partner must or may be sued alone on contracts made by him on behalf of the firm, in the same cases in which an agent must or may be sued on contracts made by him on behalf of his principal. SPECIFIC RULES AS TO PARTIES. Rule 57. Actions on contracts made by a firm 1. Cannot on the bankruptcy of the firm be brought either against the trustee or (as a general rule) against the individ- ual partners. 2. Must on the bankruptcy of one or more partners be brought against the solvent partner or partners. Rule 58. On the death of a partner, the sur- viving partners, and ultimately the last survivor or his representative, must be sued on contracts made with the firm. CORPORATIONS AND INCORPORATED BODIES. Rule 59. A corporation or incorporated body must be sued in its corporate name. Rule 60. A corporation or incorporated body cannot be sued on a contract not under seal. Exception 1. Where a corporation contracts concern- ing matters necessarily incidental to the purposes or business of the corporation. Exception 2. Where the contract relates to matters of trivial importance, or of constant recurrence. Exception S. In some cases of an implied contract. Exception k. Where a corporation is authorized by statute to contract otherwise than under seal. Rule 61. A corporation or incorporated body cannot be sued on contracts ultra vires. Rule 62. When a company is in course of winding up, actions against the company can either be stayed, or cannot be brought without leave of the court. INFANTS. Rule 63. An infant cannot be sued on any contract made by him. Exception 1. Contracts for "necessaries." Exception 2. Contracts in respect of permanent prop- erty occupied or possessed by an infant. Rule 64. An adult (i. e,, a person of or over twenty-one years of age) cannot be sued on contracts made by him during infancy. Exception 1. Contracts on which an infant might be sued. Exception 2. Contracts ratified in writing after full age. Exception S. Contracts connected with the possession of permanent property and not repudiated after full age. Rule 60 is contrary to the rule of law that a cor- poration may contract without the use of a seal. That is, a simple con- tract in writing or an implied contract may bind corporations. The rule is therefore obso- lete. Rule 61 is not a rule as to parties. Rules 63, 64 and 6 5. This was never the law of England or America. Suit may be brought and the judgment re- covered against an in- fant in an action ex contractu, and the de- fense of infancy is a privilege to be set up in suspension or abate- ment of the action. If not so taken advantage of, a judgment recov- ered against an infant is binding. 1 These rules are ap- parently based on the incapacity to contract 1 Cohee v. Baer, 134 Ind. 375. SPECIFIC RULES AS TO PARTIES. TT Rule 65. If one of several co contractors is an infant, and the others are adults, the adults alone must be sued. HUSBAND AND WIFE. Rule 66. A wife cannot during coverture be sued alone. Exception 1. Where the husband is civilly dead. Exception Z. Where the husband is legally presumec to be dead. Exception 3. Where a wife has a judicial separation or protection order under 20 & 21 Viet., c. 85, ss. 26 and 21. Exception U. Where the husband is an alien enemy Subordinate Kule. A wife cannot be sued by her husband. Rule 67. A husband and wife must be sued jointly in two cases, sc.: 1. On contracts made by the wife before marriage. 2. On contracts on which a claim is made against the wife as executrix or admin tratrix. Rule 68. In all actions brought to charge a husband on contracts made by his wife during coverture, the husband must be sued alone. Rule 69. The following are the results of errors in joinder of parties in actions against husband or wife: 1. If a husband is sued alone where his wife must be joined, the error is fatal 2. If a wife is sued alone, where she must be joined, the only result is to expose the plaintiff to a plea in abatement. 3. If a husband is sued jointly with his wife where he ought to be sued alone, the error is fatal unless amended. BANKRUPT AND TRUSTEE. Rule 70. A bankrupt cannot after his dis- charge be sued on contracts made before bankruptcy. Exception 1. Debts or liabilities held not to be prov- able by the court of bankruptcy. Exception 2. Debts or liabilities contracted after no- tice to the creditor of an act of bankruptcy. Exception S. Debts or liabilities incurred by means of fraud or breach of trust. Exception h. Debts or liabilities whereof the bankrupt has obtained forbearance by fraud. Exception 5. Debts due to the crown. during infancy. When applied to the subject of pleading there is a capacity to be sued but a privilege of immunity. Rule 66 falls of course with the removal of the disabilities. 78 SPECIFIC EULES AS TO PARTIES. Exception 6. Debts with which the bankrupt stands charged for an offense against a statute relating to any branch of the public revenue, or at the suit of the sheriff or other public officer on a bail bond, entered into for the appearance of any person prosecuted for any such offense. Rule 7 1 . An und ischarged bankrupt remains liable on contracts made by him before bankruptcy. Rule 72. The trustee can be sued as a trustee on contracts entered into by him in his character as a trustee. EXECUTORS, ADMINISTRATORS AND HEIRS. Rule 73. The personal representatives of a deceased person (i. e., his executors or ad- ministrators) can be sued on all contracts made with him, whether broken before or after his death. Exception 1. Contracts limited to the life-time of the deceased. Exception 2. Covenants in law not broken during the life-time of the deceased. Exception 3. Contracts on which the deceased must have been sued jointly with other persons. Subordinate Rule 1. An action can be commenced against an executor before probate, but an action cannot be commenced against an administrator be- fore letters of administration granted to him. Subordinate Rule 2. On the death of a defendant the action may be carried on against his executor or administrator. Rule 74. An executor or administrator must be sued in his representative character, i. e., as executor or administrator, on all contracts made by the deceased. Rule 75. An executor or administrator must be sued in his personal character on con- tracts made by himself. Exception. Contracts made by executor distinctly as executor. Subordinate Rule. In an action against an execu- tor or administrator, claims made against him in his representative character cannot be joined with claims made against him in his personal character. Rule 76. All co-executors or co-administra- tors who have administered should be joined as defendants in an action. Rule 77. The heir may be sued on contracts of the deceased in three cases, sc.: 1. On contracts by deed in which the an- cestor expressly binds himself and his heirs. 43.] SPECIFIC RULES AS TO PARTIES. 79 2. On contracts of record. 3. On covenants real. Subordinate Rule 1. A devisee is liable under the same circumstances under which the heir would be liable. Subordinate Rule 2. In no case can an executor or administrator be sued together with an heir or devisee. ACTIONS FOR TORT. Plaintiffs General Rules. Rule 78. No one can bring an action for any injury which is not an injury to himself. Rule 79. The person who sustains an injury is the person to bring an action for the in- jury against the wrong-doer. Subordinate Rule 1. The person to sue for any interference with the immediate enjoyment or possession of land or other real property is the person who has possession of it, and no one can sue merely for such an interference who has not possession. Subordinate Rule 2. For any permanent injury to the value of land, or other real property, i. e., for any act which interferes with the future en- joyment of, or title to, the land, an action may be brought by the person entitled to a future estate in it, i. e., by the reversioner. Subordinate Rule 3. Any person may sue for an interference with the possession of goods, who, as against the defendant, has a right to the immedi- ate possession of such goods; and no person can sue for what is merely such an interference who has not a right to the immediate possession of the Subordinate Rule 4. Any person entitled to the reversionary interest in goods (i. e., the rever- sioner) may bring an action for any damage to such interest, or, in other words, to his right of ultimate possession. Rule 80. 1. Persons who have a separate interest and sustain a separate damage must sue separately. 2. Persons who have a separate interest, but sustain a joint damage, may sue either jointly or separately in respect thereof. 3. Persons who have a joint interest must sue jointly for an injury to it. Rule 78. This rule omits the consideration of the common-law rules as to husband and wife, par- ent and child, etc., and the law concerning rep- resentative parties; also action allowed by stat- ute to next of kin for personal injuries. Rule 79. The modern rule is that the real party in interest must bring the action. Supra, pp. 33-36. 80 SPECIFIC RULES AS TO PARTIES. [43. Rule 81. The right of action for a tort can- not be transferred or assigned. Rule 82. Where several persons have a joint right of action for a tort it passes on the death of each to the survivors, and on the death of the last (if the right of action be one that survives) to his representatives. PRINCIPAL AND AGENT. Rule 83. A principal (or employer) can never sue for what is merely an injury to his agent (or servant), nor an agent (or serv- ant) for what is merely an injury to his principal (or employer). PARTNERS. Rule 84. All the partners in a firm, or mem- bers of an unincorporated company, should join in an action for wrong done to the firm or company. Rule 85. An action for an injury to the prop- erty of a firm must be brought: 1. On the bankruptcy of the firm, by the trustee or trustees of the bankrupts. 2. On the bankruptcy of one or more part- ners, by the solvent partners, together with the trustee or trustees of the bank- rupt partner or partners. HUSBAND AND WIFE. Rule 86. A husband and wife must sue jointly in three cases: 1. For injuries to the person, character, or property of the wife, committed before marriage. 2. For injuries to the person or character of wife committed during coverture; and 3. For injuries for which the wife must sue as executrix or administratrix. Rule 87. A husband may sue either alone or jointly with his wife for all injuries done during coverture to real property.of which the husband and wife are seised, or to which they are entitled in right of the wife. Exception. Where a permanent injury is done to the wife's freehold. Rule 88. The husband must sue alone in re- spect of any injuries to personal property committed during coverture. i Supra, 21. Rule 81. The right of ac- tion for a mere personal tort cannot be assigned, but when the injury is an injury to property it may in most instances be transferred and will survive the death of the person owning it. 1 Rules 86, 87 and 88 be- came obsolete for the same reason as stated to Rules 29 and 31. 43.] SPECIFIC EULES AS TO PARTIES. 81 BANKRUPT AND TRUSTEE. Bule 89. The trustee and not the bankrupt must sue for injuries to the real or per- sonal property of the bankrupt committed before the bankruptcy. Exception. Trespass to land before bankruptcy. Rule 90. For injuries to property acquired by the bankrupt after bankruptcy, either the trustee may sue or the bankrupt may sue if the trustee does not interfere. Bule 9 1 . The bankrupt alone can sue for in- juries to his person, feelings or reputa- tion. EXECUTORS AND ADMINISTRATORS. Rule 92. The personal representatives of the deceased (i. e., his executors or adminis- trators) can sue for injuries to the prop- erty of the deceased done during his life- time. Rule 93. The personal representatives of the deceased cannot sue for injuries to the person, feelings or reputation of the de- ceased. Exception. Actions where deceased killed by negli- gence. Rule 94. The personal representatives of the deceased can sue for injuries to his per- sonal property committed after his death. Rule 95. The real representative of the de- ceased cannot sue for any wrong done to him. DEFENDANTS GENERAL RULES. Rule 96. No person is liable to be sued for any injury of which he is not the cause. Rule 97. Any person who causes an injury to another is liable to be sued by the per- son injured. Exception. Where persons are protected from ac- tions. Rule 98. One, or any, or all of several joint wrong-doers may be sued. Exception. Persons sued as joint owners of land. Rule 99. The liability to be sued for a tort cannot be transferred or assigned. Exception. Assignment by death. 6 Rule 96. Exception 1. The owner of a public railroad is liable for the negligent operation of it by his lessee. (Railway Co. v. Brown, 17 Wall. 445; Penn. Co. v. Ellett, 132 111. 654.) Exception 2. A municipal corpo- ration is liable for injuries to third persons caused by the negligent use of the street by abutting owners. (Chicago v. Bobbins, 2 Black, 418.) 82 SPECIFIC KULES AS TO FAKTIES. [43. Hule 100. Each wrong-doer's separate lia- bility to be sued for a tort passes on his death (if it survives at all) to his personal representatives. The joint liability of sev- eral wrong-doers passes on the death of each to the survivors. PRINCIPAL AND AGENT. Hule 101. A principal is liable to be sued for the torts of an agent either commit- ted by the command of the principal, or subsequently assented to or ratified by him. Bule 102. An employer or master is liable to be sued for the torts of his servant if committed in the course of the servant's employment and for his master's benefit, or, in other words, in the service of his master. Exception 1. Where servant injured by fellow-serv- ant. Exception S. Where the master is compelled to em- ploy a particular person. Exception S. Where the employer is a public officer under government. Bule 103. A servant or other agent is liable to the person wronged for acts of mis- feasance, or positive wrong in the course of his employment, but not for acts of non-feasance or mere omission. Subordinate Rule. An action for tort may be brought either against the principal or against the immediate actor in the wrong, but cannot be brought against an intermediate agent. PARTNERS. Bule 104. One, or any, or all of the partners in a firm, or members of an unincorpo- rated company, may be sued jointly for a wrong committed by the firm or company. Exception. land. Where partners sued as co-owners of CORPORATIONS. Bule 105. A corporation or incorporated body can be sued for torts. INFANTS. Bule 106. An infant may be sued for torts committed by him. Exception. Where fraud closely connected with a contract. 43.] SPECIFIC RULES AS TO PARTIES. 83 HUSBAND AND WIFE. Rule 107. A husband and wife must be sued jointly for all torts committed by the wife either before marriage or during covert- ure. Exception. Where fraud closely connected with a contract. BANKRUPT AND TRUSTEE. Rule 108. A bankrupt can be sued both be- fore and after obtaining an order of dis- charge for all torts committed by him. EXECUTORS AND ADMINISTRATORS. Rule 109. The personal representatives of the deceased (i. e., his executors or admin- istrators) cannot be sued for torts com- mitted by him. Exception 1. Injuries to property within 3 & 4 Will. IV., c. 42. Exception 2. Actions for dilapidations. Exception S. Actions for tort brought in the form of actions on contract. EJECTMENT. (a) Plaintiffs. Rule 1 10. The claimant or plaintiff in eject- ment must be a person who has the legal right to enter and take possession of the land, etc., in respect of which action is brought, as incident to some estate or in- terest therein. Rule 111. All the claimants or plaintiffs in whom the title is alleged to be should join in bringing an action of ejectment. (b) Defendants. Rule 112. The persons to be made defend- ants in an action of ejectment, i. e., to be named in the writ, are all the tenants in possession of the land, etc., sought to be recovered. Rule 113. The persons who have a right to defend in an action of ejectment are any persons named in the writ, and any per- son who is in possession by himself or his tenant. NON-JOINDER AND MISJOINDER OF PARTIES, AND AMENDMENT. X Rule 114. An action brought by a wrong plaintiff, or against a wrong defendant, must fail Rule 107 falls for the same reason as stated to Rules 29, 30 and 31. Rules 114 to 118. These rules are not safe guides to follow in American courts. Compare 33 to 42, supra. 84: SPECIFIC BULES AS TO PARTIES. [43. Hule 115. In an action on contract: 1. A non-joinder of plaintiffs is, unless amended, a fatal error. 2. A misjoinder of plaintiffs leads only to increased costs. Rule 116. In an action on contract: 1. A non-joinder of defendants gives rise to a plea in abatement. 2. A misjoinder of defendants is, unless amended, fatal. Hule 117. In an action for tort: 1. A non- joinder of plaintiffs gives rise to a plea in abatement. 2. A misjoinder of plaintiffs leads only to increased costs. Eule 118. In an action for tort: 1. A non- joinder of defendants is no error. 2. A misjoinder of defendants leads only to increased costs. Exception. Actions for torts concerning real property. CHAPTER IY. ELECTION OF REMEDIES. 44. The election of a remedy consists in selecting from out the concrete mass of facts which embraces the subject of dis- pute the elemental facts which go to make up two or more several causes of action which may arise out of a single trans- action, but which, according to the rules of law, necessarily pro- ceed upon distinct and inconsistent theories, and choosing upon which of these the complaining party will ground his action. For this purpose it is allowable to ignore or waive the exist- ence of a contract and sue for the tort, or the existence of a tort and assume a contract. Waiving a tort and implying a contract is permitted where property has been wrongfully appropriated to the diminution of the estate of the owner and the appropriation of value by the wrong-doer by conduct which is violative of the common obligations resting upon all alike, and actionable irrespective of any contractual relation which may or may not exist be- tween the parties. 1 Waiving the contract 2 is allowed irrespective of whether prop- erty is involved in the transaction ; and wherever the relation between the parties raises a common-law duty or obligation distinct from the mere contract, though perhaps arising out of 1 Cooley, Torts (2d ed.), 107; Gould same class of cases where the con- v. Baker, 12 Tex. Civ. App. 669. "At verted property has assumed altered law, in many cases, if property be forms by successive investments, the tortiously taken or converted, the owner may follow it as far as he can tort-feasor may be sued in trespass trace it and sue at law for the sub- or trover, or the injured party may stituted property, or he may hold waive the tort and sue in ussumpsit. the wrong-doe* liable for appropri- In the latter case the same results ate damages. There are kindred follow as if there had been an im- principles in equity jurisprudence, plied contract. The plaintiff is not whence, indeed, these rules of the permitted to set up his tort to defeat common law seem to have been de- the action, and the recovery of a rived." May v. Le Claire, 11 WalL judgment will bar a further action 233. ex delicto by the plaintiff. In the 2 The tort is never implied. 86 ELECTION OF EEMEDIES. [ 45, it, and the one upon whom this duty rests violates it and dam- ages the other, the latter may elect to proceed upon the viola- tion of this common-law obligation and treat the wrongful conduct as a tort. 1 It will be observed that in the first situ- ation there is supposed a diminution or damage to a property right and the appropriation of the benefit by the wrong-doer, whereas in the second situation property may or may not be- involved, and the subject of the action may be personal in its. nature. 45. Utility of fictions. The transaction or res gestcB out of which an alleged injury arises frequently presents situations. which are so equivocal in their nature that it is difficult before trial to aifirm positively the legal result of the acts and conduct of the parties. 2 In some situations, even where no real con- tract is actually made, it is manifestly useful and equitable to both parties that a crime or a tort which has been committed may be waived and the injured party compensated. 3 This is- accomplished by the use of fictions, by which the tort or crime is ignored and a contract is implied. These fictions are as fre- quently resorted to under the codes as they were at common, law, and for precisely the same purpose, although it was sup- posed to be one of the principal objects of the code to do away with these fictions. A member of the constitutional conven- tion which provided for the first New York code, speaking of the forms of action under the common law, after remarking that the pleadings were almost invariably fictitious and filled with false allegations from beginning to end, 4 says: "For in- stance, if one were to rob a person of his watch, the forms of pleading at common law would allow him to waive the tort and bring an action for the value of the watch as upon a pur- chase. He could charge that on a certain day he sold and de- livered to the defendant a certain watch, in consideration , Torts (2d ed.), 103; An- the actions of ejectment, trover, and drews' Am.) Law, p. 1062; W., St. L. & the common counts, with the general P. Ry. Co. v. Shacklet, 105 III 364- issue. By far the greater part of 379. common-law pleading consisted in a 2 A striking example is found in truthful narration, and in modern Rich v. N. Y. C. & H. R. Ry. Co., 87 times the fictitious allegations are N. Y. 382. not necessary in ejectment and tro- 3 See May v. Le Claire, supra. ver. 4 The fictitious pleadings were in 45.] ELECTION OF REMEDIES. 87 whereof the thief promised to pay, when he should be thereto requested, as much as such watch was reasonably worth, and that it was reasonably worth $250. The defendant would an- swer non assumpsit that he did not promise. Every word in the declaration would be false, and the plea would be mani- festly true ; and yet there was no judge that would not instruct the jury that, though this was a very outrageous act, the party whose watch it was had the right to waive the wrong, and to have twelve men say on their oaths that the defendant did promise to pay what the watch was reasonably worth in man- ner and form as he had alleged." This he characterizes (and truly) a fair specimen of the fiction which existed in the com- mon-law mode of pleading. He could consume hours in giving instances, but considered one sufficient. 1 This is but a fair specimen of the complaint against the fictions of the common law; but, as we shall see, the whole doctrine of the election of remedies depends upon this same fiction. Where the election consists in waiving the tort and suing as upon contract, the ancient doctrine of implied contract is in- voked. This doctrine rests entirely upon a legal fiction. Mr. Bishop says : " One of the most interesting features of our law is its fictions. Not quite all of them are useful and wise, but most are, and some of them are so essential that they could be dispensed with only at great inconvenience." Of the latter sort he characterizes the fiction of implied contracts. To ac- commodate the procedure and render the law itself more lucid, the fiction that the law creates in certain circumstances a con- tract has been recognized rather than invented ; 2 and, as was 1 First Report Code Commissioners taking and converting of said money of New York, p. 70. The identical to the use and benefit of defendants, thing here complained of is done in they, said defendants, promised and the code states. In Gould v. Baker, became liable to pay to plaintiff 12 Tex. Civ. App. 669, where the the said sum of four hundred and money was stolen, the court says: ninety-five dollars, which sum of "The petition charged: 'That de- money is long since due, and, though fendants fraudulently and unlaw- often requested so to do, the defend- fully and by means of false pretense, ants, and each of them, have refused, and without the knowledge or con- and still refuse, to pay the same to sent of plaintiff, took said money plaintiff, or to pay him any part from plaintiff, and appropriated the thereof, to plaintiff's damage four same to the use and benefit of de- hundred and ninety-five dollars, for fendants, and withheld the same which he sues.' " from plaintiff; that by reason of the 2 Bishop on Cont., 182, 183. 88 ELECTION OF EEMEDIES. [ 46. noticed by the author last quoted, one court has deemed the term "implied " less accurate to designate the legal conclusion drawn than the word " created," l but this is not tenable. 2 46. The doctrine illustrated. This doctrine is stated by Judge Peckham in a somewhat recent New York case, 3 where the complaint charged the defendants with taking and carrying away from a mill the machinery therein, and wherein it was held that the action was in its nature ex contractu and not ex delicto for the wrong done by the plaintiff. The learned judge states the fiction and the reasons for the same admi- rably, thus: "As the defendants therein had not, after their conversion of it, themselves sold or otherwise disposed of the property which they had acquired of plaintiffs, the fictions of the receipt by the defendants of the money for the sale of the property charged ex cequo et lono they ought to pay back to plaintiffs, and which they therefore impliedly promised to pay back, could not be indulged in, and the position of the parties would have been at one time the subject of some doubt, whether there was any foundation of the doctrine of an implied prom- ise in such case or any possibility of the waiver of tort (trover) 4 committed by the defendants in the conversion of the property." He further notices the conflict of authority, and adds that " the great weight of authority in this country is in favor of the right to waive the tort. ... If the wrong-doer has not sold the prop- erty, but still retains it, plaintiff has the right to waive the tort and proceed upon an implied contract of sale to the wrong-doer himself, and in such event he is not charged with the money had and received (indebitatus assumpsif) by him to the use of the plaintiff. The contract implied is one to pay the value of the property as if it had been sold to the wrong-doer (goods sold and delivered). If the transaction is thus held by the plaintiff as a sale, of course the title of the property passes to the wrong-doer." We may notice- that the plaintiff might also have brought trespass. By this case it will be seen that originally it was only in cases where the property had been sold or disposed of by the tort- feasor, or converted into money or money's worth, that the tort 1 Central Bridge v. Abbot, 4 Gush. 3 Terry v. Hunger, 121 N. Y. 162, 8 473. L. E. A. 217, 18 Am. St. R 803. 2 Nolan v. Swift, 111 Mich. 56. 4 These parentheses are added. ED. 47, 4:8.] ELECTION OF REMEDIES. 89 might be waived ; and the form of action used in such cases was the common count for money had and received, and the plaint- iff, if the defendant still possess the thing, might recover it in specie by replevin, or its value in trover. The doctrine of the New York case just cited very generally prevails throughout the United States. So in certain cases where one is not in pos- session of his property he has a right to ignore a conversion which has already taken place, sell the property to a third per- son, and this third person may demand the possession of the property, and on refusal bring an action of trover for the sec- ond conversion. 1 47. Grounds -of the implication. It is generally held that there must be some basis for the implication of the as- sumpsit, as that the defendant has in some manner voluntarily converted the property of the plaintiff to his own use, or ap- propriated it in some manner beneficial to him. 2 The impli- cation is based upon the acts of the defendant and the justice of the matter. Thus, an action of assumpsit or for use and occupation of land will not lie for the mere occupation by a trespasser. 3 There must be some element of voluntarily in- fringing another's right upon which to base the fiction of the promise to pay the benefit arising from such act, 4 or some con- duct which amounts to an evidence of an intention to volun- tarily appropriate the property of another before the assumpsit will be implied. 5 48. Extent of the right, In cases- where the injury is one that may be waived, the plaintiff may exercise his election to waive the contract and sue in tort, 6 or waive the tort and sue in contract; and although the ancient common-law doc- trine was otherwise, the doctrine is now established that the plaintiff may waive a felony and sue either in an action of tort or on contract. 7 But legal titles cannot be tried in this collat- 1 Tome v. Dubois, 6 Wall. 548; Hall 34, and McGoon v. Ankeny, 11 111. v. Robinson, 2 N. Y. 293. It is not 558. allowed in some jurisdictions to sell 2 Alderman v. Ennor, 45 IlL 128; property which is held in adverse Payne's Appeal, 65 Conn. 397. possession. None of the above cases 3 Downs v. Finnegan, 58 Minn. 112. go quite the length of allowing the 4 Loyd v. Hough, 1 How. 153. sale where the property is held ad- s Lazarus v. Phelps, 152 U. S. 81. versely. Compare with the above 6 Cooley on Torts, p. 90. cases, " Hawes' Parties to Actions," ' Cooley on Torts, pp. 86-88. 90 ELECTION OF REMEDIES. [ 49. eral way; and while there is conflict of authority, the probable weight is in favor of the proposition that where the property involved was in the adverse possession of the defendant at the time of the acts complained of, a form of action proper for the trial of title in that jurisdiction would be required. 1 49. An election between inconsistent remedies is bind- ing. It is important that the most appropriate form of action should be chosen in the first instance; for an election once made, or acts which amount to an election to pursue one or the other of the optional courses, will bind the party to pro- ceed upon that theory, and he will not have the right to after- wards change the cause of action. 2 The codes, quite as strictly as the common law, require that the plaintiff adopt and adhere to some particular theory of his case, and all his allegations and proof must conform to this theory. He cannot, in an in- discriminate jumble, embrace several forms of action in a single count, but will be compelled to elect as to what single theory he will pursue. 3 As we have seen, it is not the province of equity to award damages except in cases where the damages are incidental to- some other equitable ground of relief; 4 hence, in case of a continuing damage or nuisance, a party might sue for damages which had already accrued and bring a bill in equity to enjoin the continuance of the nuisance. 5 And there is no inconsist- ency in pursuing several remedies having as their object the attainment of the same thing, e. g., a bill in chancery to set aside a contract of credit in a purchase of goods, an attach- ment, and also an action for the purchase price. 6 The election is required only of inconsistent remedies, 7 and is binding only on the idea of estoppel; that a deliberate choice which has affected the other party is final. 8 1 Downs v. Finnegan, 58 Minn. 112. * Worthington v. Waring, 157 Mass. 2Keely v. Long, 71 Md. 385, 5 L. 431. R A. 759; Grossman v. Universal 6 3 Cooley's Black. (3d ed.) 220. Rubber Co., 131 N. Y. 636, 13 L. R A. 6 Grossman v. Universal Rubber 91, and note; Terry v. Munger, 121 N. Co., 131 N. Y. 636, 13 L. R A. 91. Y. 162, 8 L. R A. 216, 18 Am. St. R 7 Smith v. Hodsen, 4 T. R 211, 2 803; Cook v. First Nat. Bank, 83 Wis. Smith's L. C. 198. See Wilson v. 81, 35 Am. St R 17. Pearson, 20 111 81. 3 Supervisors v. Decker, 30 Wis. 8 Johnson Co. v. Mo. Pac.Ry.Co.> 624; ^Etna Powder Co. v. Hildebrand, 126 Mo. 344 See Marshall v. Otto, 59- 137 Ind. 463. Fed. R 249. 50, 51.] ELECTION OF REMEDIES. 91 50. The causes of action must be identical. In order to require an election and constitute such election a bar or a decis- ion of the case res adjudicate, it is necessary that the causes of action involved in the suit invoked as a bar should be identical with the cause of action upon which the suit in progress is based. It is not enough that the subject of the suit or the con- duct or acts which constitute the grounds of action be iden- tical, because a single course of conduct may give rise to several distinct rights of action, vesting in different persons, e. g., hus- band and wife, parent and child, master and servant; or there may arise by the same act and conduct causes of action of a different nature, for example, a mere personal injury and an injury to a property right. These matters must be constantly borne in mind, not only for the purpose of election of the rem- edy, but for determining the survivability of actions and their extinguishment by the statute of limitations. 1 51. Considerations governing selection of remedy, In order to properly determine the form of action to be pursued, or, to put it in more technical language, to make the proper election, it is necessary, as well under the code as in the com- mon-law states, to have in mind the different ways in which the choice of the remedy is likely to become important. (a) Disability: In case the party to be sued is a single person, it may be important, if the party is an infant, or non compos mentis, or a married woman, to select a form of tort, under the well-known doctrine that such persons are liable for their torts, though they may not be liable \o be sued, in form ex contractu. (b) The survival of actions: The death of a party who has a supposed right of action may possibly control. It was a rule of the common law that a mere personal right of action dies with the person. 2 This rule must not mislead one to suppose that the actions which are termed personal actions are meant by this expression " a personal right of action." The distinc- tions here required to be made are nice, but they are real and do not depend upon the forms of action. They are as essential under one form of procedure as under another. For example, in those jurisdictions which hold that the injury inflicted upon a husband or wife by enticing away the consort is an injury in 1 See Union Pac. Ey. Co. v. Kelley, 2 Broom's Maxims, 908; ante, p. 40, stated on p. 93. note 3. 92 ELECTION OF REMEDIES. [ 51. the nature of a property right, and not a mere personal tort, it would be held that the right of action would survive. 1 The same reasoning applies to injuries to children and servants. 2 An interesting case was recently decided by the court of Colo- rado. K., an express messenger, was injured by the Union Pacific Eailroad Company, and sued it in the United States circuit court in tort for damages on account of personal inju- ries, which suit abated on account of his death. His adminis- tratrix brought another suit against the company, based upon a contract between the Pacific Express Company and the de- fendant, imposing upon the latter the duty to carry the express messengers. 3 The defendant pleaded the other suit as res ad- judicata. The court quite clearly distinguished between that case and a case involving property, holding that this was not a case where the party had an election of remedies or could be held to an election, but that the cause of action in tort for the negligent injury was an entirely distinct and separate cause of action, and held the plea of res adjudicata bad, thus holding that by reason of this contract the suit survived to the estate of the deceased. 4 In Jenkins v. Bennett* the plaintiff contracted with the defendants to make extensive repairs upon a hotel. The complaint alleged that the defendants prevented perform- ance. After issue joined one of the defendants died. It was held that the mere preventing of performance was a personal tort and the action did not survive against the estate of the deceased defendant. The principles which control the assign- ability and transferability of rights of action are the same as those which govern their survival, which is but another mode of transfer, i. e., by death. 6 (c) Statute of limitations: Much that has just been said will apply under this subdivision. It may frequently happen that the statute of limitations would bar an action in tort where it would not in contract, or an action brought for the recovery of specific property where it would not an implied assump&it 1 Bennett v. Bennett, 116 N. Y. 584; representative of the deceased was Warren v. Warren, 89 Mich. 123, 14 allowed to invoke the doctrine of L. R. A. 545. privity. 2 Frazier v. Ga. etc. Co., 101 Ga. 70; 4 Union Pac. Ry. Co. v. Kelley, 4 Cregan v. Railroad Co., 75 N. Y. 195; Colo. App. 325, 35 Pac. R. 923. Id., 83 N. Y. 595. s 40 S. C. 393. 3 It is interesting to note that the 6 Supra, p. 40, note 3. 51.] ELECTION OF KEMEDIES. 93 for its value. It will be noticed that in some jurisdictions the form of the statute of limitations is against particular forms of action, while in other jurisdictions the statute limits the time for bringing action in relation to the cause of action. 1 (d) Set-off, recoupment, etc.: The existence or non-existence of some claim for damages by the proposed defendant which he might set up by way of recoupment, set-off or counter-claim might influence the pleader in the form of action which he would adopt, or at least deter him from bringing his action ; for ordinarily a plaintiff could not avoid a set-off by bringing his suit in tort for a matter arising in contract; but a tort- feasor would have no right to insist that, simply because the plaintiff had a right to bring his action upon contract, he might therefore set off any account he had against the plaintiff. 2 (e) The nature and amount of damages which may be recov- ered under one form of action rather than another is perhaps the most usual motive for considering what form of action is best to adopt, and this does not always depend upon a mere election between the forms of action ex contractu or ex delicto, but involves another element, as to whether a certain action shall be brought which at common law would be in form tres- pass de l)(ynis asportatis or trespass quare clausum fregit, or a choice of two actions which might both be in contract or in tort. Perhaps the most difficult phase in which this question arises is that presented when a passenger sues a carrier for injuries sustained by the passenger by reason of the negligence of the common carrier which has contracted to carry him safely to his destination. In such a case, which is but the application of a principle applying to many other cases, by suing in tort for the negligence, a plaintiff is allowed to recover other and different damages than he might recover if the action were brought for a breach of contract. For instance, a recovery in tort might include more remote and consequential damages, and there might exist grounds for the recovery of punitive or exemplary damages. There has not been an entire unanimity of opinion and decision as to the right in such cases to assume .the form of action ex delicto. Probably the leading American 1 Carroll v. Green, 93 U. S. 509. 2 Norden v. Jones, 33 Wis. 600. 94: ELECTION OF REMEDIES. [ 51. case in which the right of election is allowed is the case of Brown v. 0., M. & St. P. Ry. Co., 1 in which case the doctrine is elaborately discussed, and the rule which is adhered to in most of the states established. 2 Substantially the came state of facts involved in the Wisconsin case was held by the English court not to allow a suit to be brought upon tort, but such a suit was held to be in contract. 3 The English doctrine was adopted by the supreme court of Colorado. 4 One whose goods are unlawfully taken has various courses open to him. He may sue in trespass for the unlawful taking or may replevin the goods, or may sue for their value, as we noticed in the case of Terry v. Munger; 5 or, if the property had been converted from the original form in which it was taken, the plaintiff might still replevin it in its new form, although its value had been increased by reason of labor be- stowed upon it. 6 Upon a like principle, one whose trees or crops have been destroyed by the negligence or trespass of another may bring an action in the form of trespass de bonis or assumpsit for the value of the property destroyed, or he may maintain an action for injury to the real estate, in which forms of action the measure of damages will be different. 7 Or where ore or coal has been taken from the ground, the owner may exercise the same election, 8 or he may, in such cases, bring an action of trover. 9 Where a contract for services, as a laborer, contractor, etc., is broken, there are generally several remedies open to the 1 54 Wis. 343, 41 Am. R 41. covered a tort et damages, i e. as in 2 See G, H. & I. Ry. Co. v. Eaton, 94 tort. Grabbers Hist. Eng. Law, 291 ; Ind. 473, 48 Am. R 179; Evans v. St. 1 Spence Eq. 24a See "Assumpsit." L., I. M. & S. Ry. Co., 11 Mo. App. Pullman P. C. Cc. v. Barker, 4 463; Pittsburgh & C. Ry. Co. v. Rey- Colo. 344, 34 Am. R. 89. See also 1 nolds, 55 Ohio St. 370. Suth. on Damages (3d ed.), 72. 3 Hobbs v. London & S. W. Ry. Co., 5 121 N. Y. 162; ante, 46. L. R. 10 Q. B. D. 111. This is the 6 Davis v. Easley, 13111. 192; Baker more peculiar from the fact that one v. Wheeler, 8 Wend. 505, 24 Am. Dec. of the earliest recorded actions on 66; Harms v. Stier, 51 111. App. 234 the case was where a ferryman had 7 Bailey v. C., M. & St. P. Ry. Co., undertaken to carry the plaintiff's 3 S. Dak. 531, 19 L. R. A. 653. horse over the Humber river, and by 8 Omaha, etc. Co. v. Tabor, 13 Colo, overloading the boat the horse was 41, 5 L. R. A. 236. lost and the plaintiff sued and re- 9 Id. 51.] ELECTION OF KEMEDIES. 95 plaintiff. He may bring an action in assumpsit upon a quan- tum meruit for the services performed, or an action for the breach of the contract and damages may be brought; or, in case of a wrongful discharge, he has the option to wait until the period contemplated by the contract for the completion of the work had expired, and then sue for the contract price ; l but an action of special assumpsit upon the contract is inconsistent with one upon the quantum meruit or valebant? So, also, for another and entirely different character of in- jury, the plaintiff might sue in an action of trespass- on the case for seduction and recover for the loss of the services, or he might bring an action of trespass quare clausum fregit with an allegation of alia enormia (and other wrongs then and there did), or trespass vi et armis, and recover for the same offense different measures of damages. 3 Examples might be multi- plied, but these will be sufficient to illustrate the principles, and will enable the student to readily apply these principles to other cases. The subject will receive further treatment and illustration in the pages of the text and notes thereto under the discussion of the forms of action. (f) The nature and extent of the remedy may influence a choice of the form of action, as in most of the states a capias ad respondendum may issue as process in cases of fraud, or in form ex delicto when such a remedy Avould not be allowed in an ac- tion ex contractu. So in the action of account, wherever that action is in use, it is usual to compel the appearance of the de- fendant, and his obedience to the order to account, by attaching his person. 4 That the common-law principles in regard to the election of remedies are of universal application and equally as impor- tant under the codes as under the common-law procedure will appear from the cases cited, but the necessity in code practice of observing these forms and fictions, and the distinctions which iKeedy v. Long, 71 Md. 385, 5 L. Woolsey v. Ellenville, 69 Hun, 489; R. A. 759; Knutson v. Knapp, 35 Wis. Distley v. Dabney, 3 Wash. 200. 86; Hochsterv.DelaTour,2EL&BL Baggie v. Illsley, 127 Mass. 191; 678; Roehm v. Horst, 178 U. S. 1; White v. Murtland, 71 III 280. Andrews' Am. Law, p. 859. 4 1 Paine & Duer's Pr. 2; 1 Starr & 2 Id.; Long v. Doxey, 50 Ind. 385; Curtis, III Stat 188; 1 Burrill's Pr. 23; Richardson v. Coffman, 87 Iowa, 121; 1 Cooley's Black. (4th ed.) *162. 96 ELECTION OF REMEDIES. [ 51. existed between the different forms of action under the com- mon law, will be even more apparent by an examination of the discussion of this doctrine of election in any of the many works upon code procedure. 1 The election is indicated under the common law by the form of action chosen; but under the code, while it may be indi- cated, there is no criterion supplied by the rules of pleading, and it is left to be spelled out of the complaint by the court on the trial. 2 i Pom. Code Eem. (2d ed.), 558-567. 2 Id. SYSTEM OF PLEADING FOLLOWED IN THE NATIONAL COURTS. " The Constitution of the United States and the acts of Con- gress recognize and establish the distinction between law and equity. The remedies in the courts of the United States are at common law or in equity, not according to the practice of State courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles. 'And although the forms of proceedings and practice in the State courts shall have been adopted in the Circuit Courts of the United States, yet the adoption of the State practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit.' " Thompson v. Kail way Co., 6 Wall. 137. 7 SYNOPTICAL OUTLINE OF THE PKOCEEDmGS IN A.~N ACTION. 1. Prrocipe (p. 108). 2. Original writ (p. 108). 8. Judicial process (p. 143). 4. Appearance (p. 146). 1. Personal summons (p. 145). 2. Capias ad respondendum (p. 145). 8. Constructive notice. 4. Attachment of property. 1. In person (p. 149). 2. By atttorney (p. 150). 1. Declaration or complaint (p. 152). 2. Demurrertop.irr.lSS).! 1 - General (2. Special. 6. Pleadings (p. 150). 198 >' 3. Pleas (p. 176). Order and character of (p. 178). 4. Oyer of the writ (p. 186). 5. Joinder in demurrer (p. 193). 6. Replication (p. 196). 7. Rejoinder. 8. Amendments (p. 211). 9. Motion to strike out pleadings (p. 251). 6. Arriving at issue (pp. 191, 192). 7. Trial (p. 215). 1. Of fact j 1. By jury (pp. 215-217). I 2. By the court (p. 217). 2. Of law, by court (p. 215). 3. Other modes of (p. 233). 4 Incidents. 8. Verdict (p. 221). 1. General (p. 224). 2. Special (p. 225). I 8. Special findings (p. 226). 9. New trial (p. 228). 10. Arrest of judgment (p. 230). 11. Judgment non obstante (p. 231). 12. Repleader (pp. 231, 232). 13. Venire facias (p. 233). ' 1. On plea in abatement (p. 236). 2. By default (p. 240). J Interlocutory. I Final. . 8. On nonsuit (pp. 240, 384, note 1). f 1. Demand of view (p. 200). 2. Voucher of warranty (p. 202). 8. Oyer and profert (p. 203). 4. Imparlance (p. 206). 5. Recording up the issue (pp. 209-214). 6. Withdrawing a juror (p. 385). 7. Objections, exceptions and bill of exceptions (p. 222). 8. Demurrer to evidence, motion to exclude (p. 224). . 9. Directing a verdict (p. 385). 14. Judgment (page 236 et seq.). 15. Execution (p. 245). 16. Appeal and writ of error (p. 246 et seq.). 17. Error coram nobis (p. 248). 18. Audita querela (p. 249). SYNOPTICAL OUTLINE OF THE PROCEEDINGS IN AN ACTION Con tinned. f 1. Dilatory. 2. Peremptory or in bar (p. 188). ' 1. To the jurisdiction (p. 179). 2. In suspension (p. 180). 1. To person of plaintiff (pp. 180, 184). 3. In abatement (pp. 181-183). ' 2. To person of defendant. 1. That he is fictitious. 2. That he is an alien enemy. 3. That he is dead. 4. That he is misnamed. 5. That he is under disability to sue in form adopted. 6. Misjoinder or non- joinder. 1. Disability to sue. 2. Misjoinder or non- joinder. 3. Privity. 3. To the declaration or count fp. 184). 4. To the writ (PD. 181-184). 1. Traverse. 2. In confession and avoidance. 1. Variance. 2. Autre action pendant. 3. Suit prematurely brought. (1. Puts darrein continuance (p. 198). 2. In estoppel (p. 326). 8. Res adjudicata (p. 479). 4. New assignment (p. 327). NOTE. For the order hi which these pleas are to be pleaded see page 178. SYNOPTICAL OUTLINE OF LEGAL ACTIONS. * 1. Involving possession simply.* 2. Involving [ possession I Forcible entry and detainer (p. 114). Real and and dam- j Equ i ta ble ejectment in Pennsylvania^ ages. mixed f (1) Waste (p. 117). (pp. 105-6). 3. J n v o 1 v i n g (2) Writ of entry (p. 118). possession, \ (3) Trespass to try title (p. 120). title and (4) Writ of dower (p. 113). damages. (5) Ejectment (p. 139). fa. In the debet. ' (1) Debt I b. [n the detinet. (p. 122). 1 c. Penal actions on statutes - 1. Actions ex I and ordinances. \ PRIVATE ADVER- contractu (p. 106). (2) Covenant (p. 126). f (3) Account (p. 124). (4) Assumpsit ( a. General. SARY AC- (p. 133). ( b. Special. TIONS IN P E R8O- (1) Detinue (p. 126). i :a. Vi et armis. NAM. (2) Trespass b. De bonis asportatis. (p. 127). c. Quare clausum fregit. Personal ' a. Trover (p. 135). (p. 106). b. Libel (p. 166). 2. Actions ex c. Slander (p. 166). delicto (p. 106). (3) Trespass on the H d. Malicious prosecution (p. 169, note). All actions for the re- case dress of a personal (p. 181). wrong occasioned by non-feasance or misfeasance where force is not the ground or gist of the 1 action (p. 131). (4) Replevin 1a. In cepit. (p. 138). b. In detinet. PROCEED- t INGS IN \ Attachment SPECIAL PROCEED- ING. Scire facias to foreclose mortgage. Partition, under statutes. Condemnation proceedings, under eminent domain. Special assessment proceedings for public improvements. Probate proceedings. . Proceedings to protect persons non compos mentis. PUBLIC CrvTL ACTIONS. MARITIME CAUSES. Mandamus. Quo warranto. Scire facias. Prohibition.^ Certiorari.% Habeas corpus, t The jurisdiction In admiralty Is exclusively in the federal courts, and is in form a proceeding against the vessel, but is to all intents and purposes adversary and not exparte.l * Such an action seems to have survived the code that is, an action the effect of which was to destroy the defendant's tenure and restore the plaintiff to possession without a judg- ment for damages. Van Rensselaer v. Wright, 121 N. Y. 626. . t German Am. T. & T. Co. v. Shallcross, 147 Pa. St. 485. J These each have a function as an appellate process as well as an original action, I Desty's Fed. Pro. (9th ed.), sec. 2, p. 27 et seq. CHAPTER Y. CAUSES OF ACTION, FORMS OF ACTION, AND PROCEEDINGS IN AN ACTION. 52. [PRIMARY RULE OF PROCEDURE : Parties must proceed upon a definite theory of action or defense, and must adhere to the one first chosen until allowed oy the court to change under the \rulesfor amendment. 1 This is the fundamental idea of proced- ure under all systems in vogue in the United States. Its ex- pression under the common-law system was somewhat different, but the substance was identical. 2 The common-law rules re- i Phillips' Code PL, 202. See Arms Co. v. Railway Co., Appendix, post. " Pleading and a distinct issue are essential in every system of juris- prudence, and there can be no or- derly administration of justice with- out them. If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary." Romeyn v. Sickles, 108 N. Y. 650; Supervisors v. Decker, 80 Wis. 624 (a) Code Rule. Mtna, Power Co. v. Hildebrand, 137 Ind. 462; Logans- port v. Uhl, 99 Ind. 531, 50 Am, R. 99; Welsbeck v. Glass, 46 Mo. App. 209. (b) Common Law. Wilson v. John- son (N. J.), 29 AtL R. 419; T., W. & W. Ry. Co. v. McLaughlin, 63 I1L 389; Longyear v. Minnesota L. Co., 108 Mich. 645. In Smith v. Rumsey, 33 Mich. 144, it was said: "The proposi- tion that the court is bound to ad- judge according to the case shown and issues raised by the pleadings is so evident, andhas so repeatedly been expounded and applied in this state, that anything beyond a reference to it would be scarcely excusable." Reed v. Jourdan, 109 Mich, 128. The decree must conform to the claims in the pleading. Id. (c) Equity. Jeffries v. Robbing, 167 III 375; Ogden v. Moore, 95 Mich. 290. It is sometimes said that the ground of action cannot be changed, but this must be taken in a qualified sense. The rule only requires that the original cause be adhered to. Strang v. Judge, 108 Mich. 229; Smith v. Missouri Pao. Ry. Co., 56 Ma 458; Insurance Co. v. Judge, 77 Mich. 231. The rule in chancery cases is that, beside answering the complainant's case as made by the bill, the defend- ant must state to the court in his an- swer all the circumstances of which he intends to avail himself by way of defense; for it is a rule that the defendant is bound to apprise the complainant by his answer of the nature of the case he intends to set up, and that he cannot avail himself of any matter which is not stated in his answer, even though it should appear in his evidence. Reed v. Jourdan, 109 Mich. 128; 1 Barb. Cb, Prac. 137. 2 The late Austin Abbott, in an article commenting on the case of U. P. Ry. Co. v. Wyler, 158 U. S. 285, 98 CAUSES AND FOKMS OF ACTION. [ 52. quire that the declaration shall conform to the writ, and will not allow a departure in theory at any subsequent stage by either party. 1 Judge Phillips states that under the codes each cause of ac- tion must be separately stated, these separate statements being called by the common-law pleaders counts, in some states par- agraphs; but are more properly designated causes of action. 2 A single count or complaint may not, under any form of procedure, be so framed as to include a double or treble or any number of aspects reciting at large the incidental facts of the transaction, without indicating the particular cause of action intended to be relied upon, in order to suit the exigencies of the plaintiff's case as they may arise when the proofs are adduced on the trial. 3 Such is not the theory of chancery pleading or code pleading, and it is needless to say such was not the rule of the common law, 4 except as relaxed in the one form of ac- tion, viz., the money count of assumpsit. It has been repeat- edly held by the courts in the code states that the inherent and essential differences and peculiar properties of actions have not been destroyed, and from their nature cannot be. These distinctions continuing, they must be regarded by coun- sel and courts now as formerly, and under the reformed pro- stated quite justly that under the allowed in regard to amendment; common-law procedure the theory but even in those states it is held relied upon is indicated by naming that what constitutes a departure in the form of action, and he adds that an amended pleading is nevertheless the code has made more confusion in to be determined by the rules of com- this matter than it has cured. 2 Uni- mon law, which thus furnish the versity Law Rev., No. 8, p. 269. Penn- test for ascertaining whether a given sylvania rule: " Accuracy and tech- amendment presents a new cause of nical precision have no terrors except action, even although it be permis- for the careless and the incompetent, sible to advance such new cause, by and the act of 1887 was not intended way of an amendment." U. P. Ey. to do away with them. As to all Co. v. Wyler, 158 U. S. 285. matters of substance, completeness, 2 Phillips' Code PL, 202. accuracy and precision are as neces- 3 This was the object of the com- sary now to a statement as they were mon counts, and was a departure before to a declaration in the settled from the theory of common-law and time-honored forms." Fritz v. pleading. Hathaway, 135 Pa. St. 280. 4 Supervisors v. Decker, 30 Wis. 624; !See "Departure." "In many of Phillips' Code PL, 202; post, "Sev- the states which have adopted the eral Counts." code system great latitude has been 52.] PROCEEDINGS IN AN ACTION. 99 cedure it is quite as essential that the complaint indicate the character of the cause of action. 1 COMMON-LAW RULE: The declaration must ~be conformable to the original writes) 2 This is a rule of high antiquity, being laid down by Bracton, (f) who wrote in the reign of Henry III., a period at which the system of pleading was in a very rude and imperfect state. It may be exemplified as follows: In detinue, where the writ stated the value of the goods which were the subject of action to be 20Z., and the declaration al- leged 4:01., the variance was, in an old case, considered as a ground for reversing the judgment upon writ of error, (u) And in trespass, where the writ charged the defendant with break- ing the close of the plaintiff, and the declaration with breaking his closes, the decision was the same, (a?) The rule is to be taken, however, subject to this qualification : that the declaration in general may and does so far vary from the writ that it states the cause of action more specially, (y) This the reader may see exemplified in the specimens of writs and declarations given in the first chapter, though it is more observable with respect to the writs of debt and covenant, etc., which are in a general form, than the writs of a special kind, such as trespass and trespass on the case. Though it has been thought desirable to notice this rule, it is at the same time to be observed that it has lost much of its practical importance, as it can rarely now be enforced. For, if the declaration varied from the original, the only modes of objecting to the variance (unless the fault happened to appear by the recital in the commencement of the declaration) were by plea in abatement or by writ of error. (3) But by a change (s) Com. Dig., Pleader (C. 13); Bac. Ab., Pleas, etc. (B.), 4; Co. Litt. 303 a; Bract. 431 a, 435 b. (t) Bract., ubi supra. (u) Young v. Watson, Cro. Eliz. 308. (a;) Edward v. Watkin, id. 185. (y) Com. Dig., Abatement (G. 8); Pleader (0. 15); Co. Litt. 303 b. (z) 1 Saund. 318, n. 3. Supervisors vs. Decker, 30 Wis. When a writ of attachment pro- 624; Phillips' Code PL, 202. ceeds upon one theory the declara- 2 Dicey says that when a joinder is tion or complaint must conform to allowed the reason for the rule the same. Wright v. Snedecor, 46 ceases, and it amounts to abolishing Ala. 92; Hambrick v. Wilkins, 65 the form. Dicey on Parties, p. 64. Miss. 18, 7 Am. St. R 631. CAUSES AND FORMS OF ACTION. [ 53. of practice explained in the first chapter, a plea in abatement in respect of such variance can now no longer be pleaded; (a) and, by the statutes of jeofails and amendments, the objection cannot now be taken by way of writ of error after verdict; nor, if the variance be in a matter of form only, can it be taken after judgment by confession, nil dicit, or non sum informa- tus. (b) l However, the effect of the rule is still felt in plead- ing; for its long and ancient observance had fixed the frame and language of the declaration in conformity with the original writ in each form of action; and, by a rule which has already been considered, to depart from the known and established tenor of pleadings is a fault ;(. 111 9 - i Dils v. Justice, 10 Ky. L. Rep. 547. s Pearson v. Herr, 53 111. 144; Gid- M Vo ll v. Butler, 49 Cal. 74, 116 CAUSES AND FORMS OF ACTION. [ 71. In HOUSG v. Keiser, 1 where one in the morning entered upon a portion of a tract of land in the possession of another, and inclosed it with a fence and put a house on it before sun- down, it was held that he did not acquire such a peaceable possession as to enable him to maintain the action against the possessor, who, at sundown of the same day, destroyed the house and fence and drove him away. The force necessary: The force inhibited by the act is actual force, and force is an essential element to the action. 2 A mere trespass will not sustain the proceeding; there must be the element of force, or violence, or terror to the occupant. 3 Force is the gist of the action ; and entry by means of keys is not a forcible entry. 4 But where one entered an office in the night by means of skeleton keys, and threw the furniture out and prevented plaintiff from entering, these acts were taken as one transaction and the action sustained. 5 "Where the orig- inal entry is lawful, and force is not used to prevent the plaintiff from regaining possession, the action cannot be sus- tained. 6 The judgment and damages: Under Statute 8 Hen. YL, on judgment for the plaintiff the possession was restored together with treble damages. 7 In New York, under the code, a simi- lar rule prevails. 8 The parties must be restored to the statu quo, and then the party out of possession must resort to the law to obtain what he claims. 9 In all cases of forcible entry nominal damages may be re- covered for the trespass ; and, in addition, damages for injuries to the person or personal property of the plaintiff. Exem- plary damages may also be awarded if the act be done in a wanton and reckless manner. 10 1 8 Cal. 500. 6 Schmidberger v. Bloner, 66 Hun, 2 Fort Dearborn Lodge v. Klein, 527. 115 111. 177; Hodgkins v. Jordan, 29 7 3 Cooley's Black. (3d ed.) 179 et Cal. 577 ; Wylie v. Wacldell, 52 Ma seq. App. 226. 8 See 'Stover's Anno. Code N. Y., s Ely v. Yore, 71 Cal. 130; Wood 1577, 1927. v. Phillips, 43 N. Y. 152; Castro v. 9 Iron Mountain & H. R. R. v. John- Tewksbury, 69 Cal. 562. eon, 119 U. S. 608. < Livingston v. Webster (Fla., 1890), 10 Moseller v. Deaver (N. C.) ; and see 8 S. Rep. 442. note to this case in 8 L. R. A. 537. *Greeley v. Spratt, 19 Fla. 644, 72.] PROCEEDINGS IN AN ACTION. 117 In California, in an action for forcible entry, the plaintiff may recover damages occasioned thereby, together with a judgment for the restitution of the premises. 1 Statutory remedy for premises unlawfully detained, simply: In many states the action may be maintained under the stat- ute by landlord, vendee, mortgagee, trustee or other person against whom the possession is withheld, by tenant, vendor, mortgagor, grantor or other person, after the expiration of his right by contract, express or implied. 2 Under statutes Demand: Where the entry is forcible, de- mand before suit is unnecessary. 3 A distinction is to be made between such cases and one where there is an unlawful de- tainer after peaceable entry. 4 72. The action of waste should receive particular atten- tion, although our author does not mention it, notwithstanding the writ of waste was not abolished in England until about ten years after the publication of his work : the reason probably is found in that the writ had fallen into disuse, and given way to the remedy by the action on the case. "Waste differed from trespass in that it was most frequently brought against one in the lawful possession of the land. Besides the legal remedies for waste, equity would interfere to prevent it. The subject receives quite full treatment, with notes citing many American authorities, in Judge Cooley's edition of Blackstone. 5 The action of waste was formerly a mixed action. 6 The action on the case in the nature of waste was devised to avoid the defective and inadequate remedy afforded by waste. It is an equitable action, and is not to be discountenanced by any technical consideration, but must be sustained in all cases and against all persons who are by the statutes of Marlbridge or Gloucester, or by the common law, liable to waste. 7 It may be brought against a stranger as well as against a ten- 1 Deering's Anno. Code of Cal., Still man v. Palis, 134 111. 532. 1160 et seq. ; Anderson v. Taylor, Farncomh v. Stern, 18 Colo. 279. 56 Cal. 131. 3 Cooley's Black. (3d ed.) 223. See, 2 See Ragan v. Harrell, 52 Miss, also, Jerome v. Ross, 7 John. Ch. 315 ; 818; Stillman v. Palis, 134 111. 532; Griffith v. Hillard, 64 Vt 64a Labro v. Campbell, 56 N. Y. Supr. 70 ; 63 Cooley's Black. 224. Kellogg v. Groves, 53 la. 395 ; Ems- "> See White v. Wagner, 4 H. & J. .ey v. Bennett, 37 id. 15 ; McClain's 373. Anno. Iowa Code (1888), 4860. 118 CAUSES AND FORMS OF ACTION. [ 73. p ant. 1 By the statute of Gloucester (6 Edw. L, ch. 5), the plaintiff in an action of waste could recover not ouly the place wasted, but treble the damages. And this was adopted in Massachusetts. 2 By statute in Maine either waste may be maintained by which the property may be recovered, together with dam- ages or an action on the case in the nature of waste. 3 "While trespass is an injury to the possession, waste is com- mitted or suffered by the person actually or constructively in possession. 4 But under the code the owner of real estate which is in the actual occupation of a tenant may maintain an action against a trespasser for an injury to his estate. 5 "Waste did not lie against a stranger; but case in the nature of waste was a different remedy, and was coextensive with the liability to injury. 6 An action on the case in the nature of waste was a common-law remedy, 7 and it has been adopted in some of the states. It may be brought against any one committing the wrong. 8 Chancery has always gone greater lengths than the courts of law in staying waste. The usual remedy now is by in- junction to restrain from waste, and this remedy is applicable to every species of waste. 9 73. The writ of entry was a very ancient common-law remedy for the trial of the title of land, and is quite fully de- scribed by Blackstone, who points out that it was a much more simple and speedy remedy under the Saxons than after the Conquest. An original writ of entry was a writ requiring the sheriff to command the tenant of land that he render to the demand- ant the possession of the premises in question, or to appear in court on a certain day named to show cause why he has not done so. 10 The writ was abolished in England by Statute 3 1 Dupree v. Dupree, 4 N. C. R 387 ; 6 Chase v. Hazelton, 7 N. H. 171 ; Bacon v. Smith, 41 Eng. C. L. 571 ; 3 Cooley's Black. (3d ed.) 227. Dickinson v. Mayor, etc., 48 Md. 583. ' 1 Washb. Real Prop. (5th ed.) 159. * Sackett v. Sackett, 8 Pick. 307. 8 Thomas v. Crofut, 14 N. Y. 474. s Stetson v. Day, 51 Me. 434 9 Hawley v. Clowes, 2 Johns. Ch, Cooley on Torts (2d ed.), 392. 122 ; Cooley on Torts (3d ed.), 395. 6 Brown v. Bridges, 31 la. m 10 3 Cooley's Black. (3d ed.) 180-184; Newell, Ej. 88a 73.] PROCEEDINGS IN AN ACTION. 119 and 4 William IV., chapter 27. The freehold must be in the demandant. 1 The writ of entry sur disseisin still survives in Maine, New Hampshire and Massachusetts. 2 By statute in Maine any estate of freehold, in fee-simple, fee-tail, for life, or any term of years, may be recovered by writ of entry. And to a good declaration four things are necessary: 1. The premises demanded must be clearly de- scribed. 2. The estate which the demandant claims in the premises must be stated. 3. An allegation that the de- mandant was seized of the estate claimed within twenty years 4. A disseisin of the tenant. 3 Damages which a demandant may recover are the " clear annual value of the premises " during the time the tenant was in possession, and damages for waste, but not consequential dam- ages for alleged injuries to adjoining lands belonging to the demandant ; and the defendant may set off taxes and necessary expenses and the value of improvements. 4 If the land demanded is subject to an easement the judg- ment will not disturb the easement. 5 Where all the deeds under or through which a demandant claims are merely re- leases and quitclaim conveyances, and it does not appear that any of the grantors were ever in possession, such demandant cannot recover. 6 But this doctrine is not applicable where the title of each side comes down from the same grantor. 7 Possession under a claim of right constitutes a legal seisin, which will avail against everyone not having an older and better title. 8 Equitable title is not sufficient to sustain a writ of entry. 9 But an equitable defense will defeat the action. 10 Where the claim of the tenant is merely an easement the de- mandant cannot recover damages. 11 The demandant must recover upon the strength of his own title and not upon the weakness of that of the tenant. If a tenant in common brings the writ without joining his co- 1 Webster v. Gilman, 1 Story (U. S.), ' Wiley v. Williamson, 68 Me. 71. 499. spettingell v. Boynton, 139 Mass. * Potter v. Baker, 19 N. H. 166. 244 ; Gibson v. Bailey, 9 N. H. 168. Wyman v. Brown, 50 Me. 139. Eastman v. Fletcher, 45 Me. 302. McMahan v. Bowe, 114 Mass. 140. Nott v. Sampson Mfg. Co., 142 6 Ayer v. Phillips, 69 Me. 50. Mass. 479. Rand v. Skillin, 63 Me. 103, Cole v. Eastham, 124 Mass. 307. 120 CAUSES AND FORMS OF ACTION. [ 74r. tenants, he is entitled to recover only the undivided portion to which he proves a sufficient title. 1 A general description of the premises is sufficient. 2 It must, however, be made so certain that seisin may be delivered to the sheriff without reference to any description dehors the writ. 3 In general, the action must be against the person claiming an estate not less than freehold. This is not so in case of ouster. To defeat the action on the ground that he was not tenant of the freehold, and had not ousted the demandant, the tenant must plead non-tenure in abatement. 4 The writ is sufficient if it alleges a fee. 5 74> Trespass to try title. Instead of the action of eject- ment, some of the states have substituted trespass to try title. It is in form an action of trespass quare clasum fregit, with the additional element of a notice to the effect that the action is brought to try the title to the lands in controversy, as well as for the recovery of damages. 6 In Texas this is the exclusive form of action for the trial of suits involving questions of controverted title. 7 It formerly existed in South Carolina as a substitute for ejectment, but was lately abolished. 8 Though all fictitious proceedings in the action of ejectment have been abolished, the principles of justice and equity which were administered under that form of action are nevertheless the rules of action and construction in trespass to try title. 9 The owner of land may by a fiction elect to consider him- self ousted and bring suit against an adverse claimant of the land, even though such claimant has never been in actual pos- session. 10 The action may be maintained to recover the posses- sion and rents from a tenant holding over after the expiration of his term. 11 1 Butrick v. Tilton, 143 Mass. 9& 7 See R S., Tex., 1879, ch. 1, tit. 96, 2 Baker v. Bessey, 73 Me. 473. p. 703. Pettingell v. Boynton, 139 Mass. 8 See R S., S. C., 1873, 588. 244. 9 Hough v. Hammond, 36 Tex. 657. < Wyman v. Brown, 50 Ma 139. "> Titus v. Johnson, 50 Tex. 224. 'Baker v. Bessey, 73 Me. 472; But- "Thurber v. Conners, 57 Tex. 96; rick v. Tilton, 141 Mass. 93. Lamb y. Beaumont Temp. Hall Co.. 6 See Kennedy v. Campbell, 2 Tr. 2 Tex. Civ. App. 289. Con. R (& C.) 760. 74.] PROCEEDINGS IN AN ACTION. 121 When the legal title is held by the defendant for a third person, such third person is properly admitted as a party de- fendant to protect his interest. 1 The plaintiff must rely for recovery upon his own title and that which he has at the in- stitution of the suit: a title subsequently acquired cannot avail him. 2 The action may be maintained upon an equitable as well as the legal title. The remedy was designed to be broad enough and effective enough in its scope to embrace all character of litigation affecting the title to real estate. 8 It may be maintained upon a bond for title. 4 The claimant must prove the title under which he claims, and must also prove that the land described in his petition is the same pos- sessed by the defendant, unless he is relieved from so doing by the pleading or admission of the defendant. 5 Defendant cannot question the validity of his grantor's title at the time of conveyance to him in a contest with a plaintiff claiming under the same grantor, unless he has a blaim under a paramount title. 6 When recovery is sought against naked trespassers without title or color of title, the defense of stale demand is unavailing to defeat the right of recovery. 7 The defendant pleads " not guilty." This does not admit a trespass on his part, but calls upon the plaintiff not only to prove title in himself but also to prove an actual or con- structive trespass by some character of adverse claim or as- sertion of title or interest by defendant. 8 Where the plaintiff's interest in several tracts of land arises from one transaction they may all be sued for in one action. 9 The verdict must explicitly locate the boundaries. 10 Plaint- iffs will not be permitted to recover a tract of land not de- scribed in their petition. The burden is upon them to show that the defendants were in possession of the land described in the petition. 11 1 McPherson v. Johnson, 69 Tex. Swearingen v. Reed, 2 Tex. Civ. App. 484. 364. Collins v. Sallow, 72 Tex. 330 ; 1 Wright v. Dunn, 73 Tex. 293. Barnes v. McArthur, 4 Tex. Civ. App. Titus v. Johnson, 50 Tex 224 ; 71. Stroud v. Springfield, 28 id. 649. Hardy v. Beaty, 84 Tex. 563. Murrell v. Wright, 78 Tex. 519. 4 Wright v. Dunn, 73 Tex. 293. 10 McCurdy v. Bullock, 2 Tex. Civ. 6 Stroud v. Springfield, 50 Tex. 224. App. 223. 8 Cooke v. Avery, 147 U. S. 375; u Medlin v. Wilkins, 1 Tex Civ. App. 465. 122 CAUSES AND FORMS OF ACTIOX. ' [ 75, 76. The judgment is in form for the recovery of damages, but the successful plaintiff is entitled to a writ of habere facias possessionem. ED.] 75. Personal actions. Of personal actions the most com- mon are the following: debt, covenant, detinue, trespass, tres- pass on the case (including assumpsit), and replevin. 76. The [action] writ of debt lies where a party claims the recovery of a debt, i. e., a liquidated or certain sum of money alleged to be due to him. [This brief sentence does not indicate, sufficiently for our purpose, the nature of the action of debt as distinguished from assumpsit and covenant. There is something more than a distinction between names indicated by these designations. There is a substantial, practical differ- ence in the nature of the cause of action upon which the suit is based ; and it is a distinction which the American lawyer must needs appreciate before he is able to select and apply the remedies which are afforded against a party who disregards the obligation of his contract, for the reason that upon this distinction depends the selection and indication of the theory of his suit. The cause of action \yhich is made the basis of the form of action designated debt is a sum of money due accord- ing to the terms of some obligation to pay money, 1 which may be an oral, a written, an implied contract, 2 or an express obliga- tion imposed by a public law, be it custom, statute, or a city ordinance. 3 Assumpsit proceeds upon the different idea of recovering damages for the breach of a contract, 4 although, as we shall see, it may be adopted as a concurrent remedy with debt where the money is due upon a contractor an instalment; 5 while 1 See Anson, Contracts (2d ed.), 3 Anson on Contracts; Stockwell pp. *37, *363; United States v. Colt, v. United States, 13 Wall 543; Baum Pet. C. C. 45, 25 Fed. Cas. 581; 1 Dill. v. Tonkin, 110 Pa. St. 569. Mun. Corp., sec. 408 et seq. 4 The action for debt is older than 2 It was in ancient times the com- the action for damages arising for mon action for goods sold, work and breach of contract. See Anson, Con- labor, on the theory of an express or tracts (3d Am. ed.), pp. *38, *362; implied obligation to pay money, al- Andrews' Am. Law, pp. 728-725. though the sum was not precisely *> See post, p. 133; United States v. fixed. Rudder v. Price, 1 H. Blk. Colt, Pet. C. C. 45, 25 Fed. Cas. 581; 547; United States v. Colt, Pet, C. C. Andrews' Am. Law, pp. 762, 763, note. 145. 76.] PROCEEDINGS IN AN ACTION. 123 covenant is distinguishable from these actions because of the special form of action on the special form of contract, viz. : a contract under seal. Anson, speaking of the breach of con- tract, says: "A breach always gives a right of action, but does not always discharge the contract;" and proceeding, says: " The discharge of contract is indicated with some precision ly the pleadings in use before the judicature acts. Many of the cases which illustrate this part of the subject turn upon the question of pleadings, and we shall find that the under- standing of the remedy, as often happens, is a material assist- ance to the ascertainment of the right." * A distinguishing feature of this form of action was formerly supposed to consist in the certainty of the amount to be recovered, i. e., the re- covery of a liquidated or fixed amount of money, or nothing, and so it was formerly stated that a recovery could not be had for more or less. 2 This strictness seems never to have been well founded, and the action was always upheld in all cases where the thing to be recovered was money as distinguished from a specific chattel (though it be designated pieces of money), and the sum was certain or capable of ascertainment by com- putation or estimate. 3 These considerations make it clear why debt is an appropri- ate remedy to recover a fixed penalty imposed by statute or the ordinances of a municipal corporation. 4 ] 1 Anson on Contracts (3d ed.), pp. English case (Hochaster v. De La 276, 277. The reader will see that in Tour (1852), 2 El. & Bl. 678, and Roehm the case of anticipatory breach of v. Horst, 178 U. S. 1, which is the contract, or even in case of non-pay- modern ruling case), see article by ment of an instalment of an entire Mr. Paul A. Moses in Nat'l Corp. Rep., contract, "debt" was not theoretically vol. 31, Nos. 3, 4 and 5. See L. S. & an appropriate action, there being M. S. Ry. Co. v. Richards. 152111. 59, 30 nothing due according to the terms L. R. A. 33; Note to Gerli v. Poide- of the contract (Rudder v. Price, 1 bard Silk Mfg. Co., 80 L. R. A. 61. H. Blk. 547), whereas for a monthly or 2 3 Cooley's Blk. (4th ed.), 154; stated instalment debt would be the Hughes v. Union Ins. Co., 8 Wheat, natural remedy, and assumpsit being 311, and note; Rudder v. Price, 1 H. allowed only by indulging the ficti- Blk. 547. tious promise to pay, because the sum 3 See opinion of Justice Washing- was due. See "Action of Assumpsit." ton in United States v. Colt, supra, For a very able and exhaustive dis- also reported in 8 Wheat. App. 17. cussion of the doctrine of anticipa- 4 3 Cooley's Blk. (4th ed.),*l 60. *161; tory breach, explaining the leading Stockwell v. United States, 13 Wall. CAUSES AND FOKHS OF ACTION. [77. FOKM OF WRIT OF DEBT. George the Fourth, etc., to the Sheriff of , Greeting: Command C. D., late of , gentleman, that justly and without delay he render to A. B. the sum of pounds of good and lawful money of Great Britain, which he owes to and unjustly detains from him, as is said. And unless he shall do so, and if the said A. B. shall make you secure of prose- cuting his claim, then summon, by good summoners, the said C. D., that he be before us, in eight days of Saint Hilary, wheresoever we shall then be in England, (c) to show where- fore he hath not done it; and have you there the names of the summoners and this writ. Witness ourself, at Westminster, the day of , in the year of our reign, (d) 2 77. [The action of account was obsolete in England at the time our author wrote. 3 The action, though supplanted by the (b) This is debt in the debet, which is the principal and only common form. There is an- other species mentioned in the books, called debt in the detinet, which lies for the specific recovery of goods under a contract to deliver them. 1 Chitty, 101. (c) "Before us, wheresoever we shall then be in England," expresses, in writs, the court of king's bench; where the action in this and the folio whig examples is supposed to be brought. (d) Tidd's Practical Forms. 543; W. U. TeL Co. v. Scircle, 103 Ind. 227. 1 The writ of debt only will be pre- served in order that the student may compare the writ with the declara- tion. 2 This is the form of action of debt as it was; it was called in the debet. There is another form of this action which is now obsolete, being re- placed by replevin. It was used for the recovery of specific chattels. Debt against an executor should be in the detinet, unless he has made himself personally responsible as by devastavit. Childress v. Emory, 8 Wheat. 642. 3 But I do not find that even mat- ters of account between copartners belong exclusively to this court, though in practice they may be con- fined here. Courts of law and equity have concurrent jurisdiction in mat- ters of account; and it Is conceded that an action of account at law may be brought by one partner against another. Co. Litt. 17 la; Montague, Partn., vol. 1, 45. In that action the auditors have all the requisite pow- ers, for they can compel the parties to account, and to be examined under oath; and I have not been able to discern any good reason why that action has so totally fallen into dis- use. The practice also, under the statute, of appointing referees in matters of account is a new power given to our courts of law; and it would seem to render the cognizance of such causes much more suitable for a court of law here than in Eng- land. This court has no better mode of settling accounts than by referees; and it is, in many cases, under the necessity of appointing a merchant, or other skilful accountant, to assist 77.] PKOCEEDINGS IN AN ACTION. 125 equitable suit of accounting, 1 is still not entirely obsolete in the United States. At common law it lay to compel an ac- count and settlement against a guardian in socage, bailiff, or by one merchant against another on open account; but for- merly it would lie only between the parties to the agreement and not against their executors or representatives, nor in part- nership matters where there were more than two partners. 2 This was remedied in England by statute. 3 The scope of the action has been extended in the United States to all situations where there is a liability to account. 4 The theory of the ac- tion is not that the defendant is indebted to the plaintiff, but that he is obliged to account, 5 and consequently the auditors are not confined to rendering an account of money due against the complaining party, but the judgment may be against the plaintiff; 6 and, unlike actions for money or actions sounding in damages, the judgment may be for more than is asked. 7 A jury trial is allowed and required in such cases, but the trial is confined to the single issue, as to whether there is a liability to account, while the statement and balance of account are left to auditors; 8 and the judgment quod computet is not a the master in taking and stating the proportion of rents, etc. Barnum v. accounts. Duncan v. Lyon, 3 Johns. Landon, 25 Conn. 137. And to dis- Ch. 351, 1 L. ed. 644. close the state of the account be- 1 Neal v. Keel's Ex'rs, 4 T. B. Mon. tween principal and agent. Shriver 162; McMurray v. Rawsom, 3 Hill, v. Nimick, 41 Pa. St. 80. 59; Duncan v. Lyon, supra. In Illinois, if the defendant fails to 2 In Vermont the remedy is ex- appear or refuses to account, appear- tended to an accounting between ance and accounting may be corn- three or more partners, and even pelled by attachment of his person, where one partnership interest is Starr & Curt. 111. St., vol. 1, p. 188. represented by an administrator. The defendant may plead that he Park v. McGowen, 64 Vt. 173. is willing to account, confessing his 3 4th Ann., ch. 16. See 3 Cooley's liability, which renders a trial un- Blk. (4th ed.) 163. necessary; or he may plead a full 4 Andrews' Am. Law, p. 1074. account rendered plene computa- 5 Id. It will not lie where a final vit. Lee v. Abrams, 12 111. 111. Or settlement of accounts has been he may deny his liability to account, made, and a balance struck. An- Lee v. Abrams, supra; Garrity v. drews v. Allen, 9 S. & R. 241 ; Morgan Hamburger Co., 136 III 499. v. Adams, 37 Vt. 233. It will lie in <*McPherson v. McPherson, 11 N. C. Illinois on book accounts. Garrity 400; Hawley v. Burd, 6 111. App. 454. v. Hamburger Co., 136 111. 499. It 7 Gratz v. Phillips, 5 Binney, 564; may be brought by one tenant in Lee v. Abrams, 12 111. 110. common against a co-tenant for a 8 Duncan v. Lyon, 3 Johns. Ch. 351. 126 CAUSES AND FORMS OF ACTION. [ 79. final and appealable judgment. A final judgment is rendered by the court on the finding of the auditors or referees for the amount found due by them. Under the Illinois practice an action of assumpsit may be changed to account and proceed to conclusion according to the theory and practice in such cases. 1 78. The writ of covenant lies where a party claims dam- ages for breach of covenant, i. e. t of a promise under seal? Its form is as follows: [Omitted.] Where by statute the distinction between sealed and simple contracts is abolished, of course the effect is to obliterate the distinction between the form of action. 8 79, The writ of detinue lies where a party claims the specific recovery of goods and chattels, or deeds and writings, detained from him. 4 This remedy is in somewhat less fre- 1 Garrity v. Hamburger Co., 136 III 499. 2 Covenant will lie only where the instrument is actually signed and sealed by the party or by his author- ity. A recognition of the contract, though in writing and under seal, will not make it a covenant. Gale v. Nixon, 6 Cow. 445. On a writing under seal for the payment of an uncertain sum, covenant is the proper action. Wilson v. Hickson, 1 Blackf. 230. The action is not confined to covenants framed in any particular words, but may be maintained upon any sealed instrument where the words import an agreement. United States v. Brown, 1 Paine (U. S.), 422. The only breach that can be assigned is of a covenant contained in the contract. Merriam v. Bush, 116 Pa. St. 276. It must be alleged that the instrument is under seal. Bilder- back v. Pouner, 7 N. J. L. 64. The covenant may be set out in his own words, but this is not necessary. It is enough if a substantial breach, is shown. Fletcher v. Peck, 6 Cranch, 87; C., M. & St. P. R Co. v. Hoyt, 37 J1L App. 64, 3 So, also, statutes destroy the dis- tinction by direct declaration. Brad- ley Salt Co. v. Norfolk, etc. Ry. Co. (1898), 95 Va. 461. 4 To maintain detinue or the cor- responding statutory action for the recovery of chattels in specie, the plaintiff must be clothed with the legal title and the right to the posses- sion of the goods sued for. Boulden v. Estey Organ Co., 92 Ala. 182; Graham v. Meyers, 74 id. 432; Robinson v. Peterson, 40 111. App. 132. In order that the plaintiff may re- cover it is necessary to show not only that he is entitled to the possession of the property claimed in his decla- ration, but also that said property is personalty. McFadden v. Crawford, 36 W. Va. 671. But a mere wrong- doer is not permitted to question the title of one from whose possession he took the goods. Huddleston v. Huey, 73 Ala. 215. A detention may be included in a trespass or conversion; but there may be a detention, sufficient to sup- port detinue, when there has been neither a trespass nor a conversion, and when neither trover nor trespass 80.] PROCEEDINGS IN AN ACTION. 127 quent use than any of the other personal actions above enu- merated. The form of the writ is as follows : [Omitted.] [In detinue the cause of action is the detention, and the action was originally brought only when the taking was lawful. 1 But this rule is generally changed, or, in the substituted action of replevin, the taking may have been lawful or unlawful. 2 A change of the theory of the action to one seeking damages for unlawful taking or detention would change the cause of ac- tion. 3 ] 80. The writ of trespass [vi et armis] lies where a party claims damages for a trespass committed against him, A tres- pass is an injury committed with violence; and this violence may be either actual or implied; and the law will imply vio- lence though none is actually used, where the injury is of a direct and immediate kind, and committed on the person, or tangible and corporeal property, of the plaintiff. Of actual vio- lence, an assault and battery is an instance; of implied, a could be maintained. Wittick v. Traun, 27 Ala. 562; Schulenberg v. Campbell, 14 Mo. 491. The action may be maintained though the defendant has parted with the possession of the chattel sued for. See Caldwell v. Fenwick, 2 Dana, 333; Haley v. Rowan, 5 Yerg. 301. And where the property perishes pending the suit, the plaint- iff may recover the alternative value unless the defendant pleads the fact puis darrein continuance, Arthur v. Ingels, 34 W. Va. 639. Detinue may be maintained for the detention of things severed from the freehold and converted into chat- tels so long as the identity of the original material can be traced. Cooper v. Watson, 73 Ala. 252. See Election of Remedies. A public office is not property; its value cannot be measured. Detinue will not lie for the delivery of a commission against another officer who wrongfully re- fuses to issue it. Mandamus is the proper remedy. Marbury v. Madison, 1 Cranch, 137. The judgment is in the alternative: first, that the plaintiff do recover the goods in question, specifically; or, if he cannot have the goods, that he recover the value thereof, and his damages for the detention. See Greene v. Lewis, 85 Ala. 221, 7 Am. St. R. 42. The common-law action of detinue may be maintained in New Hamp- shire. Dame v. Dame, 43 N. H. 37. This form of action is still in force in Illinois; and replevin is not, in all cases, an available substitute for it. Robinson v. Peterson, 40 111. App. 132. In New York and some other states the action has been replaced by some other covering substantially the same ground. See Harris v. Hillman, 26 Ala. 380. 1 Dame v. Dame, 43 N. H. 37. 2 Steamship Co. v. Sheahan, 123 N. Y. 461. Id. 128 CAUSES AND FOBMS OF ACTION. [ 80. peaceable but wrongful entry upon the plaintiff's land. The form of the writ is as follows: [Omitted.] [The cause of action in trespass is in many cases extremely difficult to distinguish from the cause of action in trespass on the case, and in most states the distinction in the form of ac- tion is abolished; 1 but in many cases, where the damage is occasioned by force, the same facts will permit a choice as to what incidents the plaintiff will choose as the gist of the ac- tion the negligence or wilful intent of the defendant, or the forcible act, i. e., the force and arms ; and, in order to indicate this difference in the theory of the case, a difference in the plead- ing is required. For example, where one negligently drives his carriage against the carriage of another, damaging it, the latter may select as his cause of action the negligence (i. e., the defendant omitted his duty of care), and claim that the damage was consequential, and frame his action as in case, or he may base his case on the forcible invasion of his right to security and regard the damage as the direct, immediate re- sult of the force, on which theory the action is trespass vi et armis? The criterion for distinguishing trespass from any other wrongful interference with person or property is not force simply, but the relation of the force to the injury. If the di- rect result of the unlawful forcible act causes damage, trespass lies; if the damage is remote and the first act unlawful, the action is case. 3 The act must be voluntary ; but, as shown by Guille v. Swan, 4 this is only in a qualified sense. If the act done is voluntary, it is not necessary that the party knew it was unlawful. Thus, if he carry away the chattels of another iPost, p. 131, note 3. nection with a great English case, 2 The arguments and opinion in viz. : the Squib Case. Scott v. Shep- Percival v. Hickey, 18 John. 257, go perd, 2 Win. Black. 892; s. C. reported very thoroughly into the distinction in 3 Wils. 403, 4 Smith's L. C. 796; between case and trespass, and the Cotteral v. Cummins, 6 S. & R. 343; statement at page 289 is singularly Guille v. Swan, 19 Johns. 381, 10 clear and apt to express the distinc- Am. Dec. 234 A wrongful intent is tion in substance which survives the not necessary. Ricker v. Freeman, abolition of forma 50 N. H. 420, 9 Am. R 267. See Percival v. Hiokey, supra. The Cooley on Torts (2d ed.), *439. question is always discussed in con- 4 19 Johns. 381. 80.] PROCEEDINGS IN AN ACTION. 129 supposing them to be his own. 1 But the intent may be mate- rial in determining whether an act which may be either lawful or unlawful is a trespass ; 2 who has a right of entry against any defendant who obtains the estate. McCann v. Rathbone, 8 R. L 297. In Michigan the party having the right to the present possession is always entitled to recover it Covert v. Morrison, 49 Mich. 133; Berham v. Cook, 43 id. 573. The plaintiff must have, at the time of commencing the action, a valid subsisting interest in the prem- ises claimed, and a right to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial. How. (Mich.) Stats., 7790. See, also, the statutory provisions in Illinois, Iowa, Indiana, Tennessee, Virginia, West Virginia and Wiscon- sin, and the following cases : Barco v. Fennell, 24 Fla. 378 ; Asia v. Hiser, 142 CAUSES AND FORMS OF ACTION. [86. 86. Return of the writ. The different forms of original writs and actions having been now in some measure ex- plained, it is time to consider the course of proceeding upon the original writ. 22 id. 378; Kirk v. Hamilton, 102 U. S. 68; Fears v. Merrill, 9 Ark. 559. But against a trespasser without color of title, ejectment may be main- tained on proof of prior possession. Bagley v. Kennedy, 85 Ga. 703; Hutchinson v. Perley, 4 CaL 33, 60 Am. Dec. 578; Dothard v. Denison, 27 Ala. 541 ; Wilson v. Fine, 38 Fed. Rep. 789; Smith v. Lorillard, 10 Johns. 338 ; McWhorter v. Heltzell, 124 Ind. 129 ; Am. Mortg. Co. v. Hop- per, 48 Fed. Rep. 47 ; Mobley v. Bon- ner, 59 Pa. 481. There must be an ouster or dispos- session of plaintiff. Aiken v. Bene- dict, 39 Barb. 400 ; Reed v. Tyler, 56 111. 288. The disseisin of things corporeal must be by entry and actual dispos- session of the freehold. Pedis pos~ sessio is necessary. Allen v. Holton, 37 Mass. 465. As to what is and what is not a sufficient disseisin, see Newell on Ejectment, 415 et seq. But under the statutes of some states, in the case of vacant lands, the ac- tion may be brought against one not in possession, but exercising acts of ownership, or claiming title. See Starr & Curtiss, R S. 111. 982. Eject- ment cannot be maintained for a tract of land of part of which the plaintiffs are in possession. Kribbs v. Downing, 25 Pa. 399. A tenant in common may maintain the action against his co-tenant who has dispos- sessed him (Moulton v. McDermott, 80 Cal. 323; Warfield v. Lindell, 30 Mo. 273, 77 Am. Dec. 614; White- man v. Hyland, 40 N. Y. a R 575), and may recover the entire property from a trespasser. Smith v. Smith, 80 Cal. 624. Until the settlement of the estate an administrator may maintain the action. Campau v. Campau, 19 Mich. 116 ; Miller v. Ho- berg, 22 Minn. 249; McRae v. Mc- Donald, 57 Ala. 423; Jones v. Billstein, 28 Wis. 227 ; Page v. Tucker, 54 CaL 121. The plaintiff must recover upon the strength of his own title, and not upon the weakness of his adversary's. Love v. Simms, 22 U. S. 515 ; Clarke v. Diggs, 28 N. C. 159, 44 Am. Dec. 73; Nelson v. Triplett, 81 Va, 238; Riggs v. Riley, 113 Ind. 208 ; England v. Hatch, 80 Ala. 247; Fussell v. Gregg, 113U. a 550. An equitable title will not support ejectment, the legal title alone being recognized as the ground of the ac- tion. Ruffners v. Lewis, 7 Leigh, 720, 80 Am. Dec. 513; Leonard v. Dia- mond, 31 Md. 541 ; Eaton v. Smith, 19 Wis. 537; Smith v. Hunt, 13 Ohio, 260, 42 Am. Dec. 201. So under the code in Nebraska. Dale v. Hunne- man, 12 Neb. 221. This is the rule of the federal courts. Langdon v. Sherwood, 124 U. S. 74; Oaksmith v. Johnson, 92 id. 343 ; Smith v. Mc- Cann, 65 id. 398. Neither equitable titles, it was said in a late case in Michigan, nor equitable defenses, can avail as a basis either of recov- ery or of defense. McKay v. Will. iams, 67 Mich. 547. In Pennsyl- vania, before the equity court was created, an equitable title would support the action. Swayze v. Burke, 37 U. S. 11. And in Missouri the statutes allow the action to be brought on incomplete titles, such as land warrants. Fenn v. Holme, 62 U. S. 21. See, also, Dodge v. Spier, 85 Ga. 585; Merrill v. Dearing, 47 Minn. 137. Under the codes any de- 87.] PROCEEDINGS IN AN ACTION. 143 Supposing it to be duly issued and executed on the defend- ant, it is next to be returned. It will be seen on inspection of the tenor of these instru- ments that the sheriff is commanded to have the writ itself in court on a certain day, viz. : the day on which the defend- ant is directed to appear there. On that day the writ is said to be returnable, and it is called the return day of the writ. In each of the terms, except Easter, there are four stated days called general return days; in that term five ; and on one or other of these general return days an original writ must be always made returnable. On the return day it is the duty of the sheriff to remit the writ into the superior court of com- mon law, with his return; that is, a short account in writing of the manner in which he has executed it. 87. Process. If the defendant does not appear in obedi- ence to the original writ, there issues, when the time for ap- pearance is past, other writs, also returnable on some general return day in the term, called writs of process, enforcing the appearance of the defendant either by attachment or distress of his property, or arrest of his person, according to the nat- ure of the case. These differ from the original writ in the following principal particulars: they issue not out of chan- cery, but out of the court of common law, into which the original is returnable; and accordingly are not under the great seal, but the private seal of the court; 1 and they bear fense that the party has may be set Wis. 84 ; Minke's Lessee v. McNamee, forth. Hicks v. Lovell, 64 Cal 17, 30 Md. 294. At common law the 49 Am. Rep. 679 ; Shawhan v. Long, damages recoverable were nominal. 26 Iowa, 488, 96 Am. Dec. 164; See Rector v. Gain es, 19 Ark. 90. A Wicks v. Smith, 18 Kan. 508 ; Ste- claim for damages for withholding vens v. New York, 84 N. Y. 305. An the freehold, and a claim for rents exhaustive treatment of the subject and profits, were distinct Larned v. of the title necessary to maintain Hudson, 57 N. Y. 151. The latter ejectment may be found in the note might be recovered in an action of to Hancock v. McAvoy, 18 L. R. A. trespass for mesne profits. Herres- 781. See, also, Newell on Eject, hoff v. Tripp, 15 R. L 92. But in 60 et seq. some states they may now be recov- The judgment must follow the ered in the main action. See Gard- complaint and cannot be for a ner v. Jones, 34 Miss. 505. greater interest or larger quantity 1 There is no other process in our of land. Home v. Carter's Adm'r. 20 courts than this mesne process. Fla. 45; Riehl v. Bingenheimer, 28 144 CAUSES AND FOKMS OF ACTION. [ 87. teste (that is, conclude with an attesting clause) in the name of the chief justice of that court and not in the name of the king himself. It may also be observed that in common with all other writs issuing from the court of common law during the progress of the suit, they are described as judicial writs, by way of distinction from the original one obtained from the chancery, (y) On these writs of process it is not necessary here to en- large ; (2) but there is one of them which will require some specific notice. It is that called a capias ad respondendum. 1 This writ directs the sheriff to enforce the appearance of the defendant by arrest of his person; and it lies in all the most usual personal actions. It is connected with the fol- lowing important relaxation of practice relative to the orig- inal writ. The capias, being only process, is of course reg- ularly issuable only after an original writ has been first sued out and returned ; but to save time and expense, (a) it has become the general practice, in all cases where it lies, to resort to it in the first instance^ and to suspend the issuing of the original writ, or even to neglect it altogether, unless its omission should afterwards be objected by the defendant. Thus the usual practical mode of commencing a personal acti-on by original writ is to begin by issuing, not an original, but a capias. It will be convenient, however, to explain more particularly the manner in which this is done. In the king's bench the plaintiff's attorney commences the suit by prepar- ing a draft (called aprcecipe) of the original writ, appropriate to the proposed action, in such form as is thought most proper and conformable to precedent. This he brings to the (jf) Bract. 418; 8 Cooley's Black. (8d ed.) 282. (z) Full information on this subject will be found in 1 Tidd, 106-198, 4th ed.; 1 Sellon, 64-102. (a) 3 Bl. Com. 281. 1 Capias is very generally in use forcible entry upon civil process in America, but is not so broad in its under the maxim, " every man's application now as formerly. Very house is his castle." Semayne's Case, generally, by constitution and stat- 5 Coke, 91, 1 Smith's I* C. 238. And utes, imprisonment for debt is not certain persons, i. e., certain men allowed, and it is only in cases where when acting in some capacity other the debt was incurred by fraud or than for their own private interest, actions of tort that capias may issue, are privileged. See 3 Cooley's Black. Certain places are privileged from (3d ed.) 287-8, note. 87.] PROCEEDINGS IN AN ACTION. 145 filacer (an officer of the court of common law, whose duty it is to issue the capias and other process on original writs), to serve as instructions for the preparation both of the original and the capias. To prepare or issue the original, indeed, is not the duty of the filacer, but of the cursitor (an officer of the court of chancery) ; but the filacer receives the prcecipe for the purpose of transmitting it afterwards to the cursitor, as instructions for the latter officer to prepare an original, if it should become necessary to issue that writ ; (o) and accord- ingly, he also receives from the plaintiff's attorney, on behalf of the cursitor, the fine which is payable to the king, on ob- taining an original, (c) In the meantime and without waiting for the intended original, the filacer issues the capias in the form marked out by thepr&oiptj and after this, the plaintiff having no actual use for the original, it is seldom, in fact, taken out from the cursitor's office. In the common pleas the common course of proceeding is similar but with this difference: that the prcBcipe is framed, and the capias made out, in a form not varying (as in the king's bench) according to the form of action really intended to be brought ; but always in that particular form of action called trespass, a fictitious method, pursued in a view to cheapness and expedition, (d) In this action of trespass no fine is payable on obtaining the original writ; and consequently the filacer receives none from, the plaintiff upon issuing the capias. Such is the usual practical mode of commencing personal actions by original writ, but it is not the invariable course, for in some cases, both in the king's bench and common pleas, the prcecipe is taken to the cursitor, and the original writ regularly made out and issued ; (e) and in all real and mixed actions, and also in personal ones, when the capias does not lie the same regular method must be pursued. And even when the action actually commences with a capias, in the manner above described, it is to be observed that the exist- ence and issuing of an original is still, in point of law, always supposed; that instrument being in principle required both as authority for the institution of the suit itself and for the (b) 1 Tidd, 98, 4th ed.; 1 Sellon, 212. (c) Attornies 1 Pract., Epit. 46. (d) 3 Bl. Com. 281; Sellon, Introd. xliil. A. B. ) And the said C. D., in his proper person, comes and defends the force and injury, and says that the said county of Chester is, and from time whereof the memory of man is not to the (a;) Vide post, pp. 238, 239. 1 Burchard v. Record (Tex.), 17 S. contrary appears; but in suits before W. R. 241; Baltimore & O. R. Co. v. the United States courts jurisdiction Harris, 12 WalL 65. While the codes must be shown. Dred Scott v. San- do not prescribe the common-law ford, 19 How. 393, Curtis, J., dissent- order of filing pleas, still the defend- ing. ant cannot lie by and make one de- Jurisdiction is said to be of three fense and then raise another which kinds: Of the subject-matter, of the belonged to a former stage at com- person, and of the thing. Cooper v. mon law. Wells v. Patton, 50 Kan. Reynolds, 10 Wall. 308. To this may 732; Douglas v. Phoenix Ins. Co., 138 be added, or it may be included in N. Y. 209. A plea to the jurisdiction the first, jurisdiction of the process after a demurrer and general denial or particular remedy. Grunion v. is too late. Meyer v. Sunol (Tex.), 21 Raymond, 1 Conn. 40, 6 Am. Dec. 200. S. W. R. 995. It is discretionary with note; Gurney v. Tufts, 37 Me. 133. the court to allow pleas out of order. Consent cannot give a court juris- Mex. Cent. Ry. Co. v. Pinkney, 149 diction of the subject-matter of an U. S. 194. See Phillips' Code PL, action, but it may of parties. Brady p. 149. v. Richardson, 18 Ind. 1; Cooper v. 2 Courts of general jurisdiction are Reynolds, 10 Wall. 308. presumed to have jurisdiction of the As a general rule, want of jurisdic- subject-matter of a cause unless the tion of the subject-matter may be 180 CAUSES AND FOKMS OF ACTION. [ 99. contrary hath been, a county palatine ; and there now are and for all the time aforesaid liave been justices there; and that all and singular pleas for the recovery of manors, messuages and tenements, lying and being within the said county, have been for all the time aforesaid, and still are, pleaded and pleadable within the said county of Chester, before the jus- tices there for the time being, and not here in the court of our lord the king, before the king himself. And this he is ready to verify. Wherefore, since the plea aforesaid is brought for recovery of the possession of the manors, messuages, lands and hereditaments aforesaid, within the said county palatine, the said C. D. prays judgment if the court of our lord the king here will or ought to have farther cognizance of the plea afore- said. (/) 99. A plea in suspension of the action is one which shows some ground for not proceeding in the suit at the present period, and prays that the pleading may be stayed until that ground be removed. The number of these pleas is small. Among them is that which is founded on the non-age of one of the parties, and is termed parol demurrer, (g) l Its form is as follows: (/) 1 Went. 49. (g) See Appendix, note (21). taken advantage of at any time it ap- pears during the progress of the suit. Black's Ex'rs v. Black's Ex'rs, 34 Pa. St, 354. It is said where the defend- ant pleads to the merits in the first instance, without insisting upon the want of jurisdiction, that the objec- tion is waived. Answer after objec- tion made and overruled is not a waiver of the objection. Harkness v. Hyde, 98 U. S. 476; So. Pac. R. Co. v. Denton, 146 U. S. 202. Pleas of this description, says Chitty, though in effect they abate the writ, yet differ from pleas in abatement, principally in three points, viz.: that they must be pleaded in person; that only half defense should be made, and that they should conclude si curia cog- noscere velit (whether the court should take cognizance), and not quod billa cassetur (that the bill may be quashed). 1 Chitty, 441. In United States courts, where the citizenship necessary to give juris- diction appears on the face of the record, evidence to contradict it can be admitted only under plea in abate- ment in the nature of a plea to the jurisdiction. Farmington v. Pills- bury, 114 U. S. 138; Hartog v. Mem- ory, 116 id. 588. Under the Washington code, if want of jurisdiction does not appear on face of complaint the defect may be pleaded in the answer. The de- fendant may demur if the defect ap- pears upon the face of the complaint. Plea in abatement is unnecessary be- fore answering to the merits. Greene v. Tacoma, 53 Fed. R. 562. A plea to the jurisdiction must show that there is another court in the state that has jurisdiction. Fain v. Crawford, 91 Ga. 30; Eidling v. Stewart, 7^ id. 539. 1 This paragraph is cited in Chitty's PL (14th Am. ed.) 447. He treats the subject as included in abatement, in- 100.] PROCEEDINGS IN AN ACTION. PAKOL DEMUEEER. In debt, by an heir sued on the bond of his ancestor. In the King's Bench. Term, in the year of the reign of King George the Fourth. O.B.) ats V A. B. ) And the said C. D., by , his attorney, who is ad- mitted by the court of our said lord the king here as guardian of the said C. D., to defend for the said 0. D., who is an in- fant under the age of twenty-one years, comes and defends the wrong and injury, when, etc., and saith that he, the said C. D., is within the age of twenty-one years, to wit, of the age of years, to wit, at aforesaid, in the county afore- said. And this he is ready to verify. Wherefore he does not conceive that during his minority he ought to answer the said A. B. in his said plea. And he prays that the parol may demur (K) until the full age of him, the said C. D. (i) 100. A plea in abatement of the writ is one which shows some ground for abating or quashing the original writ, and makes prayer to that effect, (k) l (h) Parol is the French word for loquela, which was the most ancient appellation of the pleading (vide supra, p. 146) ; demur is from demorrer, to stay. That the parol may demur means, therefore, that the pleading may be stayed. (9 2 Chitty, 472; Plaskett v. Beeby, 4 East, 485. (fc) See Appendix, note (22). stancing only the case of injury in to abate the writ, or defeat the pro- real actions, and noticing that this cess entirely, but to suspend it; and parol demurrer is abolished in Eng- the plea is defective when it con- land. The distinction between pure eludes either in bar or in abatement pleas in abatement of the suit and in of the writ. The former is a prayer bar of the action for some disability whether the plaintiff shall be further which could not be removed, and a answered, and the judgment to be plea in suspension of the suit, which entered upon it, when it shall be con- merely causes the suit to remain in fessed or maintained, is that the writ statu quo until the disability is re- aforesaid remain without day, donee moved, is clear, and has been often terrce fuerint communes, until the applied to temporary disability by intercourse or the peace of the two alienage, etc. Faulkland v. Hanson, countries shall be restored. Where 12 Mo. App. 400; Le Brett v. Papil- the effect of a plea is a temporary Ion, 4 East, 502 ; Hutchinson v. Brook, disability of the plaintiff, and nothing 11 Mass. 119. In the last case Judge more, a prayer of judgment of the Sewell says: "In time of war the writ is bad." plea of alien enemy is a temporary l Matter which merely defeats the disability only, which ceases with the present maintenance of the suit, but war. It is still called a plea in abate- which does not deny a right to a ment, although the effect of it is not remedy,is matter in abatement. Pitts' 182 CAUSES AND FOKMS OF ACTION. [ 100. The grounds for so abating the writ are any matters of fact tending to impeach the correctness of that instrument; i. 0., to show that it is improperly framed or sued out, without at the same time tending to deny the right of action itself. Thus, if there be a variance between the declaration and the writ, this shows that the writ was not properly adapted to the action, and is therefore a ground for abating it. So, if the writ appear to have been sued out pending another action already brought for the same cause, 1 if it name only one person as Sons' Mfg. Co. v. Com. Nat. Bank, 121 111. 582; Culver v. Johnson, 90 id. 91; Straight v. Hanchett, 23 111. App. 584 The conclusion of the plea determines its nature. Pitts' Sons' Mfg. Co. v. Com. Nat. Bank, supra. Any defect in the writ, its service or return, which is apparent from an inspection of the record, may be taken advantage of by motion. But where the objection is founded upon extrinsic facts, the matter must be pleaded in abatement, so that an issue may be made thereon and tried, if desired, by a jury, like any other issue of fact. Greer v. Young, 120 I1L 184; Pitts' Sons' Mfg. Co. v. Com. Nat. Bank, 121 id. 582. Plea in abatement, if it prevails, ends the suit. Kerr v. Willetts, 48 N. J. L. 78. Pleas in abatement being of a dila- tory character are not favored. But a plea setting up that there is an- other suit pending for the same cause of action has a more favorable posi- tion in court than one merely dila- tory. Still such a plea must not, in its frame, omit any of the essential requirements of law. Buckles v. Harlan, 54 I1L 361. If there is the least inaccuracy in this plea it cannot be supported. Lord Kenyon in Roberts v. Moore, 5 T. R. 488. The plea must be so com- plete and certain that the court can see that no answer can be made to its allegations but a denial of their truth or their sufficiency. 1 Chitty, PL 445; Gould v. Smith, 30 Conn. 90. No implication can aid it Mr. Justice McLean in Scott v. Sanford, 19 How. 393. Where in the commencement of the plea judgment was prayed of the writ and declaration, and in the conclusion of the writ only, it was held that this did not vitiate.it, being matter of form. Buckles v. Harlan, 54 III 361. Concerning pleas in abatement, see 3 Cooley's Black. (3d ed.) note. 1 That there is another suit pend- ing for the same cause must be pleaded in abatement. Moore v. Spiegel, 143 Mass. 413. Pendency of another suit in federal courts in the same territorial jurisdiction will abate. Smith v. Atlantic Mut. Ins. Co., 22 N. H. 21. Pendency of a suit for the same cause by the same plaintiff against the same defendant in another territorial jurisdiction cannot be pleaded in abatement. Walsh v. Durkin, 12 Johns. 99; Humphries v. Dawson, 38 Ala. 199; Smith v. Lathrop, 44 Pa. St. 326; Stanton v. Embrey, 93 U. S. 548; Kerr v. Willetts, 48 N. J. L. 78; Hatch v. Spofford, 22 Conn. 485. Nor can a suit be abated by a plea that an an- other action was afterwards com- menced. Nicholl v. Mason, 21 Wend. 339. Nor will a writ in personam at common law be abated by the pend- ency of a prior suit in rem in ad- miralty. Granger v. Circuit Judge, 27 Mich. 406. A plea in abatement is the proper way to take advantage of a non loo.] PROCEEDINGS IN AN ACTION. 183 defendant when it should have named several, or if it appear to have been defaced in a material part, it is for any of these reasons abatable. (1) l Pleas in abatement relate either To the person of the plaintiff, To the person of the defendant, To the count or declaration, or To the writ, (m) A plea in abatement to the person of the plaintiff or de- fendant is such as shows some personal disability in one of these parties to sue or be sued ; as, 2 that the plaintiff is an (Q The different grounds or subjects of pleas in abatement will be found enumerated Com. Dig., Abatement (E.) (H. 56). (m) 1 Chitty, 435; Com. Dig., Abatement, 0. joinder of parties in actions ex con- tractu, unless the fact already ap- pears in the record. The reason is because it is unnecessary to plead a fact already appearing of record. Ante, p. 61. A good plea in abate- ment must aver that the person not joined is alive and within the juris- diction of the court. Palmer v. Field, 59 N. Y. S. R, 180; Goodhue v. Luce, 83 Me. 223. l ln New Hampshire no writ or declaration shall be abated, quashed or reversed for any error or mistake, where the person or case may be rightly understood by the court Adams v. Wiggin, 42 N. EL 553. 2 A suit may be abated on account of the infancy of the plaintiff. Schemerhorn v. Jenkins, 7 Johns. 873. The marriage of a feme sole pend- ing suit abates the action, and must be pleaded before a plea in bar. But if the marriage does not take place till after the plea in bar, it must be pleaded before the next continuance. Swan v. Wilkinson, 14 Mass. 295; Chirac v. Reinicker, 11 Wheat. 280; Wilson v. Hamilton, 4 S. & R. 238. That one claiming to be the guard- ian of the plaintiff is not authorized to maintain the action for the plaint- iff may be pleaded in abatement. Conkey v. Kingman, 24 Pick. 115. And see as to executors, Kane v. Paul, 14 Pet. 33; Childress v. Emory, 8 Wheat 642. That the plaintiff is a fictitious person may be taken advantage of by abatement. Doe v. Penfield, 19 Johns. 308. It is sometimes said that the fact that there is no such person can be taken advantage of only by plea in abatement. See 1 Chitt PI. (Perkins* 14th Am. ed.) 449, note 2. But this is erroneous. See Boston Type Foun- dry v. Spooner, 5 Vt 93. Where it is discovered that the plaintiff is a fictitious person or a supposed corporation which could have no existence, or a thing that could not have or owe rights, the case must be dismissed. Mexico Mill Co. v. Yellow Jacket Co., 4 Nev. 40, 97 Am. Dec. 510; Detroit Schuetzen Bund v. Agitations Verein, 44 Mich. 313; Alvarez v. Brennan, 7 Cal. 503, 68 Am. Dec. 274; The Steamboat Burns, 9 Wall. 237. Where the en- tity may sue, but has used an im- proper name, or its own name when it should sue by trustees, etc., ad- vantage must be taken by plea in abatement or nul tiel corporation in the lower courts. Ada St M. E. Church v. Garnsey, 66 111. 132. CAUSES AND FOKMS OF ACTION. [ 100. alien enemy. 1 "With respect to these pleas to the person, it is to be observed that they do not fall strictly within the defini- tion of pleas in abatement, as above given; for they do not pray " that the writ be quashed," but pray judgment " if the plaintiff ought to be answered." However, as such pleas offer an objection of form rather than substance, and do not deny the right of action itself, they are considered as in the nature of pleas in abatement, and classed among them, (n) 2 A plea in abatement to the count or declaration is such as is founded on some objection applying immediately to the dec- laration, and only by consequence affecting the writ. The only frequent case in which this kind of plea has occurred is where the objection is that of a variance in the declaration from the writ, which was always a fatal fault, (o) 3 Even in this case, however, the plea is now out of use, in consequence of a change of practice relative to the original writ that will be presently explained. 4 A plea in abatement to the writ is such as is founded on some objection that applies to the writ itself; for example, that in an action on a joint contract it does not name as defendants all the joint contractors, but omits one or more of them. Pleas of this latter kind have been very anciently divided into such as relate to the form of the writ and such as relate to the ac- tion of the writ; and those relating to Us form have been again subdivided into such as are founded on objections apparent on (.n) See Appendix, note (23). (o) There were, however, other instances in which this kind of plea was used. See Co. Litt. 803 b, where it is said that " any imperfection in the count doth abate the writ." See also Com. Dig., Abatement, G. 7, G. 8. 1 It is a general rule that a plea in v. Brock,. 11 Mass. 119. See Suspen- abatement must give the plaintiff a sion of Action, and note, ante. better writ. American Exp. Co. v. 2 Pleas in abatement arising from Haggard, 37 111. 465. But this does privilege of person ought to be not apply to such cases as those of classed under pleas to the jurisdio outlawry, attainder, alien enemy, tion. 1 Chitty, PI. 478; United States etc., where the right of action is sus- v. Benner, Bald. 240; Drake v. Drake, pended on account of the disability 83 111. 526. But such plea will not of plaintiff to sue, and where he can- be adjudged bad on demurrer be- not have a better writ. Boston Type cause it prays judgment on the writ. Foundry v. Spooner, 5 Vt. 93. The Drake v. Drake, supra. plea of alien enemy is a temporary 3 See Duvall v. Craig, 2 Wheat 45; disability only; and its effect is not Chirac v. Reinicker, 11 Wheat. 280; to defeat the action, but to suspend McKenna v. Fisk, 1 How. 241. it. A prayer of judgment on the 4 This plea is practically obsolete, writ is therefore bad. Hutchinson 1 Chitty, PL *466. 100.] PKOCEEDINGS IN AN ACTION. 185 the writ itself \ and such as are founded on matter extrane- ous, (j)} l The following are examples of pleas in abatement: PLEA IN ABATEMENT OF THE WRIT. To the person of the plaintiff. In the King's Bench. Term, in the of King George the Fourth. (In debt.) year of the reign 0. D. ats A. B. And the said 0. D., by , his attorney, comes and defends the wrong and injury, when, etc., and says that the said A. B. ought not to be answered to his writ and declara- tion aforesaid, because, he says, that the said A. B. is an alien born, to wit, at Calais, in the kingdom of France, in parts be- yond the seas under the allegiance of the king of France, an enemy of our lord the now king, born of father and mother (p) 1 Chitty, 435; Com. Dig., Abatement, C. These divisions of pleas in abatement to the writ seem to be more subtle than useful, aud do not, in modern practice, often come under consideration. 1 Pleas to the form of the writ are mostly for matter dehors, such as misnomer of plaintiff or defendant. See Reid v. Lord, 4 Johns. 118. Pleas of misnomer were abolished in Eng- land by 3 and 4 William IV., chapter 42, section 11. Misnomer of plaint- iff, even in case of a corporation, can be taken advantage of by plea in abatement only. Mayor of Stafford v. Bolton, 1 Bos. & Pul. 40; Medway Manufactory v. Adams, 10 Mass. 360. A plea in abatement was sustained to a declaration in which a name was stated as " Clendenard," when the right name was "Clendenin." Gates v. Clendenard, 87 Ala. 734. The word junior not being a part of the name may be added or omitted. See Headley v. Shaw, 39 III 354; Kincaid v. Howe, 10 Mass. 203; State v. Grant, 21 Me. 171; Jameson v. Isaacs, 12 Vt. 611. The middle name was by common law no part of a man's name, and consequently the omission of the middle name or initial was imma- terial. See Franklin v. Talmadge, 5 Johns. 84; Schofield v. Jennings, 68 Ind. 232; Re Snook, 2 Hilt. 568; State v. Martin, 10 Mo. 301; Hart v. Lind- sey, 17 N. H. 235, 43 Am. Dec. 597; Bletch v. Johnson, 40 III 116. But in Massachusetts the middle name or initial must be regarded. See Parker v. Parker, 146 Mass. 320. See also King v. Hutchins, 28 N. H. 580. The omission of the Christian name or merely giving the initials is abat- able. Peden v. King, 30 Ind. 181; Morris v. Graves, 4 Strobh. L. 32. A name is the title used for identifica- tion, and the intent of its require- ment is certainty of such identifica- tion. Laflin & Rand Powder Co. v. Steytler, 146 Pa. St. 434, 14 L. R. A. 690. The doctrine of idem sonans ap- plies to words the pronunciation of which, in conversation, appears to be identical The courts are especially liberal in the case of foreign names. See Barnes v. People, 18 111. 52; Mil- lett v. Blake, 81 Me. 531; Belton v. Fisher, 44 111. 32; Chiniquy v. Bishop of Chicago, 41 id. 148; Stevens v. Stebbins, 4 id. 25. ISO CAUSES AND FORMS OF ACTION. [ 101. adhering to the said enemy; and that the said A. B. entered this kingdom without the safe conduct of our said lord the king. And this the said 0. D. is ready to verify. Wherefore he prays judgment if the said A. B. ought to be answered to his writ and declaration aforesaid, (^) etc. PLEA IN ABATEMENT OF THE WEIT. To the writ (for non-joinder). In the King's Bench. (In assumpsit.} Term, in the year of the reign of King George the Fourth. C. D. ate A. B. And the said 0. D., by , his attorney, comes and defends the wrong and injury when, etc., and prays judgment of the said writ and declaration, because he says that the said several supposed promises and undertakings in the said dec- laration mentioned (if any such were made) were made jointly with one G. H., who is still living, to wit, at , and not by the said C. D. alone. And this the said C. D. is ready to verify. "Wherefore, inasmuch as the said G. H. is not named in the said writ together with the said C. D., he, the said C. D., prays judg- ment of the said writ and declaration, and that the same may be quashed, (r) The effect of all pleas in abatement, if successful, is that the particular action is defeated. But on the other hand, the right of suit itself is not gone; and the plaintiff, on obtaining a bet- ter form of writ, may maintain a new action, if the objection were founded on matter of abatement; or, if the objection were to the disability of the person, he may bring a new action when, that disability is removed. 101. Oyer of the writ. Such is, in its principle, the doc- trine of pleas in abatement; but the actual power of using these pleas has been much abridged, and the whole law of original writs consequently rendered of less prominent im- portance than formerly, by a rule of practice laid down in modern times. "With respect to such pleas in abatement as were founded on facts that could only fie ascertained by ex- amination of the writ itself ^ as, for example, variance between the writ and declaration, or erasure of the writ, it was al- ways held a necessary matter of form, preparatory to plead- ing them, to demand oyer of the writ, (s) that is, to demand (3) Lil. Ent. 1; Mod. Ent. 9; 1 Went. 42, 29. (r) 2 Chitty, 415 [ante, p. 61]. (*) Com. Dig., Pleader, p. 2; 1 Saund. 318, n. 3; Salk. 658. I 101.] PKOCEEDINGS IN AN ACTION. 187 to hear it read; which, in the days of oral pleading, was com- plied with by reading it aloud in open court, and, after the establishment of written pleadings, by delivering a copy ol the instrument. The court of common pleas, however, in the II and 12 Geo. II., and the king's bench, in the 19 Geo. III., (t) thought fit to establish it as a rule, that thenceforth oyer should not be granted of the original writ ; that the indirect effect of this has consequently been to abolish in practice all pleas in abatement founded on objections of the kind here stated. But there are pleas in abatement which do not require any examination of the writ itself. For example, if in the dec- laration one only of two joint contractors is named defendant, that is sufficient to show that the same non-joinder exists in the writ; for, as a variance between the writ and declaration is a fault, (u) the defendant is entitled to assume that they agree with each other; and he may consequently, without production of the writ, plead this misjoinder as certainly ex- isting in the latter instrument. So the plea that the writ was sued out pending another action, or pleas to the person of the plaintiff or defendant, require no examination of the writ itself, and there are many others to which the same remark applies. In all such cases no oyer is necessary; and therefore pleas of this latter description may be, and are in fact, still pleaded, notwithstanding the rule of practice which denies oyer of the writ. In this explanation of pleas in abatement, the case of a pro- ceeding by original writ has been hitherto exclusively sup- posed ; the law relating to these pleas having been devised and originally applied at a period when proceedings ~by bill were either unknown or not in common use, and therefore having a more immediate and strict reference to proceedings by orig- inal. It is, however, to be understood that there are pleas in abatement of the hill also, by analogy to those in abatement of the writ. In form they differ from pleas in abatement of the writ only in praying judgment if the plaintiff ought to be answered "to his bill" or "that the bill be quashed," in- stead of making the like prayer with respect to " writ and dec- laration" (x) (t) Doug. 227; 1 Saund. 318, n. 3. (u) Vide supra, p. 183. (x) See Appendix, note (24). 188 CAUSES AND FORMS OF ACTION. [ 102. 102. Pleas in bar. A plea in ~bar of the action may be defined as one which shows some ground for barring or de- feating the action, and makes the prayer to that effect, (y) A plea in bar is therefore distinguished from all pleas of the dilatory class, as impugning the right of action altogether, instead of merely tending to divert the proceedings to another juris- diction, or suspend them, or abate the particular writ. 1 It is, in short, a substantial and conclusive answer to the action, (z) It follows from this property that in general it must either deny all or some substantial part of the averments of fact in the declaration; or, admitting them to be true, allege new facts which obviate or repel their legal effect. 2 In the first case the defendant is said, in the language of pleading, to traverse (a) the matter of the declaration ; in the latter, to con- fess and avoid it. Pleas in bar are consequently divided into pleas "by way of traverse, and pleas ~by way of confession and avoidance? Of pleas in bar of each of these descriptions the following are examples: PLFA IN BAR. By way of Traverse. In covenant, on indenture of lease For not repairing. In the King's Bench. Term, in the year of the reign of King George the Fourth. 0. D. ats A. B. And the said 0. D., by , his attorney, comes and defends the wrong and injury when, etc., and says that the (y) See Appendix, note (25). (z) The different grounds or subjects of pleas to bar, to each different form of action, will be found enumerated to Com. Dig., Pleader, etc. (2 A.) (8 0. 19). (a) See Appendix, note (26). 1 Pleas in bar are not to receive a only the proper judgment prayed narrow and merely technical con- for by the party; but on a plea in struction, and are to be determined, bar the party may have a right judg- not by a disjoining of their mem- ment upon a wrong prayer. The bers, or by laying stress on what King v. Shakspeare, 10 East, 87; may be immaterial, but according to Howies v. Lusty, 4 Bing. 428. their entire subject-matter. Withers 2 See Bouvier's Law Diet, tit Plead- v. Greene, 9 How. 213. ing. In abatement the court will give 3 Every answer, under the code, 103.] PBOCEEDINGS IN AN ACTION. 189 said A. B. ought not to have or maintain his aforesaid action against him, the said C. D., because he says that the windows of the said messuage or tenement were not in any part thereof ruinous, in decay or out of repair, in manner and form as the said A. B. hath above complained against him, the said C. D. And of this he puts himself upon the country. (5) PLEA IN BAR. By way of Confession and Avoidance. In a like action. In the King's Bench. Term, in the year of the reign of King George the fourth. C. D. } ats > A.B. ) And the said C. D., by , his attorney, comes and defends the wrong and injury, when, etc., and says that the said A. B. ought not to have or maintain his aforesaid action against him, the said C. D., because he says that after the said breach of covenant, and before the commencement of this suit, to wit, on the day of , in the year of our Lord , at aforesaid, in the county aforesaid, the said A. B., by his certain deed of release, sealed with his seal, and now shown to the court here (the date whereof is the day and year aforesaid), did remise, release and forever quitclaim to the said C. D., his heirs, executors and administrators, all dam- ages, cause and causes of action, breaches of covenant, debts and demands whatsoever, which then had accrued to the said A. B., or which the said A. B. then had against the said C. D. ; as by the said deed of release, reference being thereto had, will fully appear. And this the said C. D. is ready to verify. Wherefore he prays judgment if the said A. B. ought to have or maintain his aforesaid action against him. 103. Demurrer. A demurrer (from the Latin demorari, or French demorrer, to wait, or stay) imports, according to its etymology, that the objecting party will not proceed with the pleading, because no sufficient statement has been made on the other side; but will wait the judgment of the court whether he is bound to answer. 1 (6) See the declaration, supra, p. 162. should be as full and complete as a 1 Haiton v. Jeffreys, 10 Mod. 280, special plea was required to be at Ames' Cases, 6; Leaves v. Bernard, 5 common law. Ayrault v. Chamber- Mod. 132; Davies v. Gibson, 2 Ark. 117; lain, 33 Barb. 229. Tyler v. Hand, 7 How. 573. This 13 190 CAUSES AND FOEMS OF ACTION. [ 103. The form of a demurrer to a declaration will appear by the following examples: GENERAL DEMURRER. To the Declaration. For matter of substance. (In debt.) In the King's Bench. Term, in the year of the reign of King George the Fourth. C. D. ) ats(5) V A. B. ) And the said C. D., by , his attorney, comes and defends the wrong and injury, when, etc., and says that the said declaration and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law for the said A. B. to have or maintain his aforesaid action against him, the said 0. D.; and that he, the said C. D., is not bound by the law of the land to answer the same. And this he is ready to verify. Wherefore, for want of a sufficient declaration in this beh'alf, the said C. D. prays judgment, and that the said A. B. may be barred from having or maintaining his aforesaid action against him, etc. SPECIAL DEMURRER. To the Declaration. For matter of form. (In debt.) In the King's Bench. Term, in the year of the reign of King George the Fourth. C.D. ats A.B. And the said C. D., by , his attorney, comes and de- fends the wrong and injury, when, etc., and says that the said (6) I.e., at suit of. statement in the text is generally Law Diet; Bouvier's Law Diet., tit. cited by courts, text- writers and com- Demurrer. pilers of dictionaries. See Anderson's By proceeding with the trial on 104:.] PROCEEDINGS IN AN ACTION. 191 declaration and the matters therein contained, in manner and form as the same are above stated and set forth, are not suffi- cient in law for the said A. B. to have or maintain his afore- said action against the said 0. D., and that he, the said C. D., is not bound Toy the law of the land to answer the same. And this he is ready to verify. Wherefore, for want of a sufficient declaration in this behalf, the said C. D. prays judgment, and that the said A. B. may be barred from having or maintaining his aforesaid action against him, etc. And the said C. D., [ac- cording to the form of the statute in such case made and pro- vided], states and shows to the court here the following [special] causes of demurrer to the said declaration: that is to say, that no day or time is alleged in the said declaration at which the said causes of action or any of them are supposed to have ac- crued. [That the declaration is double in this, that is to say.] And also that the said declaration is in other respects uncertain, informal and insufficient. 104. Arrival at issue. 1. By tendering issue of fact. The nature of a demurrer to the declaration and of plea, and the different kinds of plea, being now explained, we will con- tinue our examination of the process of pleading, and will first suppose that the defendant takes the course of pleading to the declaration, in bar, by way of traverse. In this case it is evi- dent that a question is at once raised between the parties; and it is a question of fact, viz., whether the facts in the declara- tion, which the traverse denies, be true. A question being thus raised, or, in other words, the parties having arrived at a spe- cific point or matter, affirmed on the one side and denied on the other, the defendant (as the party traversing) is, conform- ably to the ancient practice, (c) in general obliged to offer or refer this question to some mode of trial; and does this by an- te) Vide supra, p. 149. the merits without demanding a nil- In Iowa the code permits a de- ing on his demurrer, the defendant murrer only when the petition, " by waives formal objections. Danielson a fair and natural construction, does v. Gude, 11 Colo. 87. Facts not ap- not show a substantial cause of ac- pearing on the face of the bill cannot tion." McFaul v. Ramsey, 20 How. be considered on demurrer. Stewart 523; Birdseye v. Smith, 32 Barb. 219. v. Masterson, 131 U. S. 151. If the want of jurisdiction be ap- At common law, if the declaration, parent on the face of the declara- by fair construction of the language, tion, the defect may be taken ad- states a cause of action, it is good, vantage of by demurrer or motion. Cook v. Scott, 1 Gilm. 333; People v. Susquehanna & W. V. R. Co. v. Lane, 36 III App. 649. Blatchford, 78 U. S. 172. 192 CAUSES AND FOKMS OF ACTION. [ 105. nexing to the traverse an appropriate formula, proposing either a trial by the country (i. e., by a jury), as in the example, pages 188-89, or such other method of decision as by law belongs to the particular point. If this be accepted by his adversary, the parties are then (conformably to the language of the ancient pleading) (<#) said to be at issue; and the question itself is called the issue. Consequently a party who thus traverses, annexing such formula, is said to tender issue; and the issue so tendered is called an issue in fact. Thus, in the example at pages 188-89, the defendant, by his plea, tenders an issue in fact on the want of repair. 1 2. By tendering issue of law. If it be next supposed that, instead of traversing, the defendant chooses to demur, it is obvious that a question is in this case also raised between the parties; and it is a question of law, viz., whether the declara- tion be sufficient in point of law to maintain the action. The defendant, therefore, as the party demurring, by analogy to the mode observed with respect to an issue in fact, uses a formula, referring that question to the proper mode of decision, viz., the judgment of the court, as in the example, page 190 ; and as upon a traverse, he tenders an issue in fact, so he is said in this case to tender an issue in law. Thus, in the same exam- ple, the defendant, by his demurrer, tenders an issue in law on the sufficiency of the declaration. And here it is to be ob- served that while upon a traverse a party is in general obliged to tender issue, upon a demurrer he always necessarily does so; for the only known form of a demurrer contains an appeal to the judgment of the court; but, on the other hand, as will ap- pear in a subsequent part of the work, a party may sometimes traverse or deny, without offering any mode of trial. 105. Accepting the issue. The issue, whether in fact or law, being thus tendered, it is necessary, before the issue is complete, that it be accepted. And this subject shall be con- sidered first, as it respects the issue in law. (d) Vide supra, p. 147. 1 All rights of action and all special PL, ch. 1, sec. 4; 3 Cooley's Black, defenses result from matter of fact (4th ed.) 313-15. and matter of law combined. Gould's 106.] PKOCEEDINGS IN AN ACTION. 193 106. An issue. The tender of the issue in law is neces- sarily accepted by the plaintiff; for he has no ground of ob- jecting either to the question itself, or the proposed mode of decision. 1 A question on the legal sufficiency of the declara- tion he cannot, of course, without abandoning his own form of proceeding, decline ; and with respect to the mode of decis- ion, viz., the judgment of the court, there is, in matters of law, no alternative method. He is therefore obliged to accept, or join in the issue at law ; and does so by a set form of words called joinder in demurrer, of which the following is an example: JOINDER IN DEMURRER. In the King's Bench. Term, in the year of the reign of King George the Fourth. A.B. * v. C. D. And the said A. B. says that the said declaration and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law for him, the said A. B., to have and maintain his aforesaid action against him, the said C. P. And the said A. B. is ready to verify and prove the same as the court shall direct and award. Where- fore, inasmuch as the said 0. D. hath not answered the said declaration, nor hitherto in any manner denied the same, the said A. B. prays judgment, and his debt aforesaid, together with his damages by him sustained, by reason of the deten- tion thereof, to be adjudged to him. But the tender of the issue in fact is not necessarily accepted by the plaintiff ; for, first, he may consider the traverse itself as insufficient in law. It will be recollected that by the traverse the defendant may deny either the whole or &part of the declaration; and, in the latter case, the traverse may, in the opinion of the plaintiff, be so framed as to involve a part immaterial or insufficient to decide the action? Again, he may i Brown v. Key & Jones, 10 G. & J. 2 Hopkins v. Medley, 97 III 403. 334. 194: CAUSES AND FORMS OF ACTION. [ 106. consider the traverse as defective in point of form, and object to its sufficiency in law on that ground. So, in his opinion, the mode of trial proposed may, in point of law, be inap- plicable to the particular kind of issue. On such grounds, therefore, he has an option to demur to the traverse as in- sufficient in law. The effect of this demurrer, however, would only be to postpone the acceptance of issue by a single stage; for by the demurrer he tenders an issue in law; and his ad- versary, according to the principle already laid down, (e) would be obliged to join in demurrer, that is, to accept the issue in law in the next pleading. On the other hand, supposing a demurrer not to be adopted, the alternative course will be to accept the tendered issue of fact, and also the mode of trial which the traverse proposes; and this is done (in case of trial by jury) by a set form of words, called a, joinder in issue or a similiter; in the following form : l JOINDER IN ISSUE, or, 8IMILITER. Upon the traverse, in p. 188. In the King's Bench. Term, in the year of the reign of King George the Fourth. A. B. ) v - r C. D. } And the said A. B., as to the plea of the said C. D. above pleaded, and whereof he has put himself upon the country, doth the like. (e) Supra, p. 149. * A trial without an issue is a nul- Gillispie v. Smith, 29 HI. 476. Such lity. Hubler v. Pullen, 9 Ind. 273, an objection after verdict is frivolous. 68 Am. Dec. 620 ; Israel v. Reynolds, Id. And though defective in form 11 III 218; Reynolds v. Stockton, 140 will be held good. Everett v. De- U. & 254 ; Munday v. Vail, 34 N. J. L. Groff, 1 Cow. 213 ; Sayer v. Pocock, 418. See these cases, Hughes, Tech. Cowp. 407; Shaw v. Redmond, 11 S. Law. But the formal joinder in is- & R. 277 ; Whiting v. Cochran, ft sue may be waived and is cured by Mass. 533 ; Babcock v. Huntington, verdict Hazen v. Lundy, 83 111. 241 ; 2 Day, 392. 107.] PEOCEEDINGS IN AN ACTION. 195 The issue in law or fact being thus tendered, and accepted on the other side, the parties are at issue; and the pleading is at an end [so far as that particular point is concerned]. Hitherto it has been supposed that the defendant either pleads in bar, 1>y way of traverse, or demurs to the declaration ; but we will now suppose him to plead either one of the kinds of dilatory plea, or a. plea in bar, Tnj way of confession and avoid- ance. In either case the plaintiff has the option of demurring to the plea, as being, in substance or form, an insufficient answer, in point of law, to the declaration, or of pleading to it by way of traverse, or by way of confession and avoid- ance * of its allegations. Such pleading (f) on the part of the plaintiff is called the replication? If the replication be by way of traverse, it is in general nec- essary (as in the case of the plea) that it should tender issue. So, if the plaintiff demur, an issue in law is necessarily ten- dered ; and in either case the result is a joinder in issue, upon the same principles as above explained with respect to the plea. But if the replication be in confession and avoidance, the defendant may then, in his turn, either demur, or, by a pleading, traverse, or confess and avoid, its allegations. If such pleading take place it is called the rejoinder. 107. Course and extent of pleadiiig. In the same man- ner, and subject to the same law of proceeding, viz., that of demurring, or traversing, or pleading in confession and avoid- ance, is conducted all the subsequent altercation to which the nature of the case may lead ; and the order and denominations of the alternate allegations of fact or pleadings throughout the whole series are as follows : Declaration, plea, replication, re- joinder, surrejoinder, rebutter and surrebutter. After the surre- butter the pleadings have no distinctive names; for beyond that stage they are very seldom found to extend, (g) To whatever length of series the pleadings may happen to lead, it is obvious that, by adherence to the plan here de- (/) See Appendix, note (27). (3) See Appendix, note (88). 1 Phillips v. Harris, 3 J. J. Marsh. Going to trial without disposing of 122. a demurrer is a waiver. Williams 2 Replication waives demurrer, v. Baker, 67 I1L 238. Warner's Ex'rs v. Bledsoe, 4 Dana, 73. 196 CAUSES AND FORMS OF ACTION 1 . [ 107. scribed, one of the parties must, at some period of the pro- cess, more or less remote, be brought either to demur or to traverse; for, as no case can involve an inexhaustible store of new relevant matter, there must be somewhere a limit to pleading in the way of confession and avoidance. Examples have already been given of the demurrer and traverse occur- ring at the second stage of the pleading, viz., in the plea: in those which here follow, they are not produced till after a longer series. Let the plaintiff be supposed to declare in assumpsit, as in page 186, and the defendant to plead in abatement (for exam- ple, the non-joinder of a joint contractor, as in page 186-). The plaintiff may then be supposed to reply thus : EEPLICATION. By way of Traverse. Upon the plea, p, 186. In the King's Bench. Term, in the -year of the reign of King George the Fourth. A. B. ) v. V C. D. ) And the said A. B. says that his said writ and declaration, by reason of anything in the said plea alleged, ought not to be quashed, because he says that the said promises and under- takings were made by the said C. D. alone, in manner and form as the said A. B. hath above complained ; and not by the said C. D. jointly with the said G. L, in manner and form as the said C. D. hath above, in his said plea, alleged. And this the said A. B. prays may be inquired of by the country. Again, let the plaintiff be supposed to declare in covenant on an indenture of lease (as in page 158), and the defendant to plead in bar, by way of confession and avoidance (for example, a release, as in page 189); the plaintiff may then be supposed to reply thus: 107.] PROCEEDINGS IN AN ACTION. 197 REPLICATION. By way of Confession and Avoidance. Upon the plea, p. 189. In the King's Bench. Term, in the year of the reign of King George the Fourth. A. B. v. C. D. , And the said A. B. says that by reason of anything in the said plea alleged, he ought not to be barred from having and maintaining his aforesaid action against the said C. D., be- cause he says that he, the said A. B., at the time of the mak- ing of the said supposed deed of release, was unlawfully imprisoned and detained in prison by the said C. D. until, by force and duress of that imprisonment, he, the said A. B., made the said supposed deed of release as in the said plea mentioned. And this the said A. B. is ready to verify. "Wherefore he prays judgment and his damages by him sus- tained by reason of the said breach of covenant to be ad- judged to him. (A) To this the defendant may be supposed to rejoin as follows : EEJOINDEK. By way of Traverse. Upon the above replication, In the King's Bench. Term, in the -year of the reign of King George the Fourth, C. D.) ats > A. B. ) And the said C. D. saith that by reason of "anything in the said replication alleged, the said A. B. ought not to have or maintain his aforesaid action against him, the said C. D., be- cause, he says, that the said A. B. freely and voluntarily made the said deed of release, and not by force and duress ot imprison- ment, in manner and form as by the said replication alleged. And of this the said C. D. puts himself upon the country, (i) In these examples the parties ultimately arrive at a trav- erse; but it may happen that in any part of the series a de- murrer instead of a traverse may take place. Thus, if the (h) See a similar replication, 2 Richardson's K. B , p. 60. (i) See a similar rejoinder, 2 Richardson's K. B., p. 60. 198 -CAUSES AND FORMS OF ACTION. [ 108. defendant in the last example choose to dispute the sufficiency in point of law of the substance of the matter in the replica- tion, he would, instead of a rejoinder, demur to the replication, thus: DEMUBREB. To the replication, in p. 197. In the King's Bench, Term, in the year of the reign C. D. J of King George the Fourth. ats v A. B. j And the said C. D. says that the said replication of the said A. B. to the said plea of him, the said C. D., and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law for the said A. B. to have or maintain his aforesaid action against the said C. D. ; and that he, the said C. D., is not bound by the law of the land to answer the same. And this the saicl 0. D. is ready to verif}\ Wherefore, for want of a sufficient replication in this behalf, the said C. D. prays judgment if the said A. B. ought to have or maintain his aforesaid action against him. As the parties will at length arrive at demurrer or traverse, so, whenever a traverse is at length produced, it comprises, in general, a tender of issue (as in the above examples) ; and a demurrer necessarily involves a tender of issue, the conse- quence of which is, in either case, a joinder in issue, exactly upon the same principle as above explained, with respect to the plea; so that the parties arrive at issue, after a longer series of pleading, precisely in the same manner as when the process terminates at the earliest possible stage. Such is, in a general view, the nature of the process of pleading, and the manner of coming to issue. (&) 108. Pleas puis darreign continuance. The pleading has been hitherto supposed to take its direct and simple course. There are, however, some pleas and incidents of occasional occurrence, by which its progress is sometimes broken or varied ; and of these it will now be proper to give some account. The pleas here referred to are called pleas puis darreign continuance. (k) See Appendix, note (29). 108.] PEOCEEDINGS IN AN ACTION. 199 It will be remembered (Z) that under the ancient law there were continuances, i. e., adjournments of the proceedings for certain purposes, from one day or one term to another ; and that in such cases there was an entry made on the record ex- pressing the ground of the adjournment, and appointing the parties to re-appear at the given day. In the intervals be- tween such continuances and the day appointed, the parties were of course out of court, and consequently not in a situa- tion to plead. But it sometimes happened that after a plea had been pleaded, and while the parties were out of court, in consequence of such a continuance, a new matter of defense arose, which did not exist, and which the defendant had con- sequently no opportunity to plead, "before the last continuance. This new defense he was therefore entitled at the day given for his re-appearance to plead as a matter that had happened after the last continuance (puis darreign continuance post ultimam continuationem). In the same cases as occa- sioned a continuance in the ancient law, but in no other, a continuance still takes place. At the time, indeed, when the pleadings are filed and delivered, no record exists, and there is therefore no entry at that time made on record of the award of a continuance ; but the parties are from the day when, by the ancient practice, a continuance would have been entered, supposed to be out of court, and the pleading is sus- pended till the day arrives to which, by the ancient practice, the continuance would extend. And that day the defendant is entitled, if any new matter of defense has arisen in the in- terval, to plead it according to the ancient plan, puis darreign continuance. 1 The following is an example of the form : CD Supra, p. 148. 1 Fitzpatrick v. Fitzpatrick, 6 R L the whole amount of his bond to sat- 64 ; Rowell v. Hayden, 40 Me. 582 ; isfy judgments in other suits. Leg- Hendrickson v. Hutchinson, 29 N. gett v. Humphreys, 62 U. S. 66. See J. L. 180; Longworth v. Flagg, 10 Mount v. Scholes, 120 III 894 The Ohio St 800 ; Mount v. Scholes, 120 purpose of the plea is to protect the III 394; Yeaton v. Lynn, 30 U. S. defendant from liability for double 224 ; Thompson v. United States, 103 payment Smith v. Carroll, 17 R L id. 480; Feagin v. Pearson, 42 Ala. 125, 12 L. R A. 301. 332. One sued on a bond may plead A release since the last conlinu- puis darreign continuance that since ance may be shown by this plea the institution of the suit he has paid (Wade v. Emerson, 17 Mo. 267 ; Wia- 200 CAUSES AND FORMS OF ACTION. f PLEA PUIS DARKEIGN CONTINUANCE. In the King's Bench. next after in term, in the year of the reign of King George the Fourth. 0. D. ) ats v A. B. ) And now at this day, that is to say, on , next after in this same term, until which day the plea aforesaid was last continued, come as well the said A. B. as the said C. D., by their respective attorneys aforesaid. And the said C. D. says that the said A. B. ought not farther to have or maintain His aforesaid action against him ; because, he says, that after the last continuance of this cause, that is to say", , next after , in this same term, from which day this cause was last continued, and before this day, to wit, on the day of , in the year of our Lord , at aforesaid, in the county aforesaid, the said A. B., by his certain deed of release, sealed with his seal [the release may be here stated, as supra^ p. 147]. And this the said C. D. is ready to verify. Where- fore he prays judgment if the said A. B. ought farther to have or maintain his aforesaid action against him, etc. (m) A plea puis darreign continuance is always pleaded by way of substitution for the former plea, on which no proceeding is afterward had. 1 It may be either in bar or abatement, (n) and is followed, like other pleas, by a replication and other pleadings till issue is attained upon it. 2 109, Demand of view. Of the incidents of occasional oc- currence, by which the progress of the pleading is sometimes varied, some of the principal shall here be noticed ; and first, (m) 2 Chitty, 676; 1 Arch. 323. (n) Com. Dig., Abatement, I, 24. heart v. Legro, 83 N. H. 177), and fenses in the cause, and the parties payment Herod v. Snyder, 61 Ind. proceed to settle the pleadings de 453 ; Bowne v. Joy, 9 Johns. 221. novo just as though no plea or pleas Extreme certainty and strictness had theretofore been filed. Mount v. are required in framing these pleas, Scholes, 120 111. 394 See Adams v. and the plea must specify clearly the Filer, 7 Wia 306, 73 Am. Dec. 410 ; date of the last continuance. Henry Lincoln v. Thrall, 26 Vt 804 ; Wallace v. Porter, 29 Ala. 619; Vicary v. v. McConnell, 38 U. S. 136; Angus v. Moore, 2 Watts, 451, 27 Am. Dec. Trust & S. B., 170 111. 298. 228 ; Augusta v. Moulton, 75 Me. 551. 2 See Cummings v. Smith, 50 Me. 1 A plea puis darreign continuance 568, 79 Am. Dec. 629. supersedes all other pleas and de- 109.] PROCEEDINGS IN AN ACTION. 201 1. The demand of mew. In most real and mixed actions, in order to ascertain the identity of the land claimed with that in the tenant's posses- sion, the tenant is allowed, after the demandant has counted, to demand a view) l of the land in question ; or, if the subject of claim be a rent, a right of advowson, a right of common, or the like, a view of the land out of which it issues, (o) This, however, is confined to real or mixed actions. For in actions personal the view does not lie. (p) In the action of dower, unde nihil habet, it has been much questioned whether the view be demandable or not ; (q) and there are other real and mixed actions in which it is not allowed. The view being granted, the course of proceeding is to issue a writ commanding the sheriff to cause the defendant to have view of the land. It being the interest of the demandant to expedite the proceedings, the duty of suing out the writ lies upon him, and not upon the tenant ; (r) and when, in obe- dience to its exigency, the sheriff causes view to be made, the demandant is to show to the tenant, in all ways possible, the thing in demand, with its metes and bounds, (s) On the return of the writ into the court, the demandant must count de novo; that is, declare again ; (t) and the plead- ing proceeds to issue, (u) Co) Vin. Ab., View; Com., Dig., View; Booth, 87; 2 Saund. 45, b; 1 Reeves, 435. (p) 1 Reeves, 435. (9) The better opinion seem to be that it is not demandable. 2 Saund. 44, n. 4, (r) Booth, 40. () 1 Reeves, 438. (f) Com. Dig., Pleader, 2 Y. 8; Booth, ubi supra. () Both this proceeding of demanding a view and the voucher to warranty, after- wards mentioned, are, in the present rarity of real actions, unknown in practice. They seem, however, to deserve notice as illustrating the principles of pleading. 1 The reason for granting view is, Boardman v. Westchester Fire Ins. in ordinary cases, to enable the jury Co., 54 Wis. 364 ; Stockwell v. C. C. to apply the evidence. Washburn v. & D. R Co., 43 Iowa, 470 ; Bedell v. M. & L. W. Ry., 59 Wis. 364; Heady Berkey, 76 Mich. 435; Fraedrich v. v. Vevay Turnpike Co., 53 Ind. 117 ; Flieth, 64 Wis. 184. In eminent do- Wright v. Carpenter, 49 CaL 609 ; main cases. Parks v. Boston, 15 Pick. Close v. Samm, 27 Iowa, 413. Cf. 209 ; Galena & S. W. Ry. v. Haslam, Evansville Ry. v. Cochran, 10 Ind. 73 I1L 494. See, also, Close v. Samm, 560. It is allowed in almost any civil 27 Iowa, 507, 92 Am. Dec. 342, note, action when the view would aid The practice of viewing the prem- the jury, including equitable suits, ises in actions for overflowing lands 202 CAUSES AND FORMS OF ACTION. [ 110. 110. Toucher of warranty. 2. Another incident that deserves notice is voucher to war- ranty. 1 A warranty is a covenant real annexed to lands and tene- ments whereby a man is bound to defend such lands and tenements for another person; and, in case of eviction by title paramount, to give him lands of equal value, (a?) Toucher to warranty (vocatio ad warrantizandum) is the calling of such warrantor into court by the party warranted (when tenant in a real action brought for recovery of such lands) to defend the suit for him ; (y) and the time of such voucher is after the demandant has counted. It lies in most real and mixed ac- tions, but not in personal, (z) Where the voucher has been made and allowed by the court, the vouchee either voluntarily appears, or there issues a judicial writ (called a summons ad warrantizandum) com- manding the sheriff to summon him. "When he either voluntarily or in obedience to this writ ap- pears and offers to warrant the land to the tenant, it is called entering into the warranty; after which he is considered as tenant in the action in the place of the original tenant. The demandant then counts against him de novo, (a) the vouchee pleads to the new count, and the cause proceeds to issue. (x) Co. Litt. 365; Com. Dig., Garranty, A. (y) Co. Litt. 101 b; Com. Dig., Voucher, A. 1; Booth, 43; 2 Sauiid. 82, n. L (z) Com. Dig., Voucher, A. 1; 2 Saund. 32, n. 1. (a) 2 last 241a; 2 Saund. 32, n. 1; Booth, 46. or nuisances, or condemnation, is not (b) In America. In states where unusual, and is often regulated by the statute of Anne not in force, statutes. A valuable article is found view cannot be granted against con- in 26 Cent Law J. 436. The follow- sent Dowd v. Guthrie, 13 Brad. 658. ing is a synopsis : The rule as to discretion of the (a) At common Jaw. It was not court is quite generally followed, allowed in personal actions (Jacobs' Clayton v. Chi. & D. Ry., 67 Iowa, Diet, tit View) ; but by section 8 of 338 ; Richmond v. Atkinson, 58 Mich. 4 Ann, ch. 16, extended to waste, 413; Pick v. Rubicon Co., 27 Wis. trespass, ejectment, etc. In 1757 the 433 ; Leidheim v. Meyers, 95 Mich, courts held that it was within the 586. discretion of the court 1 Burrows, 1 3 Cooley's Black. (3d ed.) 300. No- 253. See Flint v. Hill, 11 East, 184 ; tice to defend given by parties sec- Stoner v. Menham, 2 Exch. R. 382. ondarily liable is analogous. City of Chicago v. Robbins, 2 Black, 418. HI.] PROCEEDINGS IN AN ACTION. 203 111, Oyer and profert. 3. A party in pleading may also have occasion to make do- mand of oyer. (5) 1 Where either party alleges any deed, he is in general obliged, by a rule of pleading that will be afterwards considered in its proper place, to make profert of such deed; that is, to pro- duce it in court simultaneously with the pleading in which it is alleged. This, in the days of oral pleading, was of course an actual production in court. Since then, it consists of a formal allegation that he shows the deed in court ; it being, in fact, retained in his own custody. An example of this allega- tion will be found in the declaration of debt on a bond, as above given, (c) Where profert is thus made by one of the parties, the other, before he pleads in answer, is entitled to demand oyer; that is, to hear it read. For it is to be observed, that the forms of pleading do not, in general, require that the whole of any in- strument which there is occasion to allege should be set forth. So much only is stated as is material to the purpose ; of which the example last cited will also serve for illustration. The other party, however, may reasonably desire to hear the whole ; and this either for the purpose of enabling him to as- certain the genuineness of the alleged deed, or of founding on some part of its contents, not set forth by the adverse pleader, some matter of answer. He is therefore allowed this privi- lege, of hearing the deed read verbatim. When the profert was actually made in open court, the de- mand of oyer, and the oyer given upon it, took place in the same manner ; and the course was, that on demand by one of (5) See the whole law and practice of oyer stated, 1 Sellon, 881: 1 Tidd, 618 (4th ed.); 1 Chitty, 414; 1 Arch. 164; 2 Arch. Pract 194, 198. (c) Supra, p. 157. 1 Oyer does not include or allow in- deed a part of the pleading and rec- spection of any document except the ord. Suydam v. Williamson, 20 How. one upon which suit is brought See 441 ; Rantin v. Robertson, 2 Strobh. Inspection, post; 2 Arch. Pr. 13, (S. C.) 366. A denial of oyer when p. 1019 ; Chetwind v. Marnell, 1 B. & it should be granted is ground for a P. 271. Profert is required and oyer writ of error. Chitty PL (16th Am. ed. ordered only of documents of which by Perkins), *446 ; Osborn v. Reed, 1 the party has custody. Judge of Black. 126; Judge of Probate v. Mer- Probate v. Merrill, 6 N. H. 256. rill, 6 N. H. 256. The effect of oyer is to make the 204: CAUSES AND FORMS OF ACTION. [ HI. the pleaders the deed was read aloud by the pleader on the other side, (d) By the present practice, the attorney for the party by whom it is demanded, before he answers the plead- ing in which the profert is made, sends a note to the attor- ney on the other side, containing a demand of over ; on which the latter is bound to carry to him the deed, and deliver to him a copy of it, if required, and this is considered as oyer, or an actual reading of the deed in court, (e) l Oyer is demandable in all actions : real, personal, and mixed. Oyer was formerly demandable not only of deeds, but of records 9 alleged in pleading, and (as has been before stated in this work) of the original writ also;(y) but by the pres- ent practice it is not now granted either of a record or an original writ ; (g) 3 and can be had only in the cases of deeds, probates and letters of administration, etc., of which profert is made on the other side : of private writings not under seal, oyer has never been demandable. 4 In all cases where profert is necessary and where it is also (d) Semb. Com. Dig., Pleader, p. I; Simpson v. Garside, Lutw. 1644. In Jevona v. Har- rldge, 1 Sid. 808, the reading of the deed is said to be the act / the court; but the true doctrine seems to be that laid down in Lutwyche. The rule seems to have been that write were read by the court, but deeds by the pleader. Vide Com. Dig., Pleader, p. L (e) Page v. Divine, 2 T. R. 40; 1 Tidd, 518 (4th ed.); 1 Sel. 264. (/) Vide supra, p. 186. (0) As to the Original Writ, vide supra, p. 187. As to records, vide King T. Amery, 1 T.R.150. 1 Setting out an instrument in full practice is for the defendant to ob- has been held sufficient oyer. Re- tain an order for the inspection of gents of U. of M. v. Detroit Young the document, which compels the Men's Ass'n, 12 Mich. 138. But the plaintiff to produce it. Whittaker opposite party has the right to insist v. Izod, 2 Taunt 114 ; Whitter v. upon the production of the original, Cazelet, 2 Term, 683 ; Blakely v. Por- and the refusal of the court to so ter, 1 Taunt. 386. See on inspection, order is error. Judge of Probate v. 2 Archbold's Practice (1840), 1023. Merrill, 6 N. H. 256 ; Smith v. Wood- The practice is analogous to the idea ward, 4 East, 685 ; Rand v. Rand, 4 of oyer, and discovery in equity, and N. II. 278. the code practice is analogous to this. 2 See Wood v. Griffith, Ld. Raym. Since the abolition of oyer in Eng- 8a land by C. L. P. Act, 1852, inspection 1 Ruggles v. Adams, 8 A. K. Marsh, is the remedy. Williams' Notes, 1 429 ; Gatton v. Dimmett, 27 III 400 ; Saund. R 9. Regents of U. of M. v. Detroit Ass'n, Profert is unnecessary when the 12 Mich. 138; 1 Chitty PL (16th Am. deed is stated only for inducement ed. Perkins), *446. Banfield v. Leigh, 8 T. R 571 ; Jev- 4 When the declaration counts upon ens v. Harridge, 1 Saund. 9o. an instrument not under seal, the ? 111.] PROCEEDINGS IN AN ACTION. 205 in fact made, the opposite party has a right if, he pleases, to demand oyer; but, if it be unnecessarily made, this does not entitle to oyer; and so if profert be omitted when it ought to have been made, the adversary cannot have oyer, but must demur. (K) When a deed is pleaded with profert, it is supposed to re- main in court during all the term in which it is pleaded, but no longer, unless the opposite party during that term plead in denial of the deed; in which case it is supposed to remain in court till the action is determined. Hence it is a rule that oyer cannot be demanded in a subsequent term to that in which profert is made, (i) A party having a right to demand oyer is yet not obliged, in all cases, to exercise that right ; (&) nor is he obliged, in all cases, after demanding it, to notice it in the pleading that he afterwards files or delivers. (/) Sometimes, however, he is obliged to do both, viz., where he has occasion to found his answer upon any matter contained in the deed of which pro- fert is made, and not set forth by his adversary. In these cases, the only admissible method of making such matter appear to the court is to demand oyer, and, from the copy given, s'et forth the whole deed verbatim in his pleading, (m) The following is an example of the manner in which the de- mand of oyer is thus entered and the deed set forth in the pleading: PLEA IN BAB. To debt on bond, (n) In the King's Bench. Term, in the year of the reign of King George the Fourth. C. D. ) ats v A. B j And the said C. D., by , his attorney, comes and defends the wrong and injury when, etc., and craves oyer of (A) Arch. 164. CO 1 Tidd, 520; 1 Chitty, 418. (fc) Arch. 164-5. (1) 1 Tidd, 522. (w) Cora. Dig., Pleader, 2 V. 4; Arlington v. Merricke, 2 Saund. 410, n. 2; Jevens v. Hap- ridge, 1 Saund. 9, b, n. 1; Stibbs v. Clough. 1 Str. 227; Fort. 354; Colton v. Goodridge, 2 Black. 1108. 1. 15; 2 Saund. 2, n. 2. 208 CAUSES AND FORMS OF ACTION. [ 112. The latter form would entitle the party to plead in abate- ment afterwards, but not to the jurisdiction; and therefore, if he wished to preserve the power of doing this also, he re- sorted to another kind of special imparlance, differing from the former only in this, that it contained a saving of "all ad- vantages and exceptions whatsoever." (a) This is called in the books a general special imparlance; and it would seem that the effect of an imparlance of this description is to pre- serve the power, not only of pleading all dilatory pleas, but of demanding oyer and a view, (b) The law and practice on the subject of imparlance still re- mains in the same state as here described, subject to the fol- lowing remarks : By the practice of the present day, a party is either obliged to answer the last antecedent pleading in the same term, or is entitled, as of course, to an imparlance to the next term, according to the period of the existing term, at which it be- comes his turn to plead, and the course of the previous pro- ceedings. The rules on this subject are too various, and merely practical, to be here stated. An imparlance, when not grantable as of course, may yet be obtained upon application, for some particular cause, at the discretion of the court. When an imparlance is grantable as of course, and a general imparlance will suffice, no actual prayer or application for it is now made, but the party entitled takes the imparlance for himself, by suspending his pleading till the next term. And on a general imparlance, no notice of the proceeding is usually taken in the pleadings filed and delivered between the par- ties, (c) But if the defendant, being entitled as of course to an imparlance, wishes, at the same time, to preserve his right of pleading dilatory pleas and taking other advantages, and consequently to obtain a special or general special imparlance, he must make an actual application to the court (d) for this purpose ; and where a special or general special imparlance is thus obtained, the defendant makes an entry of it in his plea (a) 2 Saund. 2, n. 2. (6) Vide 1 Chitty, 418. (c) 1 Chitty, 421. (d) But the special Imparlance in the common pleas may be granted by the prothono tary. 2 Saund. 2, note 2. 113.] PROCEEDINGS IN AN ACTION. 209 filed or delivered, (e) This is done exactly in the form of the ancient entry on record ; (/") and it stands as a commence- ment to his plea. These and other incidents of a similar kind may occur in pleading. If they take their course without opposition, they do not, as we have seen, long interrupt the main series of the allegations. But, with respect to most of them, the opposite party has a right, if he pleases, to oppose the prayer made on the other side ; and for this purpose he was entitled, in the ancient practice of pleading, to demur or plead to it, as if it were a statement of fact made in the direct course of the pleading. Thus, if a part} 7 demanded oyer in a case where, upon the face of the pleading, his adversary conceived it to be not demandable, the latter might demur; (g) or, if he had any matter of fact to allege as a ground why the oyer could not be demanded, he might plead such matter. (A) If he pleaded, the allegation was called a counter-plea to tlie oyer. So the demandant might have occasion in the same manner to counterplead the voucher, or counterplead the view; all pleadings of this incidental kind, diverging from the main se- ries of the allegations, being termed counter-pleas. (*) And in the latter instances, as well as upon oyer, it would seem there might be demurrer instead of counterplea, if the objec- tion appeared on the face of the proceedings. Again, on the counter-plea, in all these cases, there might happen to be a replication, and other subsequent pleadings, and so the parties might come to issue in law, or in fact, on this collateral sub- ject, in the same manner as upon the principal matters in con- troversy. It is to be observed, however, that these collateral or incidental pleadings, though according to the principle of the science they may occur, have now fallen into complete disuse in point of practice. (&) 113. Making: up the issue. Supposing the cause to be at issue, the next proceeding is to make a transcript upon paper of the whole pleadings that have been filed or delivered be- (e) 2 Chitty, 423; 2 Saund. 2, note 2. (/) As in the example supra, p. 207. (g) 1 Saund. 9 b, n. 1. (h) Id. (f) In Keg. Plac. 118, counter-plea is defined to be "a kind of replication." (fc) See an example of an issue upon counter-plea to the voucher in Formedon, Bro. Ent. 174. 210 CAUSES AND FORMS OF ACTION. [ 113. tween the parties. This transcript, when the issue joined is- an issue at law, is called the demurrer-look; when an issue in fact, it is called in the king's bench, in some^ cases, the issue; in others, the paper-look/ and in the common pleas, the issue. It contains not only the pleadings, but also entries, according to the ancient forms used in recording, (I) of the appearance of the parties, the continuances, and other acts supposed to be done in court, up to the period of issue joined, even though such entries have not formed part of. the pleadings as filed and deliv- ered ; and it concludes with an entry of an award by the court t of the mode of decision tendered and accepted by the pleadings. The making of this transcript, upon an issue in law, is called making up the demurrer-look; upon an issue in f act, making up the issue or paper-look. The demurrer-book, issue or paper- book, when made uj>, is delivered to the defendant's attorney, who, if it contains what he admits to be a correct transcript, re- turns it unaltered ; but if it varies from the pleadings that were filed or delivered, he makes application to the court to have it set right, (m) l Before dismissing the subject of this tran- script, it will be proper to notice the following point of prac- tice with respect to the manner in which the demurrer-book, issue or paper-book is made up and delivered. "Whenever the defendant demurs or traverses with a conclusion to the country (that is, with an offer of trial ly jury), instead of returning a regular joinder in demurrer or similiter on the part of the plaintiff before making up the demurrer-book, issue or paper- book, in the manner formerly described, (n) the usual course, in a view to expedite the proceedings, is to make up and de- liver to the defendant the demurrer-book, issue or paper-book at once ; inserting in it, however, a joinder in demurrer or a similiter for the plaintiff, (o) And this, in the case of an issue in fact, is done, not in the full and regular form of a joinder in issue (as formerly given), (p) but in the following abbrevi- ated style, viz. : " And the said A. B. does the like." Again, whenever the plaintiff demurs or traverses, concluding to the (I) Vide supra, p. 149. (tn.) Shepley v. Marsh, Str. 118L (n) Supra, pp. 193, 194. (o) 1 Arch. Pract. 131. (p) Supra, p. 194. *See Thynne v. Woodman, 2 Tyrw. 495. 114.] PROCEEDINGS IN AN ACTION. 211 country, the demurrer-book, issue or paper-book is, in like manner, made up at once and delivered to the defendant, with a joinder in demurrer or similiter inserted for him, the simili- ter being in the same abbreviated form : " And the said C. D. does the like." The defendant, however, having an option (as above explained) (^) with respect to the joinder in issue, is of course entitled, if he pleases, to strike out the similiter and demur. During the course of the pleading, if either party perceives any mistake to have been committed in the manner of his allegation, or if, after issue joined on demurrer for matter of form, he should think the issue likely to be decided against him, he ought to apply without delay for leave to amend. It is proper,, therefore, now to take some notice of the law of amendment. 114. Of amendments. Under the ancient system the par- ties were allowed to correct and adjust their pleadings during the oral altercation, and were not held to the form of state- ment that they might first advance, (r) So at the present day, until the judgment is signed (s) in the manner to be after- wards mentioned, either party is, in general, at liberty to amend his pleading as at common law; the leave to do which is granted as of course, (t) upon proper and reasonable terms, including the payment of the costs of the application, and sometimes the whole costs of the cause up to that time. 1 And even after the judgment is signed, and up to the latest period of the action, amendment is, in most cases, allowable at the discretion of the court, under certain statutes passed for allowing amendments of the record ; and in late times the (q) Supra, p. 193. (r) 2 Reeves, 849; Rush v. Seymour, 10 Mod. 88. (8) 2 Arch. Pract. 231. (t) Rush v. Seymour, 10 Mod. 88; 2 Tidd, 642, 4th ed. But not as of course in a real ac- tion. And, in general, the court will not allow an amendment hi an action of that class 1 Tidd, 644, 4th ed.; Dumsday v. Hughes, 8 Bos. & PuL 463; Charlwood v. Morgan, 1 X. R. 64, 233; Hull v. Blake, 4 Taunt. 572. 1 The proper practice is to present cannot amend so as to change cause a proposed amendment when leave of action entirely. Sears v. Mortgage to file it is asked, but the court, in its Loan Co., 56 Mo. App. 122. Amend- discretion, may give leave to amend merits may be made in pleadings by at a future time. McFarland v. Clay- inserting jurisdictional facts. Mitch- pool, 128 III 398 ; Ridgely Nat Bank ell v. Railroad Co., 82 Ma 106. v. Fairbank, 54 111. App. 296. One 212 CAUSES AND FORMS OF ACTION. [ 115. judges have been much, more liberal than formerly in the ex- ercise of this discretion. Amendments are, however, always limited by due consideration of the rights of the opposite party; and where, by the amendment, he would be prejudiced or exposed to unreasonable delay, it is not allowed. 1 115. Entering the issne. To return to the main course of proceeding. The pleadings and issue being adjusted by the making up, delivery and return of the demurrer-book, issue or paper book, the next step is to enter the issue on record. It will be remembered that the pleadings are framed as if they were copied from a roll of the oral pleadings. Such a roll (as has been shown) (u) did, in the time of oral pleading, exist, and still exists in contemplation of law ; but no roll is now actually prepared or record made till after issue joined and made up in manner above described. At that period, how- ever, a record is drawn up on a parchment roll. This pro- ceeding is called entering the issue, and the roll on which the entry is made is called the issue roll. The issue roll contains an entry of the term of which the demurrer-book, issue or paper book is entitled, and the warrants of attorney supposed to have been given by the parties at the commencement of the cause, authorizing their attorneys to appear for them, re- spectively ; (a?) and then proceeds with a transcript of the dec- laration and subsequent pleadings, continuances and award of the mode of decision, as contained in the demurrer-book, issue or paper-book. "When drawn up it is filed in the proper office of the court, (y) Of the manner of thus entering the issue on record the following are examples: (u) Supra, pp. 14&-150. Et vide Sel. IntrOd., bdy. (a;) 2 Tidd, 670; Impey, C. P. 863; and vide supra, p. 149. (y) 2 Tidd, 670, 671; 1 Sel. 335, 403. Such is the course of proceeding when strictly and formally pursued. But with respect to an issue in fact the statement is not quite practi- cally true, it being the general practice not to complete the issue roll hi that case by tran- scribing the whole of the proceedings into it, but to enter only what is called an incipitur, that is, the mere commencement or initial words of the issue or paper-book. Tidd, 671 ; Impey, C. P. 403. It did not seem worth while to embarrass the statement in the teyt by noticing this circumstance. i Koch v. Both, 150 III 212. The tant that it is thought best to insert subject of amendments is so impor- a note to the author's note 33, App. -115.] PROCEEDINGS IN AN ACTION. 213 ENTRY OF ISSUE. On Demurrer. With an imparlance. (In the King's Bench by original. In an action of covenant.) As yet of Term, in the year of the reign of King George the Fourth. "Witness Sir Charles Abbott, Knight. , to wit, A. B. puts in his place E. F., his attorney, against C. D., in a plea of breach of covenant. , to wit, C. D. puts in his place G. H., his attorney, at the suit of the said A. B., in the plea aforesaid. , to wit, C. D. was summoned to answer (as in the dec- laration, supra, p. 158). And the said C. D., by , his attorney, comes and defends the wrong and injury when, etc., and prays a day thereupon to imparl to the said declaration of the said A. B. ; and it is granted to him, etc. And upon this a day is given to the parties aforesaid, before our lord the king, until , wheresoever, etc., that is to say, for the said C. D. to im- parl to the declaration aforesaid, and then to answer the same. At which day, before our said lord the king at "Westminster, come the parties aforesaid, by their attorneys aforesaid ; and the said C. D. says that the said A. B. ougfit not to have or maintain (etc., as in ike plea, supra, p. 160). And the said A. B. says that, by reason of anything in the said plea alleged, he ought not to be barred (etc., as in the replication, supra, p. 197). And the said C. D. says that the said replication of the said A. B. to the said plea of him, the said C. D., and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law (etc., as in the demurrer, supra, p. 198). And the said A. B. says that the said replication and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law for him, the said A. B., to have and maintain his aforesaid action against the said C. D. And the said A. B. is ready to verify md prove the same, as the court here shall direct and award. "Wherefore, inasmuch as the said C. D. hath not answered the said replication, nor hitherto in any manner denied the same, the said A. B. prays judgment, and his damages by him sus- tained by reason of the said breach of covenant, to be ad- judged to him. But because the court of our lord the king, now here, are not yet advised (2) what judgment to give of GO This concluding part of the entry, beginning But because, etc., is called an entry of curia advisare vult, which were the words used when the record was in Latin. It is an award of the mode of decision, viz.: that by the judgment of the court. This, as well as the knparlance, is one of the kinds of continuance; as to which, vide supra, pp. 148-206. 214 CAUSES AND FOKMS OF ACTION. [ 115, and upon the premises, a day is given to the parties aforesaid before our lord the king, on , wheresoever, etc., to hear judgment thereon, for that the said court of our lord the king now here are not yet advised thereof, (a) ENTRY OF ISSUE. On an Issue in Pact to be tried by a Jury. Without an imparlance. (In the King's Bench by original. In an action of covenant.) As yet of Term, in the year of tha reign of King George the Fourth. Witness, Sir Charles Abbott, Knight. to wit, A. B. puts in his place E. F., his attorney, against C. D., in a plea of breach of covenant. to wit, 0. D. puts in his place G. H., his attorney, at the suit of the said A. B., in the plea aforesaid. to wit, 0. D. was summoned to answer (as in the dec- laration, supra, p. 158). And the said 0. D., by , his attorney, comes and defends the wrong and injury, when, etc., and says (as in the plea, supra, p. 189). And the said A. B. says that, by reason of anything in the said plea alleged, he ought not to be barred from having and maintaining his aforesaid action against the said C. D., because he says (as in the replication, supra, p. 197). And the said C. D. saith that, by reason of anything in the said replication alleged, the said A. B. ought not to have or maintain his aforesaid action against him, the said C. D., be- cause he says (as in the rejoinder, supra, p. 197). And the said A. B. does the like. (5) Therefore it is com- manded to the sheriff (o) that he cause to come before our lord the king, on , wheresoever our said lord the king shall then be in England, twelve, etc., by whom, etc., and who neither, etc., to recognize, etc., because as well, etc. The same day is given to the parties aforesaid, etc. (d) The action being now brought to that stage at which the issue is recorded, the next subject for consideration is the manner in which the issue is decided. (a) For the form of entering the issue, as above given, see Tidd's .Appendix, chs. TTTJ, rxxix; 1 Arch. Pract. 134. (b) As to this abbreviated form of the similiter, see supra, p. (c) The concluding clause, beginning, Therefore it it commanded, etc., is an entry of the award of the mode of decision. Where this is by Jury, the award is that of a writ of venire facias to summon a jury; to which the language of the above entry refers. (d) For the form of entering the issue, as above given, see Tidd's Appendix, chs. xxxi, xxxix; 1 Arch. Pract. 134. 116-118.] PROCEEDINGS IN AN ACTION. 215- 116. The decision of issues in law is vested (as it always has been) (e) exclusively in the judges of the court. There- fore when, upon a demurrer, the issue in law has been en- tered on record in the manner above described, it is entered for argument that is, set down to be argued in court on a day appointed for the purpose. On that day, or as soon after- wards as the business of the court will permit, it is accordingly argued viva voce, in court, by the respective counsel for the parties; and the judges, in the same manner and place, pro- nounce their decision according to the majority of voices. The manner of deciding issues in fact will require explana- tion at greater length. 117. Trial of issues in fact. The decision of the issue in fact is called the trial, (f) The different methods of trial now in force are the following: The trial by jury, by the grand assize, by the record, by certificate, by witnesses, by inspection, and by wager of law. (g) These occur, however, in very different degrees of frequency in practice. Every mode of trial except that by jury is of rare admissibility; being not only confined to a few questions of a certain nature, but in general also, if not universally, to such questions when arising in a certain form of issue, (h) And to all issues not thus specially provided for, the trial by jury applies, as the ordinary and only legitimate method, (i) On the other hand, however, it is to be observed, with respect to these occasional modes of trial, that, when competent, they are in general exclusively appropriate; so that the party by whom they are proposed in the pleading has a right to insist on their being applied, to the exclusion of the trial by jury. 118. Trial by jury. First shall be considered the ordinary method, or trial by jury. It will be remembered that when the parties have mutually referred the issue to decision by a jury, or (as it is technically termed) have put themselves upon the country, there is entered upon the roll (as in all other cases) the award of the mode of (e) Supra, p. 147. (/) See Appendix, note (30). (g) Vide 3 Bl. Com. 330, where the enumeration is the same; with only the nominal dif- ference that the grand assize is there classed as a species of trial by jury. (70 Vide Cro. Jac. 102. (t) Ilderton v. nderton, 2 H. BL 146. 216 CAUSES AND FOKMS OF ACTION. [ 118. decision adopted. In the case of the trial by jury, that award directs the issuing of the writ of venire facias, commanding the sheriff of the county where the facts are alleged by the pleading to have occurred, to summon a jury to try the issue; (&) and such writ is accordingly sued out. The follow- ing is an example of its modern form : VENIBE FACIAS. Upon the issue, supra, p. 214. George the Third, etc., to the Sheriff of , Greeting: We command you that you cause to come before us, on , wheresoever we shall then be in England, twelve free and lawful men of the body of your county, each of whom has ten pounds a year at the least of lands, tenements or rents, by whom the truth of the matter may be better known, and who are in no wise of kin either to A. B., the plaintiff, or to C. D., late of , Esquire, the defendant, to make a cer- tain jury of the country between the parties aforesaid of a plea of breach of covenant, because as well the said C. D. as the said A. B., between whom the matter in variance is, have put themselves upon that jury ; and have there the names of the jurors and this writ. "Witness, Sir Charles Abbott, Knight, at Westminster, the day of in the year of our reign. (I) The venire facias, it will be observed, directs the jury to be summoned to appear in the superior court. This is because the trial was in fact anciently had there. But, except in some few cases to be presently noticed, the trial by jury no longer takes place before the superior court. It is now usually con- ducted in the county where the facts are alleged in pleading to have occurred and into which the venire facias issues; and before certain judges called the justices of assize and nisi prius. The trial is in such cases said to be had at nisi prius; (m) and when it is to be so had, the course of proceed- ing is, after an issue to be tried by jury has been entered on record on the issue roll, to sue out the venire facias, to- gether with another writ, for compelling the attendance of the jury, called the distringas in the king's bench, in the com- mon pleas the haleas corpora. The next step is to make up (K) Vide the form of this award, supra, p, 214. 0) TidiTs Appendix, 208. (w) See Appendix, note (31). PROCEEDINGS IN AN ACTION. 217 and pass, at the proper offices, another record on a parchment roll, called the record of nisi prius; which is a transcription from the issue-roll, (ri) and contains a copy of the pleadings and issue. This nisi prius record is then delivered to the judges of assize and nisi prius, and serves for their guidance as to the nature of the issue to be tried. The trials at nisi priiis now take place in London and Middlesex, several times in the course of each term, and also during a considerable part of each vacation ; in every other county, they are held twice a year, and always in time of vacation. The justices of assize and nisi prius, for trials in London and Middlesex, con- sist of the chief justices of the three courts respectively, each trying only the issues from his own court. For trials in the other counties, they consist of such persons as are ap- pointed for the purpose, by temporary commission from the crown ; among whom are usually for each circuit two of the judges of the superior courts ; the whole kingdom being di- vided into six circuits for the purpose. 119. Trial by jury. Though the trial by jury is thus in general had at nisi prius, this is not universally the case ; for in cases of great difficulty and consequence, these inquests are allowed to be taken before the four judges in the superior court in which the pleading took place, as in the ancient practice. The proceeding is then technically said to be a trial at lar, by way of distinction from the trial at nisi prius. 1 After these explanations as to the time and place of trial by jury, the next subject for consideration is the course of the proceeding itself. (n) 2 Tidd, 700. 1 Trials of issues in fact by the court is a very usual mode of trial at the present day ; and in order to make it appear upon the record whether the trial judge was basing his conclu- sion upon a certain finding of fact or an erroneous view of law, the prac- tice is to submit to him propositions of law. In this manner the facts are separated from the law, and the ques- tions both of law and fact may be argued in the appellate tribunal. If such propositions are not asked, the presumption is indulged that the court held the facts against the de- feated party under a correct view of the law. These propositions should be propositions of law, not of fact, as the finding will be upon the fact Field v. Crawford, 146 DL 136 ; Com- mercial Nat Bank v. Cannif (III, 1894), 87 N. E. Rep. 898; Am. Ex. Bank v. Chicago Nat Bank, 131 III 647. 218 CATJSES AND, FORMS OF ACTION. [ 119 The whole proceeding of trial by jury takes place under the superintendence of the presiding judge or judges, who usually decide all points as to the admissibility of evidence, and di- rect the jury on all such points of law arising on the evidence as is necessary for their guidance in appreciating its legal effect, and drawing the correct conclusion in their verdict. 1 After hearing the evidence of the witnesses, the addresses of counsel, and the charge of the judge, the jury pronounce their verdict; which the law requires to be unanimously given. The verdict is usually in general terms, " for the plaintiff," or "for the defendant;" finding at the same time (in case of verdict for the plaintiff, and where damages are claimed by the action) the amount of damages to which they think him entitled. The principles upon which the law requires the jury to form their decision are as follows : 1. They are to take no matter into consideration but the question in issue; for it is to try the issue, and that only, that they are summoned. 2 Thus, upon pleadings such as are re- corded in the issue roll (supra, p. 214:), they would only have to consider whether the release was executed by duress or not. Of the execution of the indenture of lease they could not in- quire ; for it is not ^n issue. 2. They are bound to give their verdict for the party who, upon the proof, appears to them to have succeeded in estab- 1 See Eastman v. Manufacturing dence adduced, and to declare the Co., 44 N. H. 143, 82 Am. Dec. 201 ; respective rights of the parties as in- Deming v. Foster, 42 N. H. 165. volved in the issue with certainty, so 2 Nothing but the immediate ques- that the judgment can be entered tion in issue is settled by the verdict with like certainty, and the ministe- McGinnis v. Canada South. Bridge rial officers can carry it into execution Co., 49 Mich. 466. Without an issue a without determining additional facts, verdict is void. Stephens v. People, 13 Barnet v. Caruth, 20 Tex. 173 ; Staf- 111.131; Israel v.Reynolds, 11 id. 2 18; ford v. King, 30 id. 257. See, also, Reynolds v. Stockton, 140 U. S. 254. Patterson v. United States, 2 Wheat The statement in Thompson on Trials, 221; Brockway v. Kinney, 2 Johns, section 2310, if intended to state that 210 ; Groves v. Bailey, 24 Miss. 588. the jury or court may try anything Gross v. Sloan, 54 111. App. 202; beyond the issue, is not supported by Moody v. Keener, 7 Port (Ala.) 218 ; authority. The object of the verdict Ronge v. Dawson, 9 Wis. 246 ; Hob. is to respond to and decide the issues - 53. between the parties upon the evi- 120, 121.] PROCEEDINGS IN AN ACTION. lishing his side of the issue. 1 Thus, in the same example, the rerdict must be given for the plaintiff, if the jury think the duress is established in proof; otherwise, for the defendant. 120. Burden of proof. 3. The burden of proof generally is upon that party who, in pleading, maintained the affirma- tive of the issue; for a negative is, in general, incapable of proof. 2 Consequently, unless he succeed in proving that af- firmative, the jury are to consider the opposite proposition, or negative of the issue, to be established. Thus, in the same example, it would be for the plaintiff to prove the duress, for it is he who affirms it ; and if, on such proof, he fails, or offers no proof, the jury must find for the defendant. 121. Variance. Under this head comes to be considered the doctrine of variance. 3 The proof offered may, in some 1 Issues in civil cases are to be de- termined in accordance with the pre- ponderance of the evidence. It is not required that the evidence should be satisfactory. In this respect a civil case differs from a criminal one, and for a manifest reason. In a civil case the jury must find in favor of one or the other party, though the evi- dence be never so unsatisfactory. So it is said that the rights of men must be determined by probability. Bur- rill on Circumstantial Evidence, p. 81 ; Gammon v. Ruffin, 151 Mass. 204; Beardstown v. Virginia, 76 111. 44; Graves v. Colwell, 90 id. 612 ; Strat- ton v. Cent. C. H. R. Co., 95 id. 25. The ordinary presumptions of inno- cence, continuance of facts, failure to testify as to facts within knowl- edge, all act as evidence in a case. Gammon v. Ruffin, supra; 1 Green- leaf on Evidence, sec. 41 ; Shipherd v. Underwood, 55 111. 482 ; Gordon v. People, 33 N. Y. 509; Jones v. Greaves, 26 Ohio St 2 ; Best's Right to Begin, 81. These presumptions no enlightened tribunal disregards. New Orleans v. United States, 10 Pet 721 ; Jackson v. Warford, 7 Wend. 62 ; Hutchinson v. Dubois, 45 Mich. 143 ; Marquette v. Ward, 50 id. 174 ; Wood v. Barker, 49 id. 295; Campbell v. Sherman, 49 id. 534. The verdict must not be found upon a statement of the facts by a juror. Foster's Will, 34 Mich. 21. 2 Where a fact rests in the knowl- edge of a party and he fails to make it appear so as to clear up the case, the jury may infer against the party on that account Lockhart v. White, 77 Ga. 786. See McEvoy v. Swayze, 34 Neb. 315; Odum v. Rutledge & J. R. Co., 94 Ala. 454. As to who has the burden of proof and right to open and close, see Benham v. Rowe, 2 CaL 387; Harvey v. Illithorpe, 26 III 418; Beatty v. Hatcher, 13 Ohio St. 115; Yingling v. Hesson, 16 Md. 112; Mar- shall v. Am. Exp. Co., 7 Wis. 1; Kent v. Mason, 79 111. 541 ; McReynolds v. B. & O. R. R. Co., 106 id. 152; Car- penter v. First Nat. Bank, 119 id. 352. As to whether defendant can obtain the open and close in slander and libel, see Thompson on Trial, 230; Fry v. Bennett, 28 N. Y. 324; Mercer v. Whall, 5 Ad. # El. (N. S.) 447-463; Best's Right to Begin, 34. 3 See "Theory." 220 CAUSES AND FORMS OF ACTION. [ 121. cases, wholly fail to support the affirmative of the issue ; but in others it may fail by a disagreement in some particular point or points only between the allegation and the evidence. 1 Such disagreement, when upon a material point, is called a variance, and is as fatal to the party pn whom the proof lies as a total failure of evidence; the jury being bound, upon variance, to find the issue against him. For example: the plaintiff declared in covenant for not repairing pursuant to the covenant in the lease, and stated the covenant as a cove- nant to " repair when and as need should require ; " and issue was joined on a traverse of the deed alleged. The plaintiff, at the trial, produced the deed in proof, and it appeared that the covenant was thus : to repair " when and as need should require, and at farthest after notice; " the latter words having been omitted in the declaration. This was held to be a vari- ance, because the additional words were material, and quali- fied the legal effect of the contract, (o) On the other hand, however, the principle is not so rigorously observed as to oblige the party on whom the proof lies to make good his allegation to the letter. It is enough if the substance of the issue is exactly proved ; (p) and a variance in mere form, or in matter quite immaterial, will not be regarded. 2 Thus, in (o) Horsefall v. Tester, 7 Taunt. 385; and see Browne v. pull, 2 Brod. & Bing. 895; Vansandan v. Burt, 5 Barn. & Aid. 42. Cp) Com. Dig., Pleader, sec. 26; Vin. Ab., Evidence, note a, 10; B. N. P. 299; Doct. PL 191, 205; Price v. Brown, 1 Wils. 116; Coare v. Giblett, 4 East, 90; and see the cases cited, 1 Arch. 836. 1 It is said that the codes recognize 508 ; Harper v. Milwaukee, 80 Wis. three degrees of variance : 1. An 365 ; Fisk v. Tank, 12 id. 276 ; Dean immaterial variance. 2. When the v. Notes, 23 Ohio St. 388; Super- proof varies from the allegation, visors v. Decker, 30 Wis. 624; Ross 8. Where the evidence wholly fails v. Mathen, 51 N. Y. 108; Roth to agree with the allegation. Pome- v. Roth, 31 Wia 570 ; Anderson v. toy's Code Rem., 552. But it is ap- Case, 28 id. 505 ; Terry v. Hunger, parent that the immaterial variance 121 N. Y. 161. The cases on election is no variance in law, and that the of remedy will illustrate this point analysis differs only in form of ex- Where the party could not have been pression. misled, a variance in the description 2 See Buhl v. Trowbridge, 42 Mich, of a written instrument in the plead- 44; McDonough v. Heyman, 38 id. ings will be disregarded. Rorabacher 334; Patterson v. Detroit, L. & N. v. Lee, 16 Mich. 169; Lathrop v. R Co., 56 id. 173; Lull v. Davis, 1 Southworth, 5 id. 436. Where the id. 77; Arnold v. Angel 1, 62 N. Y. declaration contains several counts 122.] PKOCEEDINGS IN AN ACTION. 221 debt on bond conditioned for payment of money, where the defendant pleaded payment of principal and interest, and the plaintiff replied that he had not paid all the principal and in- terest, and issue was joined thereon, and the proof was that the whole interest was not in fact paid, but that the defend- ant paid a sum in gross, which was accepted, in full satisfac- tion of the whole claim, the issue was considered as suffi- ciently proved on the part of the defendant, (q) l 122. The verdict, when given, is afterwards drawn up in form, and entered on the back of the record of nisi prius? This is done, upon trials in London and Middlesex, by the at- torney for the successful party; in other cases, by an officer of the court, (r) Such entry is called the posted^ from the word with which, at a former period (when the proceedings were in Latin), it commenced. The posted is drawn up in the negative or affirmative of the issue, as will appear by the fol- lowing example : POSTEA. For the Plaintiff, on the Issue, at p. 214, if tried at Nisi Prius, in London or Middlesex. Afterwards, that is to say, on the day, and at the place within contained, before the Right Honorable Sir Charles Abbott, Knight, the chief justice within mentioned (John (g) Str. 690. (r) 2 Tidd, 795 (4th ed.). and there is a variance between the enter it in form under the direction first count and the proof, but such of the court It may be reduced to variance does not extend to the other writing and signed by the jury, or counts, the recovery may be sustained it may be delivered orally. Griffin under these counts. L. E. & W. R. v. Larned, 111 111. 432. If it is in R. Co. v. Middlecoff, 150 111. 27. writing and signed, and is good in 1 Variance must be pointed out substance, the court may, in the upon the trial that it may be obvi- presence of the jury, reduce it to ated by amendment Nelson v. form, if defective. Osgood v. Mc- Smith, 54 111. App. 345. See McHardy Connell, 32 111. 74; Pekin v. Winkel, v. Wadsworth, 8 Mich. 349 ; McCoy 77 id. 56 : Godf riedson v. People, 88 v. Brennan, 61 id. 362 ; Merkle v. id. 284 And see Sleight v. Henning, Bennington, 68 id. 133; Robinson C. 12 Mich. 371. Or the jury may be C. Co. v. Johnson, 13 Colo. 258. sent back with instructions as to 3 In Illinois there is no fixed rule the proper form (Smith v. Will- as to the form in which the verdict iams, 22 111. 357), if good in sub- is to be rendered. The clerk is to stance, that is, sufficient under the 15 222 CAUSES AND FORMS OF ACTION. [ 123. Henry Abbott, Esquire, being associated to the said chief jus- tice, according to the form of the statute in such case made and provided), come as well the within-named A. B. as the said C. D., by their respective attorneys within mentioned ; and the jurors of the jury, whereof mention is within made, being summoned, also come, who, to speak the truth of the matters within contained, being chosen, tried and sworn, say, upon their oath, that the said A. B. was, at the time of the making of the said deed of release within mentioned, unlaw- fully imprisoned and detained in prison by the said C. D., until by force and duress of that imprisonment he, the said A. B., made the said deed of release in manner and form as the said A. B. hath within alleged. And they assess the dam- ages of the said A. B. by reason of the said breach of cove- nant within assigned, over and above his costs and charges by him about his suit in this behalf expended, to fifty pounds; and for those costs and charges to forty shillings. Therefore, etc. (s) Such is the course of trial at nisi prius y in its direct and simple form ; and the practice of a trial at bar is, in a general view, the same. Trials by jury, however, whether at bar or nisiprius, are subject to certain varieties of proceeding; some of which require to be here noticed. 123. Bill of exceptions. If, at the trial, a point of law arises, either as to the legal effect or the admissibility of the evidence, the usual course (as already stated) is for the judge to decide these matters. 1 But it may happen that one of the parties is dissatisfied with the decision, and may wish to have () Tidd's Appendix, en. xxxvii; 5 Went. 62. statute of jeofaila Wiggins v. Chi- considers inadmissible, either on ac- cago, 68 111. 372 ; Lincoln T'p v. Cam- count of the incompetency of the in- bria Iron Co., 103 U. S. 412. The court strument of proof, whether a witness usually, in the first instance, indi- or document, or because of irrele- cate to the jury, before retiring, in Tancy, is to object, and the ruling of what language the verdict should be the court may be preserved by the announced. Illinois Cent R. R. Co. party against whom the ruling is v. Wheeler, 149 111. 525. made, by an exception. See Bill of i The order of introducing proof is Exception. Bloomington v. Legg, largely within the discretion of the Adm'r, 151 111. 9. judge, but not entirely so. Lafay- If by no theory the evidence ob- ette, B. & M. R. Co. v. Winslow, 66 jected to can be competent, a gen- III 219 ; Lycoming Ins. Co. v. Rubin, eral objection will suffice ; but if the 79 id. 402 ; People v. Parish, 4 Denio, objection could be obviated, the spe- 153. cial grounds of the objection must The proper course of counsel upon be stated. Brandt v. Trimmer, 47 the offering of evidence which he N. Y. 96; St Clair Co. Benevolent 123.] PROCEEDINGS IN AN ACTION. 223 it revised by a superior jurisdiction. If he is content to refer it to the superior court in which the issue was joined, and out of which it is sent (called, by way of distinction from the court at nisi prius, the court in oanfy, his course is to move, in that court, for a new trial/ a proceeding of a future or sub- sequent period, which will be considered hereafter in its proper place. But, as the nisi prius judge himself frequently belongs to that court, a party is often desirous, under such circumstances, to obtain the revision of some court of error; i. e., some court of appellate jurisdiction having authority to correct the decision. For this purpose it becomes necessary to put the question of law on record for the information of such court of error; and this is to be done pending the trial, in a form marked out by an old statute (Westminster 2 ; 13 Ed. I., ch. 31). The party excepting to the opinion of the judge tenders him a Mil of exceptions; that is, a statement in writing of the objection made by the party to his decision ; to which statement, if truly made, the judge is bound to set his seal, in confirmation of its accuracy. The cause then pro- ceeds to verdict, as usual, and the opposite party, for whom, the verdict is given, is entitled, as in the common course, to judgment upon such verdict in the court in bank; for that court takes no notice of the bill of exceptions, (f) But the whole record being afterwards removed to the appellate court by writ of error (a proceeding to be hereafter explained), the bill of exceptions is then taken into consideration in the latter court and there decided, (u) l Though the judge usually gives his opinion on such points of law as above supposed, yet it sometimes happens that for various reasons he is not required by the parties, or does not wish to do so. In such case several different courses may be pursued for determining the question of law. (*) 1 Sel. 470. (w) See the whole course of proceeding on the bill of exceptions, minutely stated, 3 Burr. 1692; and on the subject of bill of exceptions generally, see 2 Lev. 236; Salk. 288; 2 Black. 929; 2 T. R. 125; 1 Bos. & PuL 32; 5 East, 49. Soc. v. Fietsam, 97 I1L 477; Harden argument; but on objection for want v. Forsythe, 99 id. 826. of relevancy, the party offering the On an objection to the competency evidence has the burden. Best's of a witness the objector has the bur- Right to Begin, p. 37, note, den, and should open and close the J See Bill of Exceptions, infra. 22-4 CAUSES AND FOKMS OF ACTION. [ 12i s 125. 124. Demurrer to evidence. First, a party disputing the legal sufficiency of any evidence offered, or its admissibility in point of law, may demur to the evidence. A demurrer to evidence is analogous to a demurrer in pleading ; the party from whom it comes declaring that he will not proceed be- cause the evidence offered on the other side is not sufficient to maintain the issue. Upon joinder in demurrer by the op- posite party, the jury are, in general, discharged from giving any verdict ; (a?) and the demurrer, being entered on record, is afterwards argued and decided in the court in bank ; and the judgment there given upon it may ultimately be brought before a court of error, (y) * 125, General and special verdict. A more common, be- cause more convenient, course than this, to determine the legal effect of the evidence, is to obtain from the jury a special verdict in lieu of that general one, of which the form has al- ready been described. For the jury have an option, instead of finding the negative or affirmative of the issue, as in a gen- eral verdict, to find all the facts of the case as disclosed upon the evidence before them, and, after so setting them forth, to conclude to the following effect: "that they are ignorant, in point of law, on which side they ought, upon these facts, to find the issue; that if, upon the whole matter, the court shall be of opinion that the issue is proved for the plaintiff, they find for the plaintiff accordingly, and assess the damages at such a sum, etc. ; but if the court are of an opposite opinion, then vice versa. This form of findings is called a special ver- dict. However, as on a general verdict, the jury do not them- selves actually frame the postea, so they have, in fact, nothing to do with the formal preparation of the special verdict. When it is agreed that a verdict of that kind is to be given, (x) 1 Arch. Pract. 188. (y) For full information on the subject of demurrer to evidence, see Johnson v. Hunter, 8 H. Bl. 187. 1 A demurrer to the evidence, a Adler, 129 id. 835 ; Crowe v. People, motion to exclude all the evidence, 92 id. 231 ; Dormady v. State Bank, and a motion for a verdict, all per- 2 Scam. 236 ; Fent v. T. P. & W. Ry., form substantially the same office, 59 id. 349; Penn Co. v. Conlon, 101 and have the same effect as an ad- id. 93. See Mitchell v. Mo. P. Ry., 83 mission. Suydam v. Williamson, 20 Mo. 106. See, also, Directing a Ver- How. 433 ; C. & N. W. Ry. v. Dun- diet, p. 207. leavy, 129 111. 132; G & A. Ry. v. 125.] PROCEEDINGS IN AN ACTION. 225 the jury merely declare their opinion as to any fact remain- ing in doubt; and then the verdict is adjusted without their farther interference. It is settled, under the correction of the judge, by the counsel and attorneys on either side, according to the state of facts as found by the jury, with respect to all particulars on which they have delivered an opinion, and with respect to other particulars according to the state of facts which it is agreed that they ought to find upon the evidence before them. The special verdict, when its form is thus set- tled, is, together with the whole proceedings on the trial, then entered on record; and the question of law arising on the facts found is argued before the court in bank, and decided by that court, as in case of demurrer. If the party be dissatis- fied with their decision, he may afterwards resort to a court of error. 1 It is to be observed that it is a matter entirely in the op- tion of the jury whether their verdict shall be general or spe- cial, (s) The party objecting in point of law cannot therefore insist on having a special verdict, and may consequently be driven to demur to the evidence at least if he wishes to put the objection on record, without which no writ of error can be brought, nor the decision of a court of error obtained. But if the object be merely to obtain the decision of the court in bank, and it is not wished to put the legal question on record in a view to a writ of error, then the more common (because the cheaper and shorter) course is, neither to take a special verdict nor demur to the evidence, but to take a general verdict, subject (as the phrase is) to a special case; that is, to a written statement of all the facts of the case, drawn up for the opin- ion of the court in bank, by the counsel and attorneys on either (z) 1 Arch. Pract 189. 1 A special verdict is one by which Coyle, 58 Pa. St 461 ; Vincent v. Mor- the facts of the case are put on rec- rison, supra. Finding sufficient evi- ord, and the law submitted to the dence prima facie to establish facts judges. 2 Bosw. 623; Vincent v. essential upon which to found the Morrison, Breese (111.), 175; Newell, judgment is not sufficient. All the Mai. Pros. 553. The special verdict essential facts must be found. Blake should find facts, not mere evidence, v. Davis, 20 Ohio, 231. A special ver- The court has to do with questions diet cannot be aided by intendment of law only. Chicago, etc. R Co. v. Lee v. Campbell, 4 Porter (Ala.). 198. Duuleavy, 129 III. 132; Seward v. For form of special verdict, see Beck- Jackson, 8 Cow. 406 ; Kinsley v. hill v. Turnpike Co., 3 DalL *496. 226 CAUSES AND FORMS OF ACTION. [ 126, side, under correction of the judge at nisi prius, according to the principle of a special verdict, as above explained. The party for whom the general verdict is so given is, of course, not en- titled to judgment till the court in bank has decided on the special case ; and according to the result of that decision the verdict is ultimately entered either for him or his adversary. A special case is not (like a special verdict) entered on record; and consequently a writ of error cannot be brought on this decision. 1 126. Special verdict Special findings [By statute in Illinois, In all trials by jury in civil proceedings in courts of record the jury may render, in their discretion, either a general or a special verdict; and in any case in which they render a general verdict they may be required by the court, and must be so required on request of any party to the action, to find specially upon any material question or questions of fact which shall be stated to them in writing, which questions of fact- shall be submitted by the party requesting the same to the adverse party before the commencement of the argument to the jury. 2 When the special finding of fact is inconsistent with the gen- eral verdict, the former controls the latter and the court must render judgment accordingly. The provisions of this statute, so far as they relate to gen- eral and special verdicts, are almost identical with the com- mon law that is, they leave the jury the option to render either kind of a verdict, 8 but if a general verdict is returned the jury must return answers to requests for special find- ings. ! A special verdict cannot be re- mond, 148 111. 241; Suydam v. Will- quired, but it is common to provide iamson, 20 How. 427; Mumford v. by statute for special findings of Ward well, 6 Wall. 428; Collins v. fact -by the jury. 156 111. 244. That Riley, 104 U. S. 322; Barnes v. Rem- these two are not the same, see C. & bady, 150 IIU 192. N. W. Ry. Co. v. Dunleavy, 129 111. 132; 2 As there may be several causes Seward v. Jackson, 8 Cow. 406; Kins- joined, there may be several verdicts, ley v. Coyle. 58 Pa. St. 461; Leach v. Tarns v. Lewis, 42 Pa. St. 410. Church, 10 Ohio St. 149; Alhambra 3 Wabasb. R. Co. v. Speer, 156 I1L Add. W. Co. v. Richardson, 72 Cal. 244. 698; Elgin, J. & E. R. Co. v. Ray- . 127.] PEOOEEDINGS IN AN ACTION. 227 These special findings are a part of the record. The follow- ing are examples of questions for special findings: (1) Do you find from the evidence that it is a common cus- tom for two men, in unloading trucks or wagons, to swing or hand down barrels of a similar character and weight without the use of a barrel-step or other support to rest them on? No. (2) In swinging or handing down the barrels of salt with- out the use of a barrel-step or other support to rest the barrel on, was there any danger which was not as plain and apparent to Gall as to Freichl? Yes. (3) Was the falling of the barrel an accident which might, under similar circumstances, happen to any two ordinarily careful men working together ? Yes. (4) Was the accident caused by the carelessness on Freichl's part in the manner in which he handled his side of the barrel ? Tes.] 127. Proceedings after yerdict. "We must now return to the course of proceeding after trial by jury, in what has been here called its direct or simple form. The proceedings on trial by jury at nisiprius or at lar ter- minate with the verdict. In case of trial at nisiprius, the return-day of the last jury process, the distringas or habeas corpora (which, like all other judicial writs, is made returnable into the court from which it issues), always falls on a day in term subsequent to the trial, and forms the next continuance of the cause. On the day given by this continuance, therefore, which is called the day in bank, the parties are supposed again to appear in the court in bank, and are in a condition to receive judgment. On the other hand, in case of trial at bar, the trial takes place on or after the return-day of the last jury process ; and therefore, immediately after the trial, the parties are in court, so that judgment might be given. In either case, however, a period of four days elapses before, by the practice of the court, judg- ment can be actually obtained. And during this period cer- tain proceedings may be taken by the unsuccessful party to avoid the effect of the verdict. He may move the court to grant a new trial, or to arrest the judgment, or to give judgment 228 CAUSES AND FOBMS OF ACTION. [ 127. non obstante veredicto, or to award a repleader, or to award a venire facias de novo. (a) Of these, briefly, in their order. 1. With respect to a new trial: It may happen that one of the parties may be dissatisfied with the opinion of the nisi prius judge, expressed on the trial, whether relating to the effect or admissibility of evidence, or may think the evidence against him insufficient in law, where no adverse opinion has been expressed by the judge, and yet may not have obtained a special verdict, or demurred to the evidence, or tendered a bill of exceptions. He is at liberty, therefore, after the trial and during the period above mentioned, to move the court in bank to grant a new trial on the ground of the judge's having misdirected the jury, 1 or having admitted or refused evidence contrary to law? or (where there was no adverse direction of the judge) on the ground that the jury gave their verdict con- trary to the evidence, or on evidence insufficient in law. 1 And resort may be had to the same remedy in other cases where justice appears not to have been done at the first trial; as where the verdict, though not wholly contrary to evidence or on insufficient evidence in point of law, is manifestly wrong in point of discretion, as contrary to the weight of evidence^ and on that ground disapproved by the nisi prius judge. 4 So a new trial may be moved for where a new and material fact has come to light since the trial, which the party did not know and had not the means of proving before the jury, 5 or where (a) 2 Tidd, 798. 1 These matters are so purely prac- v - Gilkeson, 5 S. & R. 352; Clark v. tice that nothing more can be given Lake, 1 Scam. 229; Sertel v. Graeter, here than some idea of whereto find U2 Ind. 117; Briant v. Trimmer, 47 the subjects fully discussed. For the N - Y. 96; Chicago W. D. R. Co. v. form and requisites of instructions, Klauber, 9 Brad. 613. see Sacket on Instructions; Illinois 3 Kelly v. Mack, 49 Cal. 523; Beal Linen Co. v. Hough, 91 III 63; Kamp- v. Stone, 22 Iowa, 447; Heine v. Mor- house v. Gaffner, 73 id. 453; Hoener rison, 13 Ma App. 577; Weston v. v. Koch, 84 id. 408; Herrick v. Gary, Johnson, 48 Ind. 1; Herrick v. Gary, 83 id. 86. 83 111 86; Hoener v. Koch, 84 id. 2 The evidence must have been ma- 408. teriaL Thompson v. Thompson, 77 4 Sharp v. Hoffman. 79 CaL 404; Ga. 692; Glover v. Flowers, 101 N. C. Ruffner v. Hill, 31 W. Va. 428; Stein- 134; Dannenberg v. Guernsey, 80 Ga. metz v. Currey, 1 DalL 234; Mary- 549; Gainsville v. Caldwell, 81 id. land Ins. Co. v. Ruden, 6 Cranch, 338. 76; Huntington& Broad Top Mount. 6 The newly-discovered evidence Co. v. Decker, 82 Pa. St. 119; Nash must be material Atlanta v. Bu- 127.] PROCEEDINGS IN AN ACTION. 229 the damages given by the verdict are excessive? or where the jury have misconducted themselves, as by casting lots to deter- mine their verdict, etc. 8 In these and the like instances the court will, on motion and in the exercise of their discretion, under all the circumstances of the case, grant a new trial, that opportunity may be given for a more satisfactory decision of the issue. 3 A new jury process consequently issues, (5) and (&)2Tidd,808. 8 In addition to the above, it may be noticed that the disqualification of a juror on the ground, for exam- ple, of bias, interest or preconceived opinion is ground for a new trial. See Rollins v. Ames, 21 N H. 349, 9 Am. Dec. 79; Herbert v. Shaw, 11 Mod. Ill ; Eggleston v. Smiley, 17 Johns. 133 ; United States v. Fries, 3 DalL 515; Hudspeth v. Herston, 64 Ind. 133; Sewell v. State, 15 Tex. App. 56 ; Busick v. State, 19 Ohio, 198 ; Pearcy v. Mich. Mut L. Ins. Co., Ill Ind. 59. A new trial will not be so readily granted for such disqualifi- cations as age, alienage and property. Brewer v. Jacobs, 22 Fed. Rep. 234. And if the party knew of the dis- qualification and made no seasonable objection, the motion will be denied. Bronson v. People, 82 Mich. 34 ; Fox v. Hazelton, 10 Pick. 275 ; Davis v. Allen, 11 id. 466, 22 Am. Dec. 886 ; Quinebaug Bank v. Leavens, 20 Conn. 87, 50 Am. Dec. 272 ; Brown v. Autrey, 78 Ga. 753; Parmele v. Guthery, 2 Root, 185, 1 Am. Dec. 65 ; Ipswitch v. Fernandez, 84 Cal. 639 ; Buck v. Hughes, 127 Ind. 46. See Jewell v. Jewell, 84 Me. 804, 19 L. R A. 473, and note by Mr. A. P. Will. Misconduct of a party by com- munication with a juror, treating, or any action which satisfies the court that the party is working upon the jury, will be ground for new trial. Martin v. Morelock, 32 111. 485 ; Lyons v. Lawrence, 12 Brad. 531 ; Knight v. Freeport, 13 Mass. 218 ; Walker v. chanan, 76 Ga. 585 ; Hall v. Lyons, 29 W. Va. 410; Morgan v. Bell, 41 Kan. 345. It must be evidence that could not have been obtained before the trial. Baker v. Jamison, 73 Iowa, 698; Beachley v. McCormick, 41 Kan. 485; Feads \*. Albea, 69 Tex. 437, 5 Am. St. R 79 ; Booth v. Mc- Jilton, 82 Va. 827; Ward v. Voris, 117 Ind. 368; Patterson v. Collier, 77 Ga 292. Cumulative evidence is in- sufficient ground for a new trial. Brinson v. Faircloth, 82 Ga. 185 ; Gil- more v. Brost, 39 Minn. 190 ; Brooks v. Dutcher, 22 Neb. 644; Smith v. Watson, 82 Va. 712 ; Fuller v. Har- ris, 29 Fed. Rep. 814; Mowry v. Raabe, 89 Cal. 606 ; Plumb v. Camp- bell, 129 111. 101 ; Donnelly v. Burkett, 75 Iowa, 613 ; Chandler v. Thompson, 80 Fed. Rep. 38 ; Thrasher v. Postel, 79 Wis. 503. Newly-discovered evi- dence for the purpose of impeaching a witness is insufficient to justify a new trial. State v. Burt, 41 La. Ann. 787, 6 L. R. A. 79. 1 Sutherland on Damages ; Com. v. Justices, 5 Mass. 435; Beveridge v. Welch, 7 Wis. 467; Chicago W. D. R Co. v. Hughes, 87 111. 94 ; Ray v. Thompson, 26 Mo. App. 431 ; Lake E. etc, Ry. v. Acres, 108 Ind. 548. zirwin v. Miller, 23 111. 401; 111. Cent R Co. v. Swearingen, 47 id. 206 ; Hay ward v. Knapp, 22 Minn. 5 ; Tripp v. Com'rs, 2 Allen (Mass.), 556 ; Peoria & R L R Co. v. Birkett, 62 111. 332 : Jeffries v. Randall, 14 Mass. 205. 230 CAUSES AND FORMS OF ACTION. [ 127. the cause comes on to be tried de novo. But, except on such grounds as these, tending manifestly to show that the discre- tion of the jury has not been legally or properly exercised, a new trial can never be obtained ; for it is a great principle of law that the decision of a jury, upon an issue in fact, is in gen- eral irreversible and conclusive, (c) l 2. Arrest of judgment: Again, the unsuccessful party may move in arrest of judgment; that is, that the judgment for the plaintiff be arrested or withheld on the ground that there is some error appearing on the face of the record which vitiates the proceedings. In consequence of such error, on whatever part of the record it may arise, from the commencement of the suit to this period, the court are bound to arrest the judg- ment. It is, however, only with respect to objections apparent on the record that such motions can be made. Nor can it be made, generally speaking, in respect of formal objections. This was formerly otherwise, and judgments were constantly arrested for errors of mere form ; (d) but this abuse has been long remedied by certain statutes, passed at different periods, to correct inconveniences of this kind and commonly called the statutes of amendment and jeofails, (e) by the effect of which, judgment, at the present day, cannot, in general, be ar- rested for any objection of form.* (c) See Appendix, note (33). (d) See 2 Reeves, 448; 3 BL Com. 407. (e) See Appendix, note (33). Walker, 11 Ga. 203; Bradbury v. * This paragraph is cited in Puter- Cony, 62 Me. 223; Hamilton v. Pease, baugh's III Pr. & PL 811, where are 88 Conn. 115; Tomlin v. Cox,. 19 N. cited many cases illustrating arrest J. L. 76; Cilley v. Bartlett, 19 N. EL of judgment Commercial Ins. Co. 312. See Hutchinson v. Consumers' v. Bank, 61 III 483 ; Creswell v. Pack- Coal Co., 36 N. J. L. 24 Any attempt ham, 6 Taunt 630 ; Quincy Coal Co. v. to influence testimony or trial by Hood, 77 111. 68 ; Campton v. People, improper means suffices. Chicago 86 id. 176 ; Com. v. Hinds, 101 Mass. City Ry. v. McMahon, 103 III 485. 209 ; African M. E. Ch. v. McGruder, 1 As we have seen, this is now true 73 III 516 ; Matson v. Swanson, 131 only in a qualified sense. If the ver- id. 255 ; Am. Ex, Co. v. Pinckney, 29 diet is not supported by the evidence, id. 392 ; Ind. Order v. Paine, 122 id. or if it is clearly the result of preju- 625. The codes do not change the dice or passion, the verdict may be law, but the scope of the remedy ia set aside. Tripp v. Grounder, 60 III much modified by statutes. People 474; Gibson v. Webster, 44 id. 483; v. Swenson, 49 Cal. 388 ; State v. Ray- Loewenthal v. Strong, 90 id. 74 mond, 20 I^wa, 582 ; McGuire v. State, 127.] PROCEEDINGS IN AN ACTION. 231 3. Judgment non obstante veredicto: l If the verdict be for the defendant, the plaintiff, in some cases, moves for judgment non obstante veredicto; that is, that judgment be given in his own favor without regard to tlie verdict obtained by the defendant. This motion is made in cases where, after a pleading by the defendant in confession and avoidance, as, for example, a plea in bar, and issue joined thereon, and verdict found for the de- fendant, the plaintiff, on retrospective examination of the record, conceives that such plea was bad in substance and might have been made the subject of demurrer on that ground. If the plea was itself substantially bad in law, of course the verdict, which merely shows it to be true in point of fact, cannot avail to entitle the defendant to judgment ; while, on the other hand, the plea, being in confession and avoidance, involves a confession of the plaintiff's declaration and shows that he was entitled to maintain his action. *In such case, therefore, the court will give judgment for the plaintiff with- out regard to the verdict; and this, for the reason above ex- plained, is also called a judgment as upon confession, (f) Sometimes it may be expedient for the plaintiff to move for judgment non obstante, etc., even though the verdict be in his own favor; for, if in such a case as above described, he takes judgment as upon the verdict^ it seems that such judgment would be erroneous, and that the only safe course is to take it as upon confession, (g) * 4:. TJie motion for a repleader is made where the unsuccess- ful party, on examination of the pleading, conceives that the issue joined was an immaterial issue, i. 0., not taken on a point proper to decide the action. It has been shown (A) that the (/) Lacy v. Reynolds, Cro. Eliz. 214; Staple v. Heydon, 6 Mod. 10; The King v. Phillips, Stra. 394; Potts v. Polehampton, 1 Lord Raym. 641; Clears v. Stevens, 8 Taunt. 413; * and see the forms of such judgments. Rast. Ent. 622; 2 RoL Ab. 99; Jones v. Bodinner, Carth. 372; Wilkes v. Broadbent, 1 Wils. 63. (g) Wilkes v. Broadbent, 1 Wils. 63; Dighton v. Bartholomew, Cro. Eliz. 778; 2 RoL Ab. 99. (h) Vide supra, 106 et seq. 47 Md. 485; Gray v. People, 21 Hun, 1 See Reg. v. Governor, 6 Ad. & EL 140. Probably the most instructive 703. 51 E. C. L. case in arrest of judgment, aider by 2 1 Chitty, PI. 656; Hitchcock v. verdict, and the regard that is to be Haight, 2 Gilm. 604; Rothchilds v. had to the substance rather than the Bruschke, 131 111. 265; Buckley v. form, is Bayard v. Malcolm, 2 Johns. Duff, 111 Pa. St. 223; Adams v. Mun- 550. 3 Am. Dec. 450. ten, 74 Ala. 338. Cited Tarns v. Lewis, 42 Pa. St. 412. 232 CAUSES AND FOKMS OF ACTION. [ 127. issue joined is always some question raised between the parties and mutually referred by them to judicial decision; but that point may nevertheless, on examination, be found not proper to decide the action. For either of the parties may, from mis- apprehension of law or oversight, have passed over, without demurrer, a statement on the other side, insufficient and im- material in law; and an issue in fact may have been ultimately joined on such immaterial statement; and so the issue will be immaterial, though the parties have made it the point in con- troversy between them. For example, if in an action of debt on bond, conditioned for the payment of ten pounds ten shill- ings at a certain day, the defendant pleads payment of ten pounds, according to the form of. the condition, and the plaintiff, instead of demurring, tenders issue upon such pay- ment, it is plain that, whether this issue be found for the plaintiff or tfie defendant, it will remain equally uncertain whether the plaintiff is entitled or not to maintain his action; for, in an action for the penalty of a bond conditioned to pay a certain sum, the only material question is whether the exact sum were paid or not, and a payment in part is a question quite beside the legal merits, (i) In such cases, therefore, the court, not knowing for whom to give judgment, will award a repleader, that is, will order the parties to plead de novo, for the purpose of obtaining a better issue. (K) * (f) Kent v. Hall, Hob. 113; and see another instance, Plomer v. Boss, 5 Taunt. 886. (fc)2 Saund. 319 b, n. 6; Bac. Ab., Pleas, etc., M.; Com. Dig., Pleader, R. 18. See ex- amples of cases in which a repleader has been awarded or refused. Anon., 2 Vent. 196; Enys r. Mohun, 2 Str. 847; Plomer v. Ross, 5 Taunt. 386; Clears v. Stevens, 8 Taunt. 413; and the form of entering an award of repleader on record, Co. Ent 677, 42, 151; Jefferson v. Morton, 2 Saund. 20. 1 Mr. Chitty in his first edition says common law a repleader was allowed that the principal quality of an issue before trial because the verdict did is that it must be upon a material not cure an immaterial issue. But point An informal issue is when a since the statute of jeofaila a re- material allegation is traversed in an pleader ought not to be awarded till improper or artificial manner. This after verdict, because the error could (an informal issue) and other preced- be avoided by amendment (2) De- ing mistakes can be aided by verdict nial of repleader or erroneously under 32 Hen., ch. 30. But a verdict granting it was ground for error, does not help an immaterial issue. (3) Judgment was that the parties 1 Chitty, PI. (1st ed.) 631. In Staples begin at the first fault (quod paries v. Hayden, 2 Salk. 579, five rules as replacitenf). 1 Ld. Raymond, 169. to repleader were laid down : (1) At (4) No costs to be awarded either 128.] PROCEEDINGS IN AN ACTION. 233 5. A venire facias de novo, that is, a new writ of venire facias, will be awarded when, by reason of some irregularity or defect in the proceedings on the first venire or the trial, the proper effect of that writ has been frustrated or the verdict become void in law; as, for example, where the jury has been improperly chosen, or given an uncertain or ambiguous or defective verdict. The consequence and object of a new venire are of course to obtain a new trial; and, accordingly, this pro- ceeding is in substance the same with a motion for a new trial. Where, however, the unsuccessful party objects to the verdict, in respect of some irregularity or error in the practical course of proceeding rather than on the merits, the form of the appli- cation is a motion for a venire de novo, and not for a new trial. 1 128. Other modes of trial. The proceedings relative to trial by jury having been now considered, (I) the other modes of trial) which (as has been already observed) (m) are of rare and limited application, may be dismissed in few words. The trial by the grand assise is very similar to the common trial by jury. There is only one case in which it appears ever to have been applied, and there it is still in force. In a writ of right, if the defendant, by a particular form of plea appro- priate to that purpose, (n) denied the right of the demandant as claimed, he had the option, till the recent abolition of the extravagant and barbarous method of the wager of battel, (o) of either offering battel or putting himself on the grand assise to try whether he or the demandant had " the greater right." The latter course he may still take; and, if he does, the court awards a writ for summoning four knights to make election (I) See Appendix, note (34). (m) Supra, p. 215. (n) See the plea, 3 Chitty, 652. (o) By Stat. 59 Geo. in., ch. 46. party. (5) A repleader cannot be The rules above stated bring out awarded after default, or generally the important point, viz. : The effect after demurrer or writ of error, nor of the statute of amendments, and when the court may give judgment accounts for the fact that a repleader Willes, 532. See Stafford v. Mayor of is seldom required in modern practice Albany, 6 Johns. 1 ; Magouen v. Lap- when amendments are made in form ham, 19 Pick. 419. It may be or substance before or after verdict awarded after argument of demur- J Union Bank v. Manistee Co., 43 rer. Potter v. Titcomb, 7 Greenl. 302. 111. App. 525. CAUSES AND FORMS OF ACTION. [ 128. of twenty other recognitors. These knights and twelve of the recognitors so elected, together making a jury of sixteen, con- stitute what is called the grand assise; and when assembled they proceed to try the issue or (as it is called in this case) the mise upon the question of right. The trial, as in the case of a common jury, may be either at bar or nisiprius; and if at nisi prius, a nisiprius record is made up; and the proceed- ings are in either case, in general, the same as above explained with respect to a common jury, (p) pon the issue or mise of right, the wager of battel, or the grand assise, was, till the abolition of the former, and the latter still is, the only legitimate method of trial ; and the question cannot be tried by a jury in the common form, (g) The trial ly the record applies to cases where an issue of nul tiel record is joined in any action. If a record be asserted on one side to exist, and the opposite party deny its existence, under the form of traverse that there is no such record remain- ing in court as alleged, and issue be joined thereon, this is called an issue of nul tiel record; and the court awards in such case a trial by inspection and examination of the record, (r) Upon this, the party affirming its existence is bound to pro- duce it in court on a day given for the purpose; and if he fail to do so judgment is given for his adversary. The trial by record is not only in use when an issue of this kind happens to arise for decision, but it is the only legitimate mode of trying such issue, and the parties cannot put themselves upon the country. 1 The trial by certificate is now of very rare occurrence, but is still in force upon certain issues, (s) of which the principal and most important is the issue of ne unques accouple en loial matrimonie. This arises in the action of dower, in which the tenant may plead in bar that the demandant " was never ac- coupled to her alleged husband in lawful matrimony" Issue being joined upon this, the court awards that it be tried by (p) See Tyssen v. Clarke, 8 Wils. 419, 641; Hardman v. Clegg, 1 Holt, N. P. R. 657; 8 Chitty, 635; 2 Saund. 45 e; 1 Arch. 402, for full information on the subject of trial by the grand assise. (9) Galton y. Harvey, 1 Bos. & Pul. 192. See Appendix, note (85). (.r) See the form of the issue, 2 Chitty, 603. GO The kinds of issue on which this trial may occur are enumerated, 8 BL Com. 83SL i See 3 Cooley's Black. (4th ed.) 331. 123.] PROCEEDINGS IN AN ACTION. 235 the diocesan of the place where the parish church in which marriage is alleged to have been had is situate, and that the result be certified to them by the ordinary at a given day. (t) It is said that this is a form of issue which can arise only in dower, (u) The trial by certificate is, when competent, the only legitimate mode, and the issue cannot be tried by jury. The trial by witnesses and that by inspection are in very few instances legally competent, and are not now known in prac- tice. 1 It seems, however, that the former is still applicable (as anciently) to an issue arising on the death of the husband in an action of dower, (x) and in some other cases ; and that the proof by inspection is also, in some instances, still admis- sible; for example, if in any action, upon a plea of parol de- murrer, issue be taken on the non-age, (y) In case of trial by witnesses, the court, upon issue joined, awards that both par- ties produce in court, at a given day, their respective wit- nesses; on trial by inspection, that the subject to be inspected be brought into court; for example, that the guardian of the infant bring him into court on a certain day to be viewed, (z) In either case the judges examine and decide, and the judg- ment is pronounced accordingly. It is to be observed, how- ever, with respect to trial by inspection, that, even when com- petent, it seems to be not a mode so exclusively appropriate but that the parties may, by consent, refer the questions to a jury ; (a) and both with respect to this trial and that by wit- nesses it is laid down that if after the evidence the judges are still unable to satisfy themselves on the fact, they have, in general, a discretion then to send the parties to the country, (b} The trial by wager of law has also fallen into complete dis- use, but in point of law it seems to be still competent in most of the cases to which it anciently applied. The most impor- tant and best established of these cases is the issue of nil debet, (f) See the form of the Issue, 3 Chitty, 599; Co. Ent. 181, a. (u) Bac. Ab., Bastardy, 516, cites 11 Hen. 4, 78. (a;) Abbot of Strata Mersella's Case, 9 Rep. 30, b; Faux v. Barnes, Lord Raym. 174. (y) Vin. Ab., Trial (B. 2), 10, cites 29 Ass. 37; 19 E. 2. (z) Vin. Ab., Trial (C.). (a) Bac. Ab., tit. Infancy, L. 10, p. 634 (5th ed.). (6) Vin. Ab., Trial, C. 9, 10; Bac. Ab., Trial, A. 2, 3; 8 Bl. Com. 333. 1 See 3 Cooley's Black. (3d ed.) 336, mitting issues to the judge for trial note 2. The modern practice of sub- is upon the same principle. 236 CAUSES AND FOKMS OF ACTION. [ 129. arising in an action of debt on simple contract, or the issue of non detinet in an action of detinue. In the declaration in these actions, as in almost all others, the plaintiff concludes by offer- ing his suit (of which the ancient meaning was followers or witnesses, though the words are now retained as a mere form), to prove the truth of his claim. On the other hand, if the de- fendant, by a plea of nil debet or non detinet, deny the debt or detention, he may conclude by offering to establish the truth of such plea " against the plaintiff and his suit in such manner as the court shall direct" Upon this the court awards the wager of law; (c) and the form of this proceeding when so awarded is, that the defendant brings into court with him eleven of his neighbors, and for himself makes oath that he does not owe the debt or detain the property as alleged ; and then the eleven also swear that they believe him to speak the truth; and the defendant is then entitled to judgment, (d) It is to be observed with respect to this mode of trial, that though the defendant has thus the power of resorting to it, he is not obliged to do so. He is at liberty, if he pleases, to put himself upon the country; the trial by jury being a mode of decision always applicable to the same questions on which law may be waged, and the mode, in fact, always applied to them in the modern practice, (e) 129. The judgment. It has now been shown in what manner the issue, whether in law or fact, is decided. It has been explained, too, by what means the unsuccessful party may, upon an issue in fact, avoid in some cases, by motion in court the effect of the decision. Supposing, however, that such means are not adopted, or do not succeed, or that the issue be an issue in law, the next step is the judgment. As the issue is the question which the parties themselves have, by their pleading, mutually selected for decision, they are in general considered as having mutually put the fate of the cause upon that question; and as soon, therefore, as the issue is decided in favor of one of them, that party in general becomes victor in the suit ; and nothing remains but to award the judicial consequence which the law attaches to such suo (c) See the form of such Issue and award of trial, Co. Eut. 119 a; L1L Ent. 467; 3 Chitty, 479. (0) 8 Bl. Com. 343. See Appendix, note (36). (e) See Appendix, note (37). 129.] PROCEEDINGS IN AX ACTION. 237 cess. The award of this judicial consequence is called the judg- ment, and is the province of the judges of the court. 1 The nature of the judgment varies according to the nature of the action, the plea, the issue, and the manner and result of the decision. It shall be first supposed that the issue is decided for the plaintiff. In this case, if it be an issue in law arising on a dilatory plea, the judgment is only that the defendant answer over, (f) which is called a judgment of respondeat ouster? The plead- ing is accordingly resumed, and the action proceeds. This judgment, therefore, does not fall within the definition of the term just given, but is of an anomalous kind. Upon all other issues in law, and, in general, all issues in fact, the judgment is that the plaintiff do recover, (g) which is called a judgment quod recuperet. 3 The nature of such judgment, more particularly considered, is as follows : It is of two kinds : interlocutory, and final. If the action sound in damages (according to the technical phrase), that is, be brought not for specific recovery of lands, goods or sums of money (as is the case in real and mixed actions, or the personal action of debt and detinue), but for damages only, as in covenant, trespass, etc., and if the issue be an issue in law, or any issue in fact not tried ly jury, then the judgment is only that the plaintiff ought to recover his damages, without specifying their amount ; 4 for, as there has been no trial by jury in the case, the amount of damages is not yet ascertained. The judgment is then said to be inter- locutory. On such interlocutory judgment the court does not, in general, itself undertake the office of assessing the dam- (/) Bac. Ab., Pleas, etc., N. 4; 2 Arch. Pract. 3. (0) Com. Dig., Abatement, L 14, L 15; 2 Arch. Pract. 8. 1 Thompson v. People, 23 Wend. 587. the reporter. Rice v. Shute, 2 Burr. 2 Bradshaw v. Morehouse, 1 Gilm. 261, 1 Sin. Ld. Cas. 1405. On issue 395; Young v. Gilles, 113 Mass. 34; joined on plea in abatement in ao Parks v. Smith, 155 id. 26. If he does tion for a debt (sum certain) or for a not plead over, judgment goes against specific thing, the judgment is final, him by default Bradshaw v. More- Steele v. G. T. Ry. Co., 20 III App. 366; house, supra. Metzger v. Huntington, 51 11L App. s Greer v. Young, 120 111. 184. See 377. Myers v. Erwin, 20 Ohio, 381, to 4 Steele v. G. T. Ry. Co., 20 111. App. which is added a valuable note by 366; Myers v. Erwin, 20 Ohio, 380. 238 CAUSES AND FORMS OF ACTION. [ 129. ages, but issues a writ of inquiry, directed to the sheriff of the county where the facts are alleged by the pleading to have occurred, commanding him to inquire into the amount of the damage sustained, " by the oath of twelve good and lawful men of his county," and to return such inquisition, when made, to the court. Upon the return of the inquisition, the plaintiff is entitled to another judgment, viz., that he recover the amount of the damages so assessed; and this is called final judgment, (h) But if the issue be in fact, and was tried In/ a jury, then the jury, at the same time that they tried the issue, assessed the damages. (*) ! In this case, therefore, n writ of inquiry is necessary; and the judgment is final in the first instance, and to the same effect as just mentioned, viz., that the plaintiff do recover the damages assessed. Again, if the action do not sound in damages, the judgment is in this case also (in general), in the first instance, final ; and to this effect, that the plaintiff recover seisin of the land, etc., or recover the debt, etc. But there is, besides this, in mixed actions, a judgment for damages also ; and this is either given at the same time with that for recovery of seisin, if the damages have been assessed by a jury, or, if not so assessed, a writ of in- quiry issues, and a second judgment is given for the amount found by the inquisition. (&) The issue shall next be supposed to be decided for the de- fendant. In this case, if the issue, whether of fact or law, arise on a dilatory plea, the judgment is that the writ (or Mil) le quashed, quod fireve (or billa) cassetur, upon such pleas as are in abate- ment of the writ or bill, and that the pleading remain with- out day until, etc., (Z) 2 upon such pleas as are in suspension only ; the effect, in the first case, of course, being that the suit is defeated, but with liberty to the plaintiff to prosecute a better writ or bill ; in the second, that the suit is suspended (h) As to the proceedings on a writ of inquiry, see 2 Arch. Prac. 19. CO Vide supra, p. 218. (fc) 2Saund. 44, n. 4; Booth, 19, 74, 76, 76. (I) 8 Rep. 69; Reg. PL 180; 1 Chitty, 458; 2 Arch. Prac. 8. iGoggin v. O'Donnell, 62 111. 66; way Co., 89 Tenn. 804; Myers v. Boggs v. Bindskoff, 23 111. 66; Chase Erwin, 20 Ohio, 382, note. v. Doming, 42 N. H. 274; Young v. ^Spaulding v. Lowe, 58 III 96. Gilles, 113. Mass. 34; Simpson v. Rail- 129.] PROCEEDINGS IN AN ACTION. 239 until the objection be removed. If the issue arise upon a declaration or peremptory plea, the judgment is, in general, that the plaintiff take nothing by Ms writ (or bill), and that the defendant go thereof without day, etc., which is called a judg- ment of nil capiat per breve, or per billam. What has been said as to the different forms of judgment relates to those on direct issues. Upon an issue of the collat- eral or incidental kind (ra) (which is a case that does not occur in modern practice), the judgment is sometimes respondeat ouster; in other cases, quod recuperet; but the law with re- spect to the judgment on issues of this kind does not seem to be, in every instance, clearly settled, (n) Judgment has hitherto been supposed to be awarded only upon the decision of an issue. There are several cases, how- ever, in which judgment may be given, though no issue have arisen; and these cases will now require notice. In the de- scription given in this chapter of the manner of suit, it will be observed that the action has been uniformly supposed to proceed to issue' and this has been done to prevent digression and complexity. But an action may be cut off in its progress, and come to premature termination, by the fault of one of the parties in failing to pursue his litigation ; and this may happen either with the intention of abandoning the claim or defense, or from failing to follow them up, within the periods which the practice of the court, in each particular case, pre- scribes. In such cases the opposite party becomes victor in the suit, as well as where an issue has been joined and is de- cided in his favor; and is at once entitled to judgment. Thus, in a real (though not in a personal) action, if the defendant holds out against the process, judgment may be given against him for default of appearance, (o) So, in actions real, mixed, or personal, if, after appearance, he neither pleads nor demurs; or if, after plea, he fails to maintain his pleading till issue joined, by rejoinder, rebutter, etc., judgment will be given against him for want of plea; which is called judgment by nil dicit. 1 So if, instead of a plea, his attorney says he is (m) Vide supra, p. 209. (n) Co. Ent. 319; Com. Dig., Voucher (B. 2); 2 Saund. 44, n. 4; Bac. Ab., Pleas, etc., N. 4 (o) Booth, 19, 73; Com. Dig., Pleader (Y. 1); 2 Saund. 45, n. 4. 1 Kansas City Ry. Co. v. Saunders, 98 Ala. 283; Aurora v. West, 7 Wall 83. CAUSES AND FORMS OF ACTION. [ 129. not informed of any answer to be given to the action, judg- ment will be given against him; and it is in that case called a judgment by non sum informatus. Again instead of a plea, he may choose to confess the action ; or, after pleading, he may, at any time before trial, both confess the action and withdraw his plea or other allegations; and the judgment against him, in these two cases, is called a judgment by con- fession, or by confession relicta verificatione.^ On the other hand, judgment may be given against the plaintiff \ in any class of actions, for not declaring, or replying, or surrejoining, etc., or for not entering the issue ; and these are called judg- ments of non pros, (from non prosequitur). 1 So, if he chooses, at any stage of the action, after appearance and before judg- ment, to say that he " will not farther prosecute his suit," or, that he " withdraws his suit," or (in case of plea in abatement) prays that his " writ " or " bill " " may be quashed, that he may sue or exhibit a better one," there is judgment against him of nolle prosequi, retraxit, or cassetur breve, or billa, in these cases respectively. Again, judgment of non- suit may pass against the plaintiff, which happens when on trial by jury the plaintiff, on being called or demanded at the instance of the defendant to be present in court while the jury give their verdict, fails to make his appearance. In this case no verdict is given; but judgment of nonsuit passes against the plaintiff. So if, after issue is joined, the plaintiff neglects to bring such issue on to be tried in due time, as limited by the course and practice of the court in the particu- lar case, judgment will also be given against him for this de- fault ; and it is called judgment as in case of nonsuit. 2 These judgments by default, confession, etc., when given for the plaintiff", are generally quod recuperetj and may be either interlocutory or fin al, according to a distinction already explained. For the defendant the form generally is nil ca- piat? 1 See 3 Cooley's Black. (4th ed) 296. awarded. The demurrer or default 2 See p. 384. note 1. only confesses that the plaintiff has 8 State v. Peck, 60 Ma 498, Ames' a cause of action for some amount. Cases, 19. Judgments by default or C. & R. L Ry. Co. v. Ward, 16 III 522. nil dicit at law are interlocutory in But on the inquiry of damages the all cases when damages are to be defendant may introduce evidence 120.] PROCEEDINGS IN AN ACTION. 241 Upon judgment in most personal and mixed actions, whether npon issue or by default, confession, etc., it will be observed that it forms part of the adjudication that the plaintiff or de- fendant recover his costs of suit or defense ; which costs are taxed by an officer of the court at the time when the judg- ment is given. There is generally an addition, too when the judgment is for the plaintiff, that the defendant " be in mercy" (in mis- ericordia)', that is, be amerced or fined for his delay of jus- tice; when for the defendant, that the plaintiff be in mercy for his false claim, (p) The practice, however, of imposing any actual amercement has been long quite obsolete. Judgments (like the pleadings) were formerly pronounced in open court; and are still always supposed to be so. But, by a relaxation of practice, there is now in general, except in the case of an issue in law, no actual delivery of judgment, either in court or elsewhere. The plaintiff or defendant, when the cause is in such a state that, by the course of practice, he is entitled to judgment, obtains the signature or allowance of the proper officer of the court, expressing, generally, that judgment is given in his favor; and this is called signing judg- ment, and stands in the place of its actual delivery by the . judges themselves, (g) Regularly the next proceeding is to enter the judgment on record. "Where it has been signed after trial or demurrer, it will be remembered that the proceedings up to the time of issue and the award of venire, or the continuance by curia advisari vult, have already been recorded, (r) It will remain, (p) As to this amercement, see Griesley's Case, 8 Rep. 39, 59. ( q ) " The signing of the judgment is but the leave of the master of the office for tha attorney to enter the judgment for his client" Styles, Pract. Reg., tit. Judgment. On judgments by nil dicit, in the king's bench and common pleas, the way of signing judg- ment is to make an incipitur of the declaration on stamped paper, and get it signed by the clerk of the judgments in the king's bench; and in the common pleas, at the prothono- taries' office. 2 Arch. Pract., p. 10; Impey, 0. P. 453. On judgments after verdict in the king's bench, the master signs the posted in taxing costs; and this is the signing of judg- ment. 1 Manning's Exchequer, 352, note (o). (r) But see supra, p. 212. note y, as to the actual practice with respect to issues in fact in most cases of making an incipitur only. as to damages. Bridges v. Stephens, adopted from the common law. 10 Brad. 369; Briggs v. Snegham. 45 Thompson v. Worster, 114 U. S. 109; Ind. 14; Madison Co. v. Smith, 95 111. Cains v. Fisher, 1 Johns. Ch. 8. 328. Defaults in chancery were 242 CAUSES AND FORMS OF ACTION. [ 129. however, to enter the subsequent proceedings to the judgment inclusive, which is called entering the judgment. This is done by drawing them up with continuances, etc., on the same roll on which the issue was entered by way of continuation or farther narrative of the proceedings there already recorded ; and the judgment is entered in such form as the attorney for the successful party conceives to be legally appropriate to the particular case, supposing that it were actually pronounced by the court. The roll when complete by the entry of final judgment is no longer called the issue roll, but has the name of the judgment roll, (s) and is deposited and filed of record in the treasury of the court. It is believed, however, that this whole proceeding of entering the judgment on record is in practice usually neglected. Yet there are several cases in which, by the practice of the court, it becomes essential after final judgment to do so, and in which it is therefore actually done, (t) "When judgment is signed, not after trial or demurrer, but as by default, confession, etc., there having been no issue roll yet made up, the whole proceedings to the judgment inclu- sive are to be entered for the first time on record. This is accordingly done by the attorney upon a parchment roll, and upon the same principles as to the form of entry that have been already stated with respect to recording the issue and judgment thereon, (u) Of the form of entry after judgment upon issues both in law and fact, and also after judgment by default, the follow- ing are examples : ENTRY OF JUDGMENT. For the Defendant. Upon the issue in law, supra, p. 213. \After the entry of the issue, as in p. 213, the proceedings a/r* to be continued on the roll, as follows:] At which day, before our said lord the king, at Westminster, come the parties aforesaid, by their respective attorneys afore- () 2 Arch. Pract. 306. (t) See these cases enumerated, 2 Arch. Pract. 206. (u) However, instead of pursuing this, the strict and regular course, the usual practice is ouly to enter an incipitur ou the roll, as in the case of entering an issue in fact. Vide upra t p. 212. and note y; 1 Sel. Pract. 342; 2 Arch. Pract. 10. 129.] PROCEEDINGS IN AN ACTION. 24:3 said. Whereupon, all and singular the premises being seen, by the court of our said lord the king now here fully under- stood, and mature deliberation being thereupon had, it appears to the said court here, that the replication aforesaid and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient, in law, for the said A. B. to have or maintain his aforesaid action against the said 0. D. Therefore it is considered that the said A. B. take nothing by his said writ, but that he, and his pledges to prosecute, be in mercy, (x) and that the said C. D. do go thereof without day, etc. And it is further considered by his majesty's court here, that the said C. D. do recover against the said A. B. pounds, for his costs and charges by him laid out about his defense in this behalf, by the court of our said lord the king now here, adjudged to the said C. D., and with his assent, according to the form of the statute in such case made and provided ; and that the said C. D. have execu- tion thereof, etc. (y) ENTRY OF JUDGMENT. For the Plaintiff. Upon the issue in fact, supra, p. 214. after trial by jury in London. [After the entry of the issue as in p. 214, the proceedings a/re to l>e continued on the roll as follows:'] Afterwards the process thereof is continued between the parties aforesaid of the plea aforesaid, by the jury being res- pited between them, before our said lord the king at West- minster, until , wheresoever our said lord the king shall then be in England, unless the Right Honorable Sir Charles Abbott, knight, his majesty's chief justice, assigned to hold pleas in the court of our said lord the king, before the king himself, shall first come on , the day of , at the guildhall of the city of London, according to the form of the statute in such case made and provided, by reason of the de- fault of the jurors, because none of them did appear. (0) At which day, before our said lord the king at Westminster afore- said, come the said parties aforesaid, by their attorneys afore- said. And the said chief justice, before whom the said issue was tried, hath sent hither his record had before him, in these words, to wit : (a) Afterwards, that is to say, on the day and at the place within contained, before the Right Honorable Sir Charles Abbott, the chief justice within mentioned (etc., as (x) Vide supra as to mercy, p. 341. (y) Tidd's Appendix, ch. xxxix. (z) This commencement of the entry refers to the award of the distringas; as to which eee supra, p. 216. (a) This is a transcript of the postea from the back of the nisi print record. A* to the posted, vide supra, p. 221. 244 CAUSES AND FORMS OF ACTION. [ 129. in the posted, supra, p. 221, to the words "forty shillings"}. Therefore it is considered that the said A. B. do recover against the said C. D. the damages, costs and charges by the said jury in form aforesaid assessed, and also pounds for his costs and charges, by the court of our said lord the king now here adjudged of increase to the said A. B., and with his assent; which said damages, costs and charges, in the whole, amount to pounds. And the said C. D. in mercy, etc. (5) ENTRY OF JUDGMENT. For the Plaintiff, on Nil Dicit. Upon the declaration in covenant, supra, p. 158. As yet of Term, in the year of the reign of King George the Fourth. "Witness, Sir Charles Ab- bott, Knight. to wit, A. B. puts in his place E. F., his attorney, against C. D., in a plea of breach of covenant. to wit, C. D. puts in his place G. H., his attorney, at the suit of the said A. B., in the plea aforesaid. to wit, C. D. was summoned to answer (etc., as in the declaration, supra, p. 158). And the said C. D., by , his attorney, comes and defends the wrong and injury when, etc., and says nothing in bar or preclusion of the said action of the said A. B. ; whereby the said A. B. remains therein undefended against the said C. D. Wherefore the said A. B. ought to recover against the said C. D. his damages on occasion of the premises. But because it is unknown to the court of our said lord the king, now here, what damages the said A. B. hath sustained by reason of the premises, the sheriffs are commanded (G) that, by the oath of twelve good and lawful men of their bailiwick, they diligently inquire what damages the said A. B. hath sus- tained as well by reason of the premises, as for his costs and charges by him about his suit in this behalf expended ; and that they send the inquisition which they shall thereupon take, to our said lord the king, on , wheresoever our said lord the king shall then be in England, under their seal, and the seals of those by whose oath they shall take that inquisi- tion, together with the writ of our said lord the king to them thereupon directed. The same day Is given to the said A. B., at the same place. At which day, before our said lord the king at Westminster, comes the said A. B., by his attorney aforesaid. And the sheriffs of London, to wit, , esquire, and , esquire, now here, return a certain inquisition indented, taken befdre them at the guildhall of the , (6) Tidd's Appendix, ch. xxxix; 3 Bl. Com., Appendix, No. II.; 5 Went. 52. (<0 This is the award of the writ of inquiry, as to which, vide supra, p. 239. 130.] PROCEEDINGS IN AN ACTION. 245 city of London, in the parish of , in the ward of , in the same city, on the day of , in the year of the reign of our said lord the king, by the oath of twelve good ana lawful men of their bailiwick; by which it is found that the said A. B. hath sustained damages by means of the prem- ises to fifty pounds, over and above his costs and charges, by him about his suit in this behalf expended, and for those costs and charges to forty shillings. Therefore it is considered that the said A. B. do recover against the said C. D. his damages aforesaid, by the said inquisition above found, and also pounds, for his said costs and charges, by the court of our said lord the king now here adjudged, of increase, to the said A. B., and with his assent ; which said damages, costs and charges, in the whole, amount to pounds. And the said C. D. in mercy, etc. (d) The course of the action, till the entry on record of the final judgment, has now been described ; but the reader will not have a complete view of the history of a suit without taking some notice of two other subsequent proceedings. These are, the writ of execution and the writ of error. 130. Writs of execution. Upon judgment the success- ful party is, in general, entitled to execution, to put in force the sentence that the law has given. For this purpose he sues out a writ, addressed to the sheriff, commanding him, according to the nature of the case, either to give the plaint- iff possession of the lands, or to enforce the delivery of the chattel which was the subject of the action, or to levy for plaintiff the debt or damages, and costs recovered ; or to levy for the defendant his costs ; and that either upon the body of the opposite party, his lands or goods, or, in some cases, upon his body, lands and goods ; the extent and manner of the execution directed always depending upon the nature of the judgment, (e) Like the judgment, writs of execution are sup- posed to be actually awarded by the judges in court; but no such award is in general actually made. The attorney, after signing final judgment, sues out of the proper office a writ of execution, in the form to which he conceives he would be en- titled, upon such judgment as he has entered, if such entry has been actually made, and if not made, then upon such as he thinks he is entitled to enter; and he does this (of course) upon (d) Tidd's Appendix, ch. xxxix; 1 Went., p. 244. (e) For further information on this subject, see 3 BL Com. 413. 246 CAUSES AND FORMS OF ACTION. [ 131. peril that, if he takes a wrong execution, the proceeding will be illegal and void, and the opposite party entitled to redress. 131. Writs of error. After final judgment is signed the unsuccessful party may bring a writ of error; l and this, if ob- tained and allowed before execution, suspends the latter pro- ceeding till the former is determined, (f) A writ of error, like an original writ, is sued out of chancery, directed to the judges of the court in which judgment was given, and com- manding them, in some cases, themselves to examine the record ; in others to send it to another court of appellate juris- diction to be examined, in order that some alleged error in the proceedings may be corrected. The first form of writ called a writ of error coram nobis [or vobis] (g) is where the alleged error consists of matter of fact; the second called a writ of error, generally where it consists of matter of law} When a writ of error is obtained, the whole proceedings, to final judgment inclusive, are then always actually entered (if this has not before been done) on record ; and the object of the writ of error is to reverse the judgment for some error of. fact or law that is supposed to exist in the proceedings as so recorded.* It will be proper here to explain in what such error may consist. (/) As to the allowance of a writ of error, see 2 Tidd, 1044 (4th ed.). (0) As to these terms, vide 2 Tidd, 1032 (4th ed.). 1 A writ of error was formerly an record upon which a judgment was original writ issuing out of chancery, given in another court, and on such but in modern practice it is a judicial examination to affirm or reverse the writ sued out of the appellate tribu- same according to law. Cohens T. nal, and is an entirely new writ; it Virginia, 6 Wheat 264 It was not does not per se affect the judgment the proper remedy to review the facts, which may be executed while the Generes v. Campbell, 11 Wall 193. writ of error is pending, unless a 2 Writs of error to remove a judg- supersedeas issues to stay proceed- ment to the supreme court of the ings. Suy dam v. Williamson, 20 How. United States are, under act of con- 437 ; Yates v. People, 9 Johns. 896, gress, governed by the principles and 6 Am. Dec. 290, Great Op. by Great usages of common law. Payne v. Judges, 201. It is a writ of right Niles, 20 How. 219. McClay v. Norris, 4 Gilm. 370; 'Richardson's Ex'r v. Jones, 12 Haines v. People, 97 111. 161. A writ Gratt 53 ; Bronson v. Schulton, 104 of error has been defined to be a U. 8. 410; Hillman v. Chester, 12 commission by which the judges of Heisk. 84. Judge Clifford says: "It the court are authorized to examine a is laid down by the best writers on 131.] PROCEEDINGS IN AN ACTION. Where an issue in fact has been decided, there is (as formerly observed) no appeal in the English law from its decision, (A) l except in the way of motion for new trial; and its being wrongly decided is not error in that technical sense to which (h) Supra, p. 228. pleading that nothing not appearing on the record can be considered," and cites this explanation of Stephen. Suydam v. Williamson, 20 How. 437. 1 It is said that, for error in relation to the facts, a writ of error is not the proper remedy. Generes v. Camp- bell, 11 Wall 193; Pennock v. Dia- logue, 2 Pet 1. But this must be taken in a restricted sense. In mod- ern practice the sufficiency of the evi- dence may be reviewed on error by moving for a new trial and preserv- ing exception, thus making the error appear of record by reason of the motion and a bill of exceptions, after which the fault may be corrected on error or appeal. The remedies are optional Harris v. People, 97 EL 161. Upon a motion for new trial and arrest of judgment, the court has the opportunity to correct all errors and renders unnecessary such a remedy as error coram nobis. McKindley v. Buck, 43 111. 488 ; Freeman on Judgt, 94 ; Pickett's Heirs v. Legerwood, 7 Pet 144 ; Life Ass'n of America v. Fassett, 102 III 315. Appeal is a purely statutory pro- ceeding and different from writ of error in that it is not a new proceed- ing, but a continuation of the case from one court to another, and must be taken within a specified time, and in the upper court the whole merits of the case are tried. Moore v. Wait, 1 Binn. 219; Wright v. Guy, 10 & & R 227 ; Wiscart v. Dauchy, 3 Dall. 321 ; Hessing v. Attorney-Gen- eral, 104 111. 292 ; Long v. Hitchcock, 8 Ohio, 274; Bassett v. Daniels, 10 Ohio St 617. The bill of exceptions was author- ized by statute of Edward L, and has for its object to make apparent upon the record, by the certificate of the judge, the facts and incidents of the trial, including evidence, instruction, motion for new trial, remarks of counsel, motions to exclude, and all those acts and incidents not of them- selves a part of the record. 3 Bou- vier's Institutes, 3238; 3 Cooley's Black. (3d ed.) 372; McCandless v. McWha, 8 Harris, 183; Turner v. Turner, 17 Ohio St 449 ; McLaugh- lin v. Walsh, 3 Scam. 185 ; Cureton v. Westfield, 24 S. C. 457; Peck v. Chouteau, 91 Mo. 138; Tozer v. N. Y. C. & H. R Co., 105 N. Y. 659 ; House V.Alexander, 105 Ind. 109; Oppen- heimer v. Barr, 71 la. 525 ; Thomson v. Madison B. & A. Asso., 103 Ind. 279. As to what the bill should show, see Goforth v. State, 22. Tex. App. 405; Wiley v. Logan, 95 N. C. 358; People v. Coughlin, 67 Mich. 467, and note to State v. Hope, 8 L. R A. 608. There is a distinction to be ob- served between the exclusion of proper and the reception of improper evidence. Regarding, exceptions to the exclusion of evidence, see Hath- away v. Tinkham, 148 Mass. 85 ; Plat- ner v. Plainer, 78 N. Y. 90 ; Florida R Co. v. Smith, 88 U. S. 513, and an extended note to Shinners v. Propri- etors of Locks & Canals, 12 L. R A. 554, In actual practice the written bill of exceptions is made up after the trial, but the objections and excep- 248 CAUSES AND FOKMS OF ACTION. [ 131. a* writ of error refers. So if a matter of fact should exist which was not brought into issue, but which, if brought into issue, would have led to a different judgment, the existence of such fact does not, after judgment, amount to error in the proceedings. For example, if the defendant has a release, but does not plead it in bar, its existence cannot, after judgment, on the ground of error or otherwise, in any manner be brought forward. 1 But there are certain facts which affect the validity and regularity of the legal proceeding itself: such as the de- fendant having appeared in the suit while under age by attor- ney and not by guardian; 2 or the plaintiff or defendant having been a married woman when the suit was commenced. Such facts as these, however late discovered and alleged, are errors in fact, and sufficient to reverse the judgment upon writ of error. To such cases, the writ of error coram nobis applies, " because the error in fact is not the error of the judges, and reversing it is not reversing their own judgment." (*) 8 But the most frequent case of error is when, upon the face CO 2 Tidd, 1033; 1 Manning, 490. tions must be made and taken at the time the occurrence excepted to takes place ; one may not lie by and let error occur and then take advan- tage of it Hollensworth v. Koon, 117111.511; Puterbaugh's PL & Pr. 111. & Mich., tit Bill of Exceptions. As to the form and contents of the bill of exceptions, Kline v. Wynne, 10 Ohio St 230 ; Harvey v. Van de Mark, 71 111. 117; Friedland v. Mc- Neil, 33 Mich. 41; Railway Co. v. Stewart, 95 U. S. 279; Ex parte Crane, 5 Pet 197. The bill of exceptions must be signed by a judge of the trial court, but in case of .his death before the time for signing has elapsed, the remedy is different See for law in respective jurisdictions, Ally v. Mc- Cabe, 147 III 410 ; Owens v. Paxton, 106 N. C. 480 ; Galbraith v. Green, 13 & & R. 85; State v. Weiskittle, 61 Md. 48 ; Newton v. Boodee, 54 E. C. L. R. 795 ; Bennett v. Pen. & O. Co., 32 Eng. L. & Eq. 318 ; Leigh v. Arnor, 89 Ark. 123 ; Luifong v. Hendricks, 2 Gratt (Va.) 212. 1 See Richardson's Ex'r v. Jones, 12 Gratt 53. 2 See Higbie v. Comstock, 1 Denio, 652; Meredith v. Sanders, 2 Bibb, 101. 8 Error coram nobis was a writ of error to review the questions in the same court where the error occurred. Hawkins v. Bower, 9 Gill & J. 428 ; Pickett's Heirs v. Legerwood, 7 Pet 144 See New Trial The appropriate use of the writ is to enable a court to correct those errors of its own which precede the rendition of judgment Pickett's Heirs v. Legerwood, 7 Pet 144. This writ says Judge Cooley, is called the writ coram nobis or coram vobis, according as the pro- ceedings are in the king's bench or 131.] PROCEEDINGS IN AN ACTION. 249 of the record, the judges appear to have committed a mistake in law. This may be by having wrongly decided an issue in law brought before them by demurrer; but it may also hap- pen in other ways. As formerly stated, (&) the judgment will, in general, follow success in the issue. It is, however, a prin- ciple necessary to be understood, in order to have a right ap- prehension of the nature of writs of error, that the judges are, in contemplation of law, bound, before in any case they give judgment, to examine the v)hole record; * and then to ad- judge either for the plaintiff or defendant, according to the (k) Supra, pp. 236, 237. common pleas, because the record is stated to remain before us (the king) if in the former, and before you (the judges) if in the latter. Cooley's Black (3d ed.) 406. There is, there- fore, in this country, properly speak- ing, no such thing as a writ of error coram nobis; and in England the writ may be said to be obsolete. Camp v. Bennett, 16 Wend. 48. But though in this country the name of the writ be lost (Smith v. Kingsley, 19 Wend. 620). the *vrit itself is by no means obsolete, though generally it has been superseded by motion. See Freeman on Judgments, 94; McKindley v. Buck, 43 111. 488; Jef- frey v. Fitch, 46 Conn. 601 ; Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29 ; Adler v. State, 35 Ark. 517, 37 Am. Rep. 48.; Dows v. Harper, 6 Ohio, 518, 24 Am. Dec. 270; Beaubien v. Hamilton, 4 111. 213 ; State v. Cal- houn, 50 Kan. 523, 18 L. R. A. 838, n. That this writ will reach errors of fact only, see Hawkins v. Bowie, 9 Gill & J. 428 ; Roughton v. Browne, 53 N. C. 393 ; Dinsmore v. Boyd, 6 Lea, 689. For cases in which the writ has been used, see Latshaw v. McNees, 50 Mo. 381; Wood v. Col- well, 34 Pa. 92; Ex parte Toney, 11 Ma 661 ; Mills v. Alexander, 21 Tex. 154; Giddings v. Steele, 28 id. 732, 91 Am. Dec. 336. Audita querela is a writ to prevent or recall an execution, which has been rarely used either in England or in this country. Unlike coraw nobt's, it may be sustained upon some ground which occurred after the ren- dition of the judgment, which, there- fore, the defendant had no oppor- tunity to plead. 3 Cooley's Black. (3d ed.) 404 ; Thatcher v. Gammon, 12 Mass. 268 ; Steele v. Boyd, 6 Leigh, 547, 29 Am. Dec. 218; Longworth v. Screven, 2 Hill (S. C.), 298, 27 Am. Dec. 381. It is proper and customary to proceed by motion in cases where the party would have been entitled to audita querela. Smock v. Dade, 5 Rand. 639, 16 Am. Dec. 780 ; Stan- iford v. Barry, 1 Aik. 321, 15 Am. Dec. 692, and notes, citing McDon- ald v. Falvey, 18 Wis. 571 ; Dunlap T. Clements. 18 Ala, 778; Gleason v. Peck, 12 Vt 56 ; Bryant v. Johnson, 24 Me. 304; Wetmore v. Law, 34 Barb. 517; Fox v. Witham, 9 Allen, 572 ; Pennsylvania v. Wheeling Bridge Co., 18 How. 421. 1 Suydam v. Williamson, 20 How. 433 ; Bank of United States v. Smith, 11 Wheat 171 ; Curtiss, J., dissenting, in Scott v. Sanford, 19 How. 39a 250 CAUSES AND FOKMS OF ACTION". [ 131. legal right, as it may on the whole appear notwithstanding or without regard to the issue in law or fact that may have been raised and decided between the parties ; and this because the pleader may, from misapprehension, have passed by a material question of law without taking issue upon it. There- fore, whenever, upon examination of the whole record, right appears, on the whole, not to have been done, and judgment appears to have ~been given for one of the parties when it should have been given for the other, this will be error in law. And it will be equally error whether the question was raised on de- murrer, or the issue was an issue in fact, or there was no issue; judgment having been taken by default, confession, etc. In all these cases, indeed, except the first, the judges have really committed no error ; for it may be collected from preceding explanations, that no record, or even copy of the proceedings, is actually brought before them except upon demurrer ; but with respect to a writ of error, the effect is the same as if the proceedings had all actually taken place and been recorded in open court according to the fiction and supposition in law. So, on the same principle, there will be error in law if judgment has been entered in a wrong form inappropriate to the case ; although, as we have seen, the judges have in prac- tice nothing to do with the entry on the roll. But on the other hand, nothing will be error in law that does not appear on the face, of the record; for matters not so appearing are not supposed to have entered into the consideration of the judges. (7) Upon error m law, the remedy is not by writ of error coram nobis (for that would be merely to make the same judges reconsider their own judgment), but by a writ of error requiring the record to be sent into some other court of ap- pellate jurisdiction that the error may be there corrected, and called a writ of error generally. With respect to the writ of error of this latter description, it is farther to be observed that it cannot be supported unless the error in law be of a substantial kind. For as, by the effect of the statutes of amendments and jeofails, errors of mere form are no ground for arresting the judgment, (m) so, by the -effect of the same statutes, such objections are now insufficient (T) 2 Inst. 436. (m) Supra, p. 230. 131.] PROCEEDINGS IN AN ACTION. 251 to found a writ of error; though at common law the case was otherwise, (n) 1 "When, on the ground of some error in law, the record is re- moved by writ of error, the following is the course of appeal among the different courts: From the common pleas the record may be removed into the court of king's bench, and from thence, by a new writ of error, into the house of lords; from the exchequer, into the court of exchequer chamber, held before the lord chancellor, lord treasurer and the judges of the court of king's bench and common pleas, and from thence into the house of lords ; from the king's bench, in pro- ceedings by bill, in most of the usual actions, into the court of exchequer chamber, held before the judges of the common pleas, and barons of the exchequer, and from thence into the (n) On this subject, vide 3 BL Com. 406, 7. 1 Motions to strike: Another inci- dent of the trial not noticed by the author, in common use at the pres- ent time, is the motion to strike pleading from the files or to strike out parts of pleadings. Pleas merely to the damages (Dermick v. Chap- man, 11 Johns. 132; Laramore v. Wells, 29 Ohio St 13; Millard v. Thorn, 56 N. Y. 405) ; pleas containing mere evidence (Bowen v. Aubry, 22 Cal. 566 ; McAlister v. Kuhn, 6 Otto, 87), argumentative pleas, or irrele- vant pleas, may in the discretion of the court be stricken out (Salt Lake City Nat. Bank v. Hendrickson, 11 Vroom, 52 ; Buell v. Lake, 8 la. 551), Pleas improper in point of time {Price v. Sinclair, 13 Miss. 254 ; Taylor v. Hall, 20 Tex 211) ; false pleas, or those imputing improper action to the court (Middleton v. Ames, 7 Vt 168; Stewart v. Hotchkiss, 2 Cow. 34), may also be stricken out A plea which is entirely improper in the particular case, or one amount- ing to the general issue (Wilkinson v. Mosley, 30 Ala, 562; HI. Cent Ry. v. Johnson, 34 III 389), selected from a large number found in an excellent note to Best's Right to Begin and Reply, 73, p. 128. If repugnant pleas are filed, one should be stricken out, and by this remedy the court may control the right to file several pleas. Jackson v. Stetson, 15 Mass. 48. A plea amount- ing to the general issue may be stricken out. Jackson v. Hobson, 4 Scam. 418. When two pleas are filed presenting the same defense, both good, one may be stricken out on motion. Ringhouse v. Keener, 63 111, 230; Parkes v. Holmes, 22 id. 522. That a pleading is defective is no ground of itself for a motion to strike; the plea must in some man- ner be improper. If improper, it may still be stricken from the files, though the facts set up show a good defense. Bemis v. Homer, 145 111. 567. The party cannot escape the risk incident to dilatory pleas by motion. Greer v. Young, 120 III 184. The advantage of a motion, where proper, is that errors are not waived by pleading over, nor is the pleading admitted by a motion. 252 CAUSES AND FORMS OF ACTION. [ 131. house of lords ; in proceedings by original, into the house of lords in the first instance. (0) By what course of proceeding the error in the record is dis- cussed and corrected in the appellate court, and the judgment reversed or affirmed, it is not material to the purpose of the present treatise to explain. The reader who wishes for infor- mation on that subject may be referred generally to the many valuable books of practice, (p) l do) 3 Bl. Com. 411. (p) Vide 2 Tidd, ch. xliii, etc. 1 As to the disposal of case on ap- peal: The case may be affirmed, or affirmed in part and reversed in part, or it may be reversed and remanded for another hearing or for further proceedings (Garland v. Davis, 4 How. 131); or reversed simply (Swarington v. Pendleton, 4 S. & R 389) ; or a new judgment may be entered (Pain v. Cowdin, 17 Pick. 142; Union Nat. Bank v. Manistee Lumber Co., 43 111. App. 525 ; Mueller v. U. S. Mutual Ins. Co., 51 111. App. 40 ; Columbus, P. & L R Co. v. Simpson, 5 Ohio St. 251). For full treatment of this subject, see Powell's Appellate Procedure and Elliott's Appellate Procedure, ch. 29. CLASSIFICATION OF RULES ACCORDING TO THE OBJECT TO BE ATTAINED. 1. The production of an issue. 2. The materiality of the issue. 3. The singleness or unity of the issues. 4. Certainty or particularity in the issue. 5. Which prevent obscurity and confusion. 6. Which prevent prolixity and delay. 7. Miscellaneous rules as to order and formal struct- ure of pleadings. 17 CHAPTER VL OF THE PRINCIPAL RULES OF PLEADING. 132. The object of pleading. The account of the course of an action being now concluded, and a view thus obtained of the general form and manner of pleading, and its connection with other parts of the suit, it is next proposed to investigate its principal or fundamental rules, and to explain their scope and tendency as parts of an entire system. For this purpose some observations shall be premised, relative to the manner in which that system was formed and the objects which it con- templates. The manner of allegation in our courts may be said to have been first methodically formed and cultivated as a science in the reign of Edward I. From this time the judges began systematically to prescribe and enforce certain rules of state- ments, of which some had been established at periods consid- erably more remote, and others apparently were then, from time to time, first introduced, (a) * None of them seem to have been originally of legislative enactment, or to have had (a) See Appendix, note (88). 1 In his preface the author points applied to particular forms of action ; out that he was the first to develop our author took a broader view of systematically the principles of the the rules to be observed in framing science of pleading. He mentions allegations, irrespective of the forms the great merit of Mr. Chitty's work, of action or particular pleading. It and distinguishes between his plan is therefore entirely consistent with and the plan of this work ; and while the claim of those who advocated it is a very natural fact, it is none the reform procedure that they ac- the less to be noticed, that while the cept and apply the rules of Stephen, work of Chitty finds its most useful depending, as they do, not upon the field in those jurisdictions where a form of action, but upon the nature resemblance to the English forms of facts to be alleged. "It is as- of action is retained, the work of sumed," says Professor Bliss, "that Stephen is accepted and held of as the student is familiar with the corn- high authority in a code state as mon-law system of law and equity elsewhere. The reason is plain. Mr. pleading. If not, he is groping in Chitty explained rules of pleading as the dark." Bliss' Code PL, 141. It 132.] PRINCIPAL KULES OF PLEADING. 255 i any authority except usage or judicial regulation ; but, from the general perception of their wisdom and utility, they ac- quired the character of fixed and positive institutions, and grew up into an entire and connected system of pleading. This system, which, in its essential parts, still remains in prac- tice unaltered, appears to have been originally devised in a view to certain objects or results, which it will be necessary, to the right apprehension of the subject of this chapter, here to explain. The pleadings (as appears in the preceding chapter) are so conducted as always to evolve some question either of fact or law, disputed between the parties, and mutually proposed and accepted by them as the subject for decision, and the question so produced is called the issue, (b) l As the object of all pleading or judicial allegation is to ascertain the subject for decision, so the main object of that system of pleading established in the common law of England is to ascertain it by the prod action of an issue? And this appears to be peculiar to that system. To the best of the au- thor's information, at least, it is unknown in the present prac- tice of any other plan of judicature. In all courts, indeed, the particular subject for decision must, of course, be in some manner developed before the decision can take place ; but the methods generally adopted for this purpose differ widely from, that which belongs to the English law. (6) See Appendix, note (39). was in reference to these rules, as structive as to the regard which is to afterward developed by our author, be paid to substance rather than that Kent, C. J., said : " I entertain a form. Bayard v. Malcolm, 3 Johns, decided opinion that the established 550, 3 Am. Dec. 450. principles of pleading, which com- * Munday v. Vail, 34 N. J. L. 418; pose what is called its science, are Reynolds v. Stockton, 140 U. S. 256; rational, concise, luminous and ad- Waterman v. Lawrence, 19 CaL 210 ; mirably adapted to the investigation Simonton v. Winters, 5 Pet 141 ; Ma- of truth, and ought consequently to guire v. Tyler, 47 Mo. 115; Anderson be very cautiously touched by the v. Oscamp, 10 Ind. App. 166; Max- hand of innovation." Bayard v. Mai- well's Code PI. 1. omb, 1 Johns. 453-71. 2 Cook v. Scott, 1 Gilm. 333; Bay- The language of the prevailing ard v. Malcolm, 2 John. 550; Super- opinions, in the court of errors where visors of Kewaunee Co. v. Decker, the judgment of Judge Kent in the 30 Wis. 624; McFaul v. Ramsay, 20 above case is reversed, is most in- How. 523. 256 PRINCIPAL RULES OF PLEADING. [ 133. By the general course of all other judicatures, the parties are allowed to make their statements at large (as it may be called), and with no view to the extrication of the precise question in controversy ; and it consequently becomes neces- sary, before the court can proceed to decision, to review, collate and consider the opposed effect of the different state- ments when completed on either side, to distinguish and ex- tract the points mutually admitted, and those which, though undisputed, are immaterial to the cause, and thus, by throw- ing off all unnecessary matter, to arrive at length at the re- quired selection of the point to be decided. This retrospect- ive development is, by the practice of most courts, privately made by each of the parties for himself, as a necessary me- dium to the preparation and adjustment of his proofs; and is also afterwards virtually effected by the judge in the dis- charge of his general duty of decision; while in some other styles of proceeding the course is different ; the point for de- cision being selected from the pleadings by an act of the court, or its officer, and judicially promulgated prior to the proof or trial. 1 The common law of England differs (it will be observed) from t both methods, by obliging the parties to- come to issue; that is, so to plead as to develop some ques- tion (or issue) Tyy the effect of their own allegations, and to agree upon this question as the point for decision in the cause ; thus rendering unnecessary any retrospective operation on the pleadings for the purpose of ascertaining the matter in controversy. 133. The origin of coming to an issue. The author is of opinion that this peculiarity of coming to issue took its rise in the practice of oral pleading. It seems a natural in- cident of that practice to compel the pleaders to short and terse allegations, applying to each other by way of answer, in somewhat of a logical form, and at length reducing the controversy to a precise point. For while the pleading was merely oral, and not committed by any contemporaneous rec- ord to writing (a state of things which may be distinctly traced, among the yet extant archives of the early continental jurisprudence), the court and the pleaders would have to rely exclusively on their memory for retaining the tenor of the 1 Langdell's Sum. Eq. PL, 41. See, also, App., n. 54. 133.] PRINCIPAL RULES OF PLEADING. 257 discussion ; and the development of some precise question or issue would then be a very convenient practice, because it would prevent the necessity of reviewing the different state- ments, and leave no burthen on the memory but that of re- taining the question itself so developed. And even after the practice of recording was introduced, the same brief and logical forms of allegation would naturally continue to be ac- ceptable, while the pleadings were still viva voce, and com- mitted to record on the inconvenient plan of contemporary transcription, (d) A. co-operative reason for coming to issue was the variety of the modes of decision which the law assigned to different kinds of question. The various modes enumerated in the first chapter, as still recognized in practice, were, in the days- of oral pleading, in full vigor and observance, and evidently made it necessary to settle publicly between the parties the precise point on which their controversy turned. For on the nature of this depended the very manner of the subsequent decision, and the form of proceeding to be instituted for that purpose. As questions of law were decided by the court, and matters of fact referred to other kinds of investigation, it was, in the first place, necessary to settle whether the question in the cause or issue was a matter of law or fact. Again, if it happened to be a matter of fact, it required to be developed in a form sufficiently specific to show what was the method of trial appropriate to the case. And unless the state of the question were thus adjusted between the parties, it is evident that they would not have known whether they were to put themselves on the judgment of the court or to go to trial ; nor. in the latter case, whether they were to prepare themselves for trial by jury, or for one of the other various modes of de- ciding matter of fact. To the opinion that this distinctive feature of the English pleading was derived from the practice of oral allegation, and from that of applying different forms of trial to the deter- mination of different kinds of question, it may, perhaps, be objected that both these practices anciently prevailed not only in England but among the continental nations ; among whom, nevertheless, the method of coming to issue is now GO See Appendix, note (40). 258 PRINCIPAL RULES OF PLEADING. [ 134. unknown. This objection, however, is capable of a satisfac- tory answer. On the continent the ancient system of judi- cature, of which these practices formed a part, was, at early periods, supplanted by the methods of the civil law, in which the pleadings were written, (e) and there was but one form of trial, viz., a trial by the judge himself, upon examination of instruments and witnesses adduced in evidence before him. (f) On the other hand, in the courts of Westminster, the law of trial still remains almost without a change ; and with respect to oral pleading, though it at length grew out of fashion there, it gave place, not to allegations formed upon the prin- ciples of the imperial practice, but to supposed transcriptions from the record, the effect of which (as explained in the first chapter) has been to preserve, in these written pleadings, the style and method of those which were delivered viva voce at the bar of the court. But whatever may be the origin and reason of the method of coming to issue, it is at least certain that that method has been substantially practiced in the English pleading from the earliest period to which any of the now existing sources of information refer; and from the work of Glanville on the Laws of England, it may clearly be shown to have existed, in effect, in the reign of Henry II. The term itself, of " issue," * though perhaps somewhat less ancient, yet occurs as early as the commencement of the year-books ; (A) and from the same period, at least, if not an earlier one, the production of the issue has been not only the constant effect, but the pro- fessed aim and object of pleading. 134. Singleness of issues. It was not, however, the only object. It was found that though the parties should arrive at an issue, that is, at some point affirmed on one side and denied on the .other, and mutually proposed and accepted by them as the subject for decision, it might yet happen that the point was immaterial; that is, unfit to decide the action. This, of course, rendered the issue useless. When it occurred, the (e) See Appendix, note (41). (/) Fortescue de laud., ch. 20. (A) See Appendix, note (42). 1 Simon ton v. Winter, 5 Pet 149; 2 AS to several issues, see post, Eberhardt v. Sanger, 51 Wis. 72; p. 356. Havelock v. Rockwood, 8 Term, 27& 134.] PBINCIPAL RULES OF PLEADING. 259 proper remedy, as in the practice of the present day, was a repleader. 1 But it was also naturally an object to avoid its occurrence, and so to direct the pleadings as to secure the production, not only of an issue, but a material one. Again, it was found to be in the nature of many controver- sies to admit of more than one question fit to decide the ac- tion; or in other words, actions would often tend to more than one material issue. This might happen, in the first place, in causes which involved several distinct claims. Thus, if an action be brought, founded on two separate demands, for example, two bonds executed by the defendant in favor of the plaintiff, the issue may arise as to one of them whether it be not discharged by a subsequent release ; as to the other, whether it were not executed under duress of imprisonment, which would make it voidable in law. So there may be more than one material issue in causes which involve only a single claim? Thus, in an action brought upon one bond only, two issues of the same kind may arise, viz., whether it were not executed under duress of imprisonment, or whether, at any rate, it were not, after its execution, released by the plaintiff. In the case of several claims, justice clearly requires that if the cause tend to several issues distinctly applicable to each, these several issues should all be raised and decided; for otherwise there would be no determination of the whole matters in demand. But in the case of a single claim the same consideration does not apply ; for the decision of any one of the material issues that may arise upon it will be suffi- cient to dispose of the entire claim. Thus, in the first ex- ample given, the finding that one bond was released, or that it was not released, would leave the demand on the other wholly untouched. On the other hand, in the second ex- ample, if the party be put to his election either to rely on the fact of the execution under duress or on the release, either of the questions which he so elects will lead to an issue suffi- 1 See Repleader, supra. verey to a single issue." Bliss' Code 2 It is quite evident that there is a PL, 142. This idea is contrary to misapprehension among code writers that expressed by the text A cause as to the idea of the singleness of is- may have several issues, but each is- sue sought. Thus it is said, " It is the ' sue must be single. Clearwater v. boast of the common-law pleaders Meredith, 1 Wall 26. that their system reduces the contro- 260 PRINCIPAL EULES OF PLEADING. [ 135. cient to decide the whole claim. While several issues, there- fore, must of necessity bo allowed in respect of several sub- jects of suit, the allowance of more than one issue in respect of each subject of suit is, in some degree, a question of expe- diency. 1 Those who founded the system of pleading took the course of not allowing more than one, and the motives which led to this course are sufficiently obvious. For reasons assigned in another place, it was of considerable importance to the judges in those remote times, when the contention was conducted orally, to simplify and abbreviate the process as much as possible; and it was in this view, no doubt, that it was found expedient to establish the principle of confining the pleaders to a single issue in respect of each single claim, allowing, at the same time, from necessity, of several issues, when each related to a distinct subject of demand. But whatever the reason, it is clear that in point of fact this prin- ciple was very early recognized in pleading, and that the issue was required not only to be material but single. 135. Certainty of the issue. There was still another quality essential to the issue that of certainty. This word is technically used in pleading, in the two different senses of distinctness and particularity. It is here employed in the lat- ter sense only; and, when it is said that the issue must be certain, the meaning is that it must be particular or specific as opposed to undue generality. 2 One of the causes which have been above assigned for the practice of coming to issue made it also necessary to come to issue with some degree of certainty. The variety in the modes of decision required that the issue should be sufficiently cer- tain to show whether the point in controversy consisted of law or fact; and if the latter, so far to show its nature as to ascertain by what form of trial it ought to be decided. 8 But a certainty still greater than this was required by a cause of another kind, viz., the nature of the original constitution of the . Sturgis v. Burton, 8 Ohio St Nat Bank, 121 id. 582; I'Anson v, 215, 72 Am. Dec. 582 ; Whitney v. C. Stuart, 1 T. R. 748, 2 Sm. Ld. Cas. & N. W. R Co., 27 Wis. 327 ; Wilson 987, and notes. v. Saltiel, 61 Cal. 209. 3 See The King v. Cook, 2 Barn. & 2 O. & M. Ry. v. Van Gelder, 149 Cres. 871. Ill 663 ; Pitts' Sons' Mfg. Co. v. Com. 135.] PRINCIPAL RULES OF PLEADING. 261 trial ly jury. It is a matter clear beyond dispute (but one that has perhaps been too little noticed in works that treat of the origin of our laws) that the jury anciently consisted of persons who were 1 witnesses to the facts, or at least in some measure personally cognizant of them; and who, consequently, in their verdict, gave not (as now) the conclusion of their judg- ment upon facts proved before them in the cause, but their tes- timony as to facts which they had antecedently known. () Accordingly, the venirefacias issued to summon a jury, in those days, did not (as at present) direct the jurors to be summoned from the body of the county, but from the immediate neighbor- hood where the facts occurred, and from among those persons who best knew the truth of the matter. And the only means that the sheriff himself had of knowing what was the matter in controversy, so as to be in a condition to obey the writ, appears to have been the venirefacias itself ; which then stated the nature of the issue, instead of being confined (as now) to a short statement of the form of the action, (n) In this state of things, it was evidently necessary that the issue should be sufficiently certain to show specifically the nature of the ques- tion of fact to be tried. Unless it showed (for example) at what place the alleged matter was said to have occurred, it would not appear into what county the venire should be sent, nor from what neighborhood the jury were to be selected. So, if it did not specify the time and other particulars of the alleged transaction, the sheriff would have no sufficient guide for sum- moning, in obedience to the venire, persons able, of their own knowledge, to testify upon that matter. For all these reasons, and probably for others also, connected with the general objects of precision and clearness, (o) it was considered as one of the essential qualities of the issue that it should be certain' and the certainty was generally to be of the degree indicated by the preceding considerations. In modern times, as the jurors have ceased to be of the nature of witnesses, and are taken, generally, from the body of the county, it is no longer neces- sary to shape the issue for the information of the summoning (0 See Appendix, note (43). (n) Vide Bract., p. 309 b, 310 a, etc. (o) It is laid down by Bracton, oportet quod petens rem designet quam petit; videlicet qualitatem, etc., item quantitatem, etc. Certam enim rem oportet deducere injudicium, ne contingat judicium esse delusorium vel obscurum, etc. Bract. 431o. 262 PRINCIPAL EULES OF PLEADING. [ 135. officer; and, accordingly, the venire facias no longer even sets the issue forth. But, as the parties now prove their facts by the adduction of evidence before the jury, and have conse- quently to provide themselves with the proper documents and witnesses, it is as essential that they should each be apprised of the specific nature of the question to be tried as it for- merly was that the sheriff should be so instructed ; and the particularity which was once required for the information of that officer now serves for the guidance of the parties them- selves in preparing their proofs, (p) On the whole, therefore, the author conceives the chief ob- jects of pleading to be these : that the parties le brought to issue, and that the issue so produced be material, single and certain in its quality. In addition to these, however, the sys- tem of pleading has always pursued those general objects also, which every enlightened plan of judicature professes to re- gard the avoidance of obscurity and confusion, of prolixity and delay. Accordingly, the whole science of pleading, when carefully analyzed, will be found to reduce itself to certain principal or primary rules, tending, for the most part, to one or other of the objects above enumerated, and apparently de- vised in reference to those objects ; while there are some few remaining rules of an anomalous description that appear to belong to other miscellaneous principles. 'It is proposed to collect and investigate these principal rules, and to subject them to a distribution, conformable to the distinctions that thus exist between them in point of origin and object. The following chapters will therefore treat I. Of rules which tend simply to the production of an issue. II. Of rules which tend to secure the materiality of the issue. III. Of rules which tend to produce singlenesss or unity in the issue. IV. Of rules which tend to produce certainty or particular- ity in the issue. Y. Of rules which tend to prevent obscurity and confusion in pleading. (p) As to this latter or modern reason for certainty, see Collett v. Lord Keith, 2 East, 870; J'Anson v. Stuart, 1 T. R. 743; Holmes v. Catesby, 1 Taunt. 543. 135.] PRINCIPAL RULES OF PLEADING. 263 VI. Of rules which tend to prevent prolixity and delay in pleading. VII. Of certain miscellaneous rules, (q) The discussion of these principal rules will incidentally in- volve the consideration of many other rules and principles of a kind subordinate to the first, but extensive, nevertheless, and important in their application ; and thus will be laid before the reader an entire though general view of the whole system of pleading, and of the relations which connect its different parts with each other. (3) See Appendix, note (44). NOTE. The attention of the reader is especially directed to the statement of the author in the Appendix, note 44, that he is the first to formulate these rules, and to the fact that though lacking in authority then they are not so now, having been recognized, adopted and universally approved by courts and jurists. The editor has taken occasion to separate chapter two of the original work into chapters by making each principal rule the subject of a chapter. CHAPTER VII. OF RULES WHICH TEND SIMPLY TO THE PRODUCTION OF AN ISSUE. 136. Upon examination of the process or system of alle- gation by which the parties are brought to issue, as that pro- cess is described in the first chapter, it will be found to resolve itself into the following fundamental rules or principles: First, that after the declaration the parties must at each stage demur , or plead ~by way of traverse or by way of confession and avoid- ance; secondly, that upon a traverse issue must be tendered; (r) lastly, that the issue when well tendered must be accepted. Either by virtue of the first rule a demurrer takes place which is a tender of an issue in law, or, by the joint operation of the two first, the tender of an issue in fact; and then by the last of these rules the issue so tendered, whether in fact or in law, is ac- cepted and becomes finally complete. It is by these rules, there- fore, that the production of an issue is effected, and these will consequently form the subject of the following section. RULE L 137. After the declaration [and after disposition of dila- tory pleadings], the parties must at each stage demur, or plead by way of traverse, or by way of confession and avoid- ance. 1 This rule has two branches: 1. The party must demur , or plead. One or other of these courses he is bound to take (while he means to maintain his action or defense), until issue be tendered. If he does neither, but confesses the right of the adverse party, or says nothing, the court immediately gives judgment for his adversary; in the former case, as by confession, in the latter by non pros. or nil dicit. (s) (r) With respect to demurrer, it will be remembered that it necessarily implies a tender of issue. () As to the nature of these judgments, vide supra, pp. 239-840. 1 The mode of disposing of pleadings by a motion to strike from the files was not then in vogue. See ante, p. 251, note 1. 138.] RULES WHICH TEND TO PRODUCTION OF ISSUE. 265 2. If the party pleads, it must either be by way of traverse, or of confession and avoidance. If his pleading amount to neither of these modes of answer, it is open to demurrer on that ground, (t] * Such is the effect of this rule, generally and briefly consid- ered. But for its complete illustration it will be necessary to enter much more deeply into the subject, and to consider at large the doctrines that relate both to demurrers and to pleadings. 138. Of demurrer. Under this head it is intended to treat, 1, of the nature and properties of a demurrer ; 2, of the effect of passing a fault by, without demurrer, and pleading over ; 3, of the considerations which determine the pleader in his election to demur or plead. 1. Of the nature and properties of a demurrer. A demurrer may be for insufficiency either in substance or reform; 2 that is, it may be either on the ground that the case shown by the opposite party is essentially insufficient, or on the ground that it is stated in an inartificial manner; for " the law requires in every plea " (and the observation equally applies to all other pleadings) " two things : the one, that it be in matter sufficient the other, that it be deduced and expressed according to the forms of law ; and if either the one or the other of these be wanting, it is cause of demurrer." (u) And we may here take occasion to remark that a violation of any of the rules of pleading that will be hereafter stated is, in general, ground for demurrer; and such fault occasionally amounts to matter of substance, but usually to matter of form only. (*) Reg. Plac. 59; 1 Tidd, 682; 21 Hen. 6, 12; 5 Hen. 7, 13, a, 14, a, b. (u) Per Lord Hobart, Colt v. Bishop of Coventry, Hob. 164. 1 See Merceron v. Dowson, 5 Barn. Artcher, 1 Hill, 266 ; Van Etten v. & Cres. 479. A plea may deny all Hurst, 6 id. 811; Chandler v. Lin- the facts, or it may single out some coin, 52 III 75. one material fact and traverse that, 2 Insufficiency of pleading must be or it may confess all and set forth taken advantage of by demurrer, new facts in avoidance. Hopkins v. "Van Sickle v. Keith. 88 Iowa, 9; Be- Medley, 97 III 402. But it must do mis v. Homer, 145 IlL 567. Improper one or the other, and cannot do both, pleas may be stricken out on motion. Landis v. People, 89 IlL 79 ; Conger See Motion to Strike. T. Johnson, 2 Denio, 96; Brown v. 266 KULES WHICH TEND TO PRODUCTION OF ISSUE. [ 139. 139. Forms of demurrer. A demurrer, as in its nature so also in its form, is of two kinds : it is either general or special. A general demurrer excepts to the sufficiency in general terms without showing specifically the nature of the objection; 1 a special demurrer adds to this a specification of the particular ground of exception, (a?) Of both these forms the reader has already had examples in the first chapter. A general demurrer is sufficient where the objection is on matter of substance. A special demurrer is necessary where it turns on matter of form only ; 2 that is, where, notwithstanding such objection, enough appears to entitle the opposite party to judgment, as far as relates to the merits of the cause. For by two statutes, 27 Elizabeth, chapter 5, and 4 Anne, chapter 16, passed in a view to the discouragement of merely formal objections, it is pro- vided, in nearly the same terms, that the judges " shall give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfec- tion, omission, defect or want of form, except those only which the party demurring shall specially and particularly set down and express, together with his demurrer, as causes of the same ; " the latter statute adding this proviso : " so as suffi- cient matter appear in the said pleadings upon which the court may give judgment according to the very right of the cause." Since these statutes, therefore, no mere matter of form can be objected on a general demurrer; but the de- murrer must be in the special form, and the objection specific- ally stated, (s) But, on the other hand, it is to be observed that under a special demurrer the party may, on the argu- ment, not only take advantage of the particular faults which his demurrer specifies, but also of all such objections in sub- stance, or regarding " the very right of the cause " (as the statutes express it), as do not require, under those statutes, (x) Co. Lltt. 72, a; Reg. Plac. 125, 126; Bac. Ab., Pleas, etc., n. 5. () For examples of cases where a special demurrer Is considered as necessary, and where, on the other hand, a general one is sufficient, vide Buckley v. Kenyon, 10 East, 139; Bow dell T. Parsons, id. 359; Bolton v. Bishop of Carlisle, 2 H. BL 259; Bach v. Owen, 5 T. R. 409. 1 Tyler v. Hand, 7 How. 573. stance, if it is technically defective a 2 Rudd v. Darling, 64 Vt 456. special demurrer should be sustained. Through a declaration be good in sub- O. & M. R. Co. v. People, 149 I1L 663. 140.] EULES WHICH TEND TO PEODUCTIOX OF ISSUE. 267 to be particularly set down, (a) l It follows, therefore, that unless the objection be clearly of this substantial kind, it is the safer course, in all cases, to demur specially. Yet where a general demurrer is plainly sufficient, it is more usually adopted in practice, because the effect of the special form being to apprise the opposite party more distinctly of the nature of the objection, it is attended with the inconvenience of enabling him to prepare to maintain his pleading in argu- ment, or of leading him to apply the earlier to amend. "With respect to the degree of particularity with which, under these statutes, the special demurrer must assign the ground of ob- jection, it may be observed that it is not sufficient to object, in general terms, that the pleading is " uncertain, defective, informal," or the like, but it is necessary to show in what re- spect uncertain, defective, or informal. (5) 2 The concluding words, therefore, in the example formerly given, "and also that the said declaration is, in other respects, uncertain, in- formal, and insufficient" (though these, or some others of similar import, are usually added), are inoperative and use- less, (d) 140. With respect to the effect of a demurrer. . (a) It is, first, a rule that a demurrer admits all such matters of fact as are sufficiently pleaded, (e) The meaning of this rule is that the party, having had his option whether to plead or demur, shall be taken, in adopting the latter alternative, to admit that he has no ground for denial or traverse ; which (as formerly shown) is one of the kinds of pleading. A. demurrer is consequently an admission that the facts alleged are true ; and therefore the only question for the court is whether, as- suming such facts to be true, they sustain the case of the party by whom they are alleged. It will be observed, how- ever, that the rule is laid down with this qualification : that the matter of fact be sufficiently pleaded.* For, if it be not (a) 1 Chitty, 642. (6) 1 Saund. 161, n. 1, 837 b, n. 8. (d) See Appendix, note (45). (e) Bac. Ab., Pleas, etc. (N.) 3; Com. Dig., Pleader (Q. 6); Nowlan T. Geddes, 1 East, 634; Gundry v. Felthram, 1 T. B. 834. 1 State v. Peck, 60 Me. 498; Davies Cases, 19; Kipp v. Bell, 86 III. 577; v. Gibson, 2 Ark. 117. Holmes v. C. & A. Ry., 94 id. 439. 8 State v. Peck, 61 Me. 498, Ames' 3 See Cook v. Rome Brick Co. 268 KULES WHICH TEND TO PEODUCTION OF ISSUE. [ 140. pleaded in a formal and sufficient manner, it is said that a demurrer, in this case, is no admission of the fact. (#) l But this is to be understood as subject to the alterations that have been introduced into the law of demurrer by the statutes al- ready mentioned ; and therefore, if the demurrer be general, instead of special, it amounts, as it is said, to a confession, though the matter be informally pleaded, (h) * (b) Again, U is a, rule that, on demurer, the court 'will con- sider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it. (i) * Thus, on demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judg- ment, not for the defendant, but the plaintiff, (&) 4 provided the declaration be good ; but if the declaration also be bad in substance, then, upon the same principle, judgment would be given for the defendant. (l) b This rule belongs to the general principle stated in the first chapter, (m) that when judgment is to be given, whether the issue be in law or fact, and whether (0) Com. Dig., Pleader (Q. 6). (h) 1 Saund. 337 b, n. 8; 1 Arch. 818. (1) Com. Dig., Pleader (M. 1), (M. 2); Bac. Ab., Pleas, etc., A. N. 8; Piggott's Case, 5 Rep. 89 a; 1 Saund. 285, n. 5; Foster v. Jackson, Hob. 56; Anon., 2 Wild. 150; Le Bret v. Papillon, 4 East, 502. (fc) Anon., 2 Wils. 150. CO Piggott's Case, 5 Rep. 29 a [Ames 1 Cases, 22]. (m) Vide tupra, p. 249. (Ala.), 12 S. Rep. 918; O'Rourk v. C. Ry., 156 Mass. 262; B. & O. Ry. v. Sioux, 4 So. Dak. 41, 19 L. R. A, Harris, 12 Wall 65. A special de- 789; Tyler v. Hand, 7 How. 573; Sulli- murrer is general to everything ex- van v. Iron Silver Mine Co., 109 cept that to which it is filed and U. S. 550; Pullman Palace Car Co. v. cannot be carried back. Kent v. Mo. Pac. R Co., 115 U. S. 587; Kellogg Miles, 65 Vt 582. v. Larkin, 3 Pinney, 123, 56 Am. Dec. 3 See Aurora v. West, 7 Wall 82; 164; Mallan v. May, 11 M. & W. 653; Cook v. Graham, 3 Cranch, 229; State v. School Board, 76 Wis. 177; United States v. Arthur, 5 id. 257; Bennett v. Mclntire, 121 Ind. 231, 6 Townsend v. Jemison, 7 How. 706; L.R. A. 736; Arensv. Wier, 89111. 25; Ferguson v. Meredith, 1 WalL 25; Ebersole v. First Nat. Bank, 36 III Anon., 2 Wilson, 150, Ames' Cases, App. 267; Scofield v. Whitelegge, 49 24. N. Y. 259. Only facts alleged are ad- 4 See Safford v. Miller, 59 III 205; mitted,not conclusions or inferences. Illinois Fire Ins. Co. v. Stanton, 57 id. Id. 359; Fort Dearborn Lodge v. Klein, l See above cases. 115 id. 177; A. & O. Canal Co. v. -Tidd's Pr. 649; United States v. Leitch, 4 Denio, 65. Arthur. 5 Cranch, 259; Steffe v. Old 5 People v. Crabb, 156 III 155. 140.] ECLES WHICH TEND TO PRODUCTION OF ISSUE. 2G9 the cause have proceeded to issue or not, the court is always bound to examine the whole record and adjudge for the plaintiff or defendant, according to the legal right, as it may on the whole appear. 1 It is, however, subject to the following exceptions : First, if the plaintiff demur to a plea in abatement, and the court decide against the plea, they will give judgment of respondeat ouster without regard to any defect in the dec- laration, (ri)* Secondly, the court will not look back into the record to adjudge in favor of an apparent right in the plaintiff, unless the plaintiff have himself put his action upon that ground. Thus, where, on a covenant to perform an award, and not to prevent the arbitrators from making an award, the plaintiff declared in covenant, and assigned as a breach that the de- fendant would not pay the sum awarded, and the defendant pleaded that, before the award made, he revoked, by deed, the authority of the arbitrators, to which the plaintiff de- murred, the court held the plea good as being a sufficient answer to the breach alleged, and therefore gave judgment for the defendant, although they also were of opinion that the matter stated in the plea would have entitled the plaintiff to maintain his action if he had alleged, by way of breach, that the defendant prevented the arbitrators from making their award, (o) Lastly, the court, in examining the whole record to adjudge according to the apparent right, will consider only the right in matter of substance, and not in respect of mere form, such as should have been the subject of special demur- rer. 3 Thus, where the declaration was open to an objection of form, such as should have been brought forward by special demurrer, the plea bad in substance, and the defendant de- (n) Belasyse v. Hester, Lutw. 1596; Routh v. Weddell, id. 1667; Hastrop v. Hastings, 1 Salk. 212; Rich v. Pilkington, Garth. 172. (o) Marsh v. Bulteel, 5 Barn. & Aid. 507. 1 Auburn Co. v. Leitch, 4 Den. 65 ; 6 B. & C. 216, Ames' Cases, 28 ; Shaw v. Tobias, 3 N. Y. 188 ; Dupree Dickson v. Wilkinson, 3 How. 57. v. Blake, 148 111. 453 ; Murphy v. 2 R yan v> May, 14 111. 49 ; Hunter Richards, 5 Watts & S. 279; Fort v. Bilyeu, 39 id. 370; Crawford v. Dearborn Lodge v. Klein, 115 111. 177. Slade, 9 Ala. 887, 44 Am. Dec. 463; The court has only to deal with its State v. Hamlin, 47 Conn. 118; Myers own record. Pac. R Co. v. Mo. Pac. v. Erwin, 20 Ohio, 382, n. R. Co., 11 U. S. 505 ; Davis v. Penton, 3 Baltimore & O. R. Co. v. Harris, 18 12 Wall. 65 ; Aurora v. West, 7 id. 82. 270 EULES WHICH TEND TO PRODUCTION OF ISSUE. [ 141. murred to the replication, the court gave judgment for the plaintiff in respect of the insufficiency of the plea without re- gard to the formal defect in the declaration, (p) l 141. Pleading over without demurrer. 2. -Next is to be considered the effect of pleading over without demurrer. It has been shown that it is the effect of a demurrer to ad- mit the truth of all matters of fact sufficiently pleaded on the other side; but it cannot be said, e converse, that it is the effect of a pleading to admit the sufficiency in law of the facts adversely alleged. On the contrary, it has been seen that upon a demurrer arising at a subsequent stage of the plead- ing, the court will take into consideration, retrospectively, the sufficiency in law of matters to which an answer in fact had been given. And in the first chapter it was shown 2 that even after an issue in fact, and verdict thereon, the court are bound to give judgment on the whole record, and therefore to examine the sufficiency in law of all allegations through the whole series of the pleadings; and, accordingly, that ad- vantage may often be taken by either party of a legal insuf- ficiency in the pleading on the other side, either by motion in arrest of judgment, or motion for judgment non obstanU veredicto, or writ of error, or appeal,* according to the circum- stances of the case. It thus appears, then, that in many cases a party, though he has pleaded over without demurring, may, nevertheless, afterwards avail himself of an insufficiency in the pleading of his adversary. 4 But this is not universally true. For, first, it is to be observed that faults in the pleading are, in some cases, (p) Humphrey v. Bethily, 2 Vent. 198-222. 1 A demurrer to one pleading will Klein, 115 id. 177. It is generally not be carried back to another to said that a demm-rer will not be which it did not profess to be an an- carried back of the general issue, swer and with which it has no con- Dearborn v. Kent, 14 Wend. 183; nection. Ryan v. May, 14 III 49; Coinpton v. People, 86 HI. 176. But Hunter v. Bilyeu, 39id. 368. this position is not tenable when the 2 Ordinarily a demurrer to a plead- declaration is substantially defective ing which is held good cannot be so as not to be good after verdict carried back to a previous defective Auburn & O. Co. v. Leitch, 4 Den. 65; pleading. Dearborn v. Kent, 14 Shaw v. Tobias, 3 N. Y. 188. Wend. 183. But if the declaration 8 Western Assurance Co. v.Koontz, is materially and fatally defective 17 Ind. App. 54. the demurrer will be carried back. 4 Pardey v. Meclianicsville, 101 People v. City of Spring Valley, 129 Iowa, 266. m. 169; Fort Dearborn Lodge v. 142.] RULES WHICH TEND TO PRODUCTION OF ISSUE. 271 aided by pleading over, (s) 1 Thus, in an action of trespass for taking a hook, where the plaintiff omitted to allege in the declaration that it was Ms hook, or even that it was in his possession, and the defendant pleaded a matter in confession and avoidance, justifying his taking the hook out of the plaint- iff's hand, the court, on motion in arrest of judgment, held, that as the plea itself showed that the hook was in the pos- session of the plaintiff, the objection, which would otherwise have been fatal, was cured. () And, with respect to all objec- tions of form, it is laid down as a general proposition, " that if a man pleads over he shall never take advantage of any slip committed in the pleading of the other side, which he could not take advantage of upon a general demurrer." (u) 142. Aider by verdict. faults in the pleading are, in some cases, aided by a verdict, (a?) 2 Thus, if the grant of a re- version, a rent charge, an advowson, or any other heredita- ment which lies in grant, and can only be conveyed by deed, be pleaded, such grant ought to have been alleged to have been made by deed; and if not so alleged, it will be ground of demurrer; but if the opposite party, instead of demurring, pleads over, and issue be taken upon the grant, and the jury find that the grant was made, the verdict aids or cures the imperfection in the pleading; and it cannot be objected in ar- rest of judgment or by writ of error, (y) The extent and principle of this rule of aider by verdict is thus explained in a modern decision of the court of king's bench : " Where a matter is so essentially necessary to be proved, that, had it not been given in evidence, the jury could not have given such a verdict, there the want of stating that matter in ex- () Com. Dig., Pleader (C. 85), (E. 37); Co. Litt. 803 b; Pract. Reg. 851; Glasscock 7. Morgan, 2 Salk. 519. (0 Anon., Sid. 184, cited Bac. Ab., Trespass, p. 603. () Per Holt, C. J., Anon., 2 Salk. 519; Bac. Ab., Pleas, etc., 822; 6 Barn. & Aid. 29. (*) Com. Dig., Pleader (C. 87); 1 Saund. 228, n. 1; Weston v. Mason, 3 Burr. 1725; Spieres r. Parker, 1 T. R. 141; Johnston v. Button, id. 545; Nerot v. Wallace, 8 T. R. 25; Jackson v. Pesked, 1 M. & S. 234; Campbell v. Lewis, 3 Barn. & Aid. 392; Keyworth v. Hill, id. 685; Pippett v. Hearn, 5 Barn. & Aid. 634. (y) 1 Saund. 228 b; laghtfoot v. Brightman, Hutt. 54. See Fowle v. Welsh, 1 Barn. & 202; Keegan v. Kinnare, 123 id. 293; Ores. 229; Fletcher v. Pogson, 8 id. 1 Chitty, PL (14th Am. ed.) 673; Ben- 192. nett v. Edwards, 7 Barn. & Cres. 702 ; Helmuth v. Bell, 150 111. 263; A., Harris v. Beard, 4 Bing. 646; Nurse T. & S. F. R Co. v. Feehan, 149 id. v. Willis, 4 Barn. & Ad. 739. 272 BULES WHICH TEND TO PRODUCTION OF ISSUE. [ 142. press terras in a declaration, provided it contains terms suffi- ciently general to comprehend it in fair and reasonable intendment, will be cured by a verdict ; and where a general allegation must, in fair construction, so far require to be restricted, that no judge and no jury could have properly treated it in an unrestrained sense, it may reasonably be presumed, after verdict, that it was so restrained at the trial." (z) 1 In entire accordance with this are the observations of Mr. Sergeant Williams : " Where there is any defect, imper- fection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demur- rer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly 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." (a) It is, however, only where such " fair and reasonable intendment " can be applied that a verdict will cure the objection ; and therefore if a nec- essary allegation be altogether omitted in the pleading, or if the pleading contain matter adverse to the right of the party by whom it is alleged, and so clearly expressed that no rea- sonable construction can alter its meaning, a verdict will not aid. (5) Therefore, where the plaintiff brought an action of trespass on the case, as being entitled to the reversion of a certain yard and wall, to which the declaration stated a cer- tain injury to have been committed, but omitted to allege that the reversion was in fact prejudiced, or to show any grievance which, in its nature, would necessarily prejudice the reversion, the court arrested the judgment, after a verdict had been given in favor of the plaintiff, and held the fault to be one which the verdict could not cure, (c) Lastly, it is to be observed that, at certain stages of the cause, all objections of form are cured by the different statutes of jeofails and amend- ments; (d) the cumulative effect of which is to provide that (z) Jackson v. Pesked, 1 M. & S. 284. (a) 1 Saund. 228 a. (6) Jackson v. Pesked, supra; Nerot v. Wallace, 8 T. R 25; Weston v. Mason, 8 Burr. 1726. (c) Jackson v. Pesked, supra. (d) Vide supra, p. 230. 1 Quoted, Penn.Co. v. Ellett, 132 III 654, 143.] RULES WHICH TEND TO PRODUCTION OF ISSUE. 273 neither after verdict nor judgment by confession, nil dicit, or non sum informatus, can the judgment be arrested or reversed by any objection of that kind. Thus, in an action of trespass, where the plaintiff omits to allege in his declaration on what certain day the trespass was committed (which is ground for demurrer), and the defendant, instead of demurring, pleads over to issue, and there is a verdict against him, the fault is cured by the statutes of jeofails ; (e no demurrer upon demurrer, (Z) because the first is sufficient, notwithstanding any inaccuracy in its form, to bring the record before the court for their adjudication; and, as for traverse or pleading in con- fession and avoidance, there is of course no ground for them while the last pleading still remains unanswered, and there is nothing to oppose but an exception in point of law. (fc) Supra, p. 193. (Z) Bac. Ab., Fleas, etc. (N.), * 1 Clay Fire Ina Co. v. Wuster- Issue in fact* see Keener v. Finger, hausen, 75 III 285. As to what is an 70 N. C. 4a CHAPTEK YIII. RULES WHICH TEND TO SECURE THE MATERIALITY OF THE ISSUE. RULE L 170. Traverse must not be taken on an immaterial alle- gation, (m) This rule prohibits, first, the taking of a traverse on mat- ter either irrelevant or insufficient in law. Thus, in debt for rent against a lessee for years, if the defendant plead that before the rent was due he assigned the term to another, of which the plaintiff had notice, a traverse of the notice would be bad, as producing an immaterial issue ; for it is not mere notice of the assignment that discharges the lessee, but the lessor's consent to the assignment or his acceptance of rent from the assignee, (n) So in an action of debt on bond conditioned for the payment of ten pounds ten shillings at a certain day, if the defendant should plead payment of ten pounds, a traverse of such payment would be bad, for if the whole sum of ten pounds ten shillings were not paid, the bond would be forfeited ; and the payment of a less sum is wholly immaterial. () 1 Another change was introduced by the statute 4 Ann, ch. 16, sec. 6. This act provides that " every venire facias for the trial of any issue shall be awarded of the J)ody of the proper county where such issue is triable," instead of being (as in the ancient form) awarded from the particular venue of parish, town or hamlet. From this time, therefore, the form of the venire has been changed, and directs the sheriff to sum- mon twelve good and lawful men, etc., " from the body of his county ;"(#) and they are accordingly, in fact, all summoned from the body of the county only, and no part of them, neces- sarily, from the hundred in which the particular place laid for venue is situate. On the whole, then, by the joint effect of these two statutes, the venire, instead of directing the jury to be summoned from that venue which had been laid to the fact in issue, and from the venue of parish, town or hamlet, as well as county, now directs them in all cases to be summoned from the lody of the county in which the action is laid, whether that be the county laid to the fact in issue or not, and without regard to the parish, town or hamlet. What has been hitherto said on the subject of venue relates only to the form in which the venue is laid and its effect as to the venire. There is, however, another very important point still remaining to be considered, viz. : that which relates to the necessity of laying the venue truly. 193. The modern reason for the rule as to venue. Be- fore the change in the constitution of juries above mentioned, (l>) 2 Saund. 5, n. 3. (2) See the form of the venire, supra, p. 816. 1 Holder v. Aultman, 169 U. S. 81. 378 KULES TO PRODUCE CERTAINTY IN ISSUE. [ 193. the venue was of course always to be laid in the true place where the fact arose ; for so the reason of the law of venue evidently required. But when, in consequence of that change, this reason ceased to operate, the law began to distinguish between cases in which the truth of the venue was material, or of the substance of the issue, and cases in which it was not so. A difference began now to be recognized between local and transitory matters. The former consisted of such facts as carried with them the idea of some certain place, comprising all matters relating to the realty and hardly any others; the latter consisted of such facts as might be supposed to have happened anywhere, and therefore comprised debts, contracts, and generally all matters relating to the person or personal property. 1 With respect to the former, it was held that if any local fact were laid in pleading at a certain place, and issue were taken on that fact, the place formed part of the sub- stance of the issue and must therefore be proved as laid, or the party would fail as for want of proof. Bat as to transi- tory facts the rule was that they might be laid as having hap- pened at one place and might be proved on the trial to have occurred at another, (r) The present state of the law, with respect to the necessity of laying the true venue, is accordingly as follows: Actions are either local or transitory. An action is local if all the principal facts on which it is founded be local, 2 and transitory if any principal fact be of the transitory kind. 8 In a local action the plaintiff must lay the venue in the action truly. In a transitory one he may lay it in any county, and any parish, town or hamlet within the county that he pleases. From this state of the law it follows, first, that if an action be local and the facts arose out of the realm, such action can- not be maintained in the English courts; (s) for as the venue in the action is to be laid truly, there is no county into which, (r) Vin. Ab., Trial (M. f ) ; Co. Lltt, 282 a. See Appendix, note (62). (s) Per Buller, J., Doulson v. Matthews, 4 T. R. 503. iPer Marshall, J., Livingston v. 101 Mass. 240, 3 Am. Rep. 336; An- Jefferson, cited supra; Little v. C., drews v. Herriott, 4 Cow. 508. St. P., M. & O. Ry. Co., infra, p. 379. 3 McDuffee v. Portland & Roches- 2 Livingston v. Jefferson, 1 Brock, ter R R., 52 N. H. 430, 13 Am. Rep. 72. -203; Crocker v. Marine Nat'l Bank, 103.] RULES TO PRODUCE CERTAINTY IN ISSUE. 379 consistently with that rule, the original writ can be directed. 1 But, on the other hand, if the action be transitory, then, though all the facts arose abroad, the action may be main- tained in this country, because the venue in the action may be laid in any English county, at the option of the plaintiff. The same state of law also leads to the following inference: that in a transitory action the plaintiff may have the action, tried in any county that he pleases ; for, as we have seen, he may lay the venue in the action in any county, and, upon issue joined, the venire issues into the county where the venue in the action is laid. 2 And such, accordingly, is the rule, subject only to a check interposed by another regulation, viz., that which re- lates to the changing of the venue. The courts established about the reign (as it is said) of James I. () a practice by which defendants were enabled to protect themselves from, any inconvenience they might apprehend from the venue being () Knight v. Farnsby, 2 Salk. 670. 1 Actions to recover real property are local Actions to cover damages for an injury to real property, e. g., trespass quare clausum, are gener- ally held to be locaL Ellenwood v. Marietta Chair Co., 158 U. S. 105. But in Little v. Chicago, St. P., M. & O. Ry. Co., 65 Minn. 48, it was held, even where the local statute required actions for injuries to real property to be tried in the county where the land lay, that for damage to land out- side the slate an action would lia And in Stone v. United States, 167 U. S. 178, an action for the unlawful cutting of timber in Idaho was enter- tained in Washington. The real dis- tinction should be between actions in rem, or directly affecting the thing, and those which are in truth but personal Admiralty causes are cognizable exclusively by the federal courts, and it is sometimes difficult to de- termine whether the cause is an ad- miralty case or one happening not on the sea; e, g., where a plank is handled on the dock, and falling in- jures a man on shipboard, held an admiralty case. Hermann v. Port B. M, Co., 69 Fed. Rep. 646. On the other hand, damage to property on land by the negligent escape of sparks from a steamer is not within the admiralty jurisdiction. Ex parte Phenix Ins. Co., 118 U. S. 610. If an act is done in one county which in- jures land in another, the venue may be in either. Pilgrim v. Mellor, 1 HI. App. 448. Advantage may be taken of an error in venue when the suit should be brought in one place, but the court has jurisdiction in another, by demurrer or plea in abatement. Drake v. Drake, 83 111. 526. Or by a plea to the jurisdiction. See form in Livingston v. Jefferson, supra. And it is held that the defect is fatal at any stage. Ellenwood v. Marietta Chair Co., 158 U. S. 105. Venue is gen- erally regulated by statutes. 2 In the United States the statutes usually provide for suing a defend- ant where he resides. 380 BULES TO PRODUCE CERTAINTY IN ISSUE. [ 193. laid contrary to the fact, and enforce, if they pleased, a com- pliance with the stricter and more ancient system, (u) By this practice, when the plaintiff in a transitory action lays a false venue, the defendant is entitled to move the court to have the venue changed, i. e., altered to the right place; and the court, upon affidavit that the cause of action arose wholly in the county to which it is proposed to change the venue, will in most cases grant the application and oblige the plaintiff to amend his declaration in this particular, unless he, on the other hand, will undertake to give at the trial some material evidence arising in the county where the venue was laid. "Whether the action bp local or transitory, every local fact alleged in the writ and declaration must still be laid with its true venue, on peril of a variance if the fact should be brought in issue ; but transitory facts may be laid with any venue, at the choice of the plaintiff, though it is the usual and most proper course to lay them all with the venue in the action. As in the writ and declaration, so in the plea and subsequent pleadings, every local fact must be laid with its true venue, under peril of variance; but with respect to transitory ones, the rule is that they must be laid with the venue in the ac- tion, (x) and even to lay the true place is in this case not allowable if it differ from that venue. Thus, in the example already supposed, of an action on a bond where the action is laid in Middlesex, if the defendant should plead a release at Oxford, this departure from the venue in tlie action would be bad, (y) though the release should really have been executed there. For as the plaintiff may, for a transitory matter, choose any venue that he likes in his writ and declaration, so upon the same principle it would have followed that the defendant might also, for a transitory matter, have chosen any venue in his plea; and thus, whoever happened to make the last affirm- ative allegation and therefore to lay the last venue, would have been able, prior to the alteration of practice introduced by the statute of Charles II., to draw the venire facias and the trial to any place that he pleased. But it was thought more rea- () See Appendix, note (63). (a?) Wright v. Ramseot, 1 Saund. 85; 2 Saund. 5, n. 8. (y) Co. Litt 282 b. 193.] RULES TO PRODUCE CERTAINTY IN ISSUE. 381 sonable and convenient that this option should rest with the plaintiff, who, having in the first instance chosen a venue, ought not to be removed from it without cause. The defendant, there- fore, is obliged to follow the venue that the plaintiff has laid; and in consequence of the establishment of this rule, it seems now to be held that to transitory matters no venue need now be laid in pleadings subsequent to the declaration, because, with respect to every matter of this description, the original venue will be taken to be implied, (s) In practice, however, it is usual to lay a venue in these as well as in the declaration ; and perhaps in point of strict form it is the more proper course. Another point to be noticed on this subject of the true alle- gation of venue is, that when transitory matters are alleged out of their true place, it seems to be necessary that they should be laid (as the phrase is) under a videlicet, i. ) Walters v. Mace, 2 Barn. & Aid. 756. (g) Com. Dig., Pleader (3 M. 9); Bract 872 b, 873 b. (r) Ibid. () As in the example, supra, pp. 164, 168. (*) As in the example, tupra, p. 161. 1 May v. Attleboro Bank, 19 III acts complained of. Smith v. Force, App. 604; Malcolm v. O'Reilly, 89 31 Minn. 119. In an action of eject- N. Y. 156 ; Smith v. Barclay, 54 ment, possession at time of suit must Minn. 47. The allegation of owner- be shown. Cofer v. Schening, 98 ship should relate to the time of the Ala. 338L 392 RULES TO PRODUCE CERTAINTY IN ISSUE. [ 203, 204:. " lawfully possessed of a certain close," etc. (u) "With respect to incorporeal hereditaments, a title of possession is generally laid by alleging that the plaintiff was possessed of the cor- poreal thing in respect of which the right is claimed, and by reason thereof was entitled to the right at the time in ques- tion; for example, .that he "was possessed of a certain mes- suage, etc., and by reason thereof, during all the time aforesaid, of right ought to have had common of pasture, etc." (x) 203. When a title of possession is applicable. A title of possession is applicable, that is, will be sufficiently sustained by the proof, in all cases where the interest is of a present and immediate kind. Thus, when a title of possession is alleged with respect to goods and chattels, the statement will be sup- ported by proof of any kind of present interest in them, whether that interest be temporary and special or absolute in its nat- ure; as, for example, whether it be that of a carrier or finder only, or that of an owner and proprietor, (y) So where a title of possession is alleged in respect of corporeal or incor- poreal hereditaments, it will be sufficiently maintained by prov- ing any kind of estate in possession, whether fee-simple, fee-tail, for life, for term of years, or otherwise. On the other hand, with respect to any kind of property, a title of possession would not be sustained in evidence by proof of an interest in remainder or reversion only ; and therefore when the interest is of that description the preceding forms are inapplicable, and title must be laid in remainder or reversion, according to the fact, and upon the principles that will be afterwards stated on the subject of alleging title in its full and precise extent. 204. If title of possession is applicable the allegation thereof is often sufficient. Where a title of possession is applicable the allegation of it is in many cases sufficient in pleading without showing title of a superior kind. The rule on this subject is as follows : That it is sufficient to allege posses- sion as against a wrong-doer, (z) * or, in other words, that it is (u) See an example, 2 Chitty, 631. (.x) See an example, 2 Chitty, 854. GO 2 Saund. 47 a, n. 1. Or) Com. Dig., Pleader (C. 39), (C. 41); Taylor v. Eastwood, 1 East, 218. 1 See Trespasa See, also, Langford v. Webber, 3 Mod. 132. 204.] ETJLES TO PEODUCE CERTAINTY IN ISSUE. 393 enough to lay a title of possession against a person who is stated to have committed an injury to such possession, having, as far as it appears, no title himself. Thus, if the plaintiff de- clare in trespass for breaking and entering his close, or in tres- pass on the case for obstructing his right of way, it is enough to allege in the declaration in the first case that it is the " close of the plaintiff," (a) in the second case that " he was possessed of a certain messuage, etc., and by reason of such possession of right ought to have had a certain way," etc. For if the case was that the plaintiff being possessed of the close, the de- fendant, having himself no title, broke and entered it, or that the plaintiff being possessed of a messuage and right of way, the defendant, being without title, obstructed it, then whatever was the nature and extent of the plaintiff's title in either case, the law will give him damages for the injury to his possession ; and it is the possession, therefore, only that needs to be stated. It is true that it does not yet appear that the defendant had no title, and by his plea he may possibly set up one superior to that of the plaintiff; but as, on the other hand, it does not yet appear that he had title, the effect is the same, and till he pleads he must be considered as a mere wrong-doer; that is, he must be taken to have committed an injury to the plaintiff's possession without having any right himself. Again, in an ac- tion of trespass for assault and battery, if the defendant justify on the ground that the plaintiff wrongfully entered his house and was making a disturbance there, and that the defendant gently removed him, the form of the plea is that " the de- fendant was lawfully possessed of a certain dwelling-house, etc., and being so possessed the said plaintiff was unlawfully in the said dwelling-house," etc. ; (5) and it is not necessary for the defendant to show any title to the house beyond this of mere possession. For the plaintiff has at present set up no title at all to the house, and on the face of the plea he has committed an injury to the defendant's possession without having any right himself. So in an action of trespass for seiz- ing cattle, if the defendant justify on the ground that the cattle were damage feasant on his close, it is not necessary for (a) See the form of the declaration, supra, p. isi. (6) 2 Chitty, 623. 394r ETJLES TO PRODUCE CERTAINTY IN ISSUE. [ 205. him to show any title to his close except that of mere pos- session, (c) It is to be observed, however, with respect to this rule as to alleging possession against a wrong-doer, that it seems not to hold in replevin. For, in that action, it is held not to be suffi- cient to state a title of possession, even in a case where it would be allowable in trespass by virtue of the rule above mentioned. Thus, in replevin, if the defendant plead that he was possessed of a messuage and entitled to common of past- ure as appurtenant thereto, and that he took the cattle dam- age feasant, it seems that this pleading is bad, and that it is not sufficient to lay such mere title of possession in this ac- tion, (d) It is to be observed, too, that this rule has little or no application in real or mixed actions, for in these an injury to the possession is seldom alleged ; the question in dispute being, for the most part, on the right of possession or the right of property. 205. When not sufficient to allege possession. Where this rule as to alleging possession against a wrong-doer does not apply, there, though the interest be present or possessory, it is, in general, not sufficient to state a title of possession, but some superior title must be shown. Thus, in trespass for breaking the plaintiff's close, if the defendant's justification be that the close was his own copyhold estate of inherit- ance, his plea, as it does not make the plaintiff a wrong-doer, but, on the contrary, admits his possessory title in the close, and pleads in confession and avoidance of it, must allege not merely a possession but a seisin in fee of the copyhold. So in a similar action, if the defendant rely on a right of way over the plaintiff's close, it will not be sufficient to plead that he, the defendant, was lawfully possessed of another close and by reason of such possession was entitled to a right of way over the plaintiff's, but he must set forth some superior title to his close and right of way as, for example, that of seisin in fee of the close and a prescription in a que estate (e) to the (c) 2 Saund. 285, n. 8; Anon., 2 Salk. 643; Sea/1 v. Bunnion, 2 Mod. 70; Langford v. Web- ber, 3 Mod. 182. (d) Hawkins v. Secies, 2 Bos. & Pul. 359, 361, n. a; 2 Saund. 285, n. 8; Saunders v. Him- gey, 2 Lut. 1231; Carth. 9; 1 Lord Raym. 332, S. O.; 1 Saund. 347 b, n. 8. () AH to prescription in a que estate, see 2 Bl. Com. 264. 206, 207.] EULES TO PRODUCE CERTAINTY IN ISSUE. 395 right of way. (/) With respect to the manner of stating a superior title to that of possession, it will be shown under the following head relative to the allegation of title in its full and precise extent. 206. When the title must be alleged in its full extent. 2. Where a title of possession is, upon the principles above ex- plained, either not applicable or not sufficient, the title should in general be stated in its full and precise extent. Upon this head two subjects of remark present themselves the allegation of the title itself and the statement of its deri- vation. With respect to the allegation of the title itself, there are certain forms used in pleading appropriate to each different kind of title, according to all the different distinctions as to tenure, quantity of estate, time of enjoyment, and number of owners, (cj) These forms are too various to be here stated ; and it will be sufficient to refer the reader to the copious stores in the printed precedents. (K) l 207. With respect to the derivation of the title, there are certain rules of which it will be necessary to give some account. There is a leading distinction on this subject between estates in fee-simple and particular estates. In general, it is sufficient to state a seisin in fee-simple, per se; that is, simply to state (according to the usual form of alleging that title) that the party was " seised in his de- mesne as of fee of and in a certain messuage," etc., (i) without showing the derivation, or (as it is expressed in pleading) the commencement of the estate. (&) For if it were requisite to show from whom the present tenant derived his title, it might be required, on the same principles, to show from whom that person derived his, and so ad infinitum. Besides, as mere seisin will be sufficient to give an estate in fee-simple, the estate may, for anything that appears, have had no other commencement than the seisin itself, which is alleged. So, (/) See the form, 2 Chitty, 573. (0) Vide 2 BL Com. 103; 2 Chitty, 244-258. Cfc) See 2 Chitty, ibid. (1) As in the examples supra, pp. 154, 289. (!b) Co. Litt. 303 b; Savage v. Hawkins, Cro. Car. OTL 1 See the title of the various forms of action in notes, 396 RULES TO PRODUCE CERTAINTY IN ISSUE. [ 208. though the fee be conditional or determindble on a certain event, yet a seisin in fee may be alleged, without showing the commencement of the estate. (I) However, it is sometimes necessary to show the derivation of the fee, viz., where, in the pleading, the seisin has already been alleged in another person from whom the present party claims. In such case it must of course be shown how it passed from one of these persons to the other. Thus, in debt or covenant brought on an indenture of lease by the heir of the lessor, the plaintiff, having alleged that his ancestor was seised in fee and made the lease, must proceed to show how the fee passed to himself, viz., by descent, (ra) So if, in tres- pass, the defendant plead that E. F., being seised in fee, de- mised to G. H., under whose command the defendant justifies the trespass on the land (giving color); and the plaintiff in his replication admits E. F.'s seisin, but sets up a subsequent title in himself to the same land, in fee-simple, prior to the alleged demise, he must show the derivation of the fee from E. F. to himself by conveyance antecedent to the lease under which G. H. claims, (ri) 208. With respect to particular estates, the general rule is that the commencement of particular estates must be shown. (0) If, therefore, a party sets up in his own favor an estate tail, an estate for life, a term of years, or a tenancy at will, he must show the derivation of that title from its com- mencement, that is, from the last seisin in fee-simple; and if derived by alienation or conveyance, the substance and effect of such conveyance should be precisely set forth. For ex- amples of the manner of thus showing the commencement of particular estates, under all the different kinds of conveyances, and other media of title, the reader must again have recourse to the books of precedents, (p) Under this rule, that the commencement of particular estates must be shown, it is necessary to show the commencement of t G) Doct PL 287. (m) As in the example supra, p. 289. (n) See Upper Bench Precedents, 196, cited 9 Went.; Index, xL, xM. (o) Co. Litt. 303 b; Scilly v. Dally, 2Salk. 662; Garth. 444, S. C.; Searl T. Bunnion, a Mod. 70; Johns T. Whltley, 3 Wils. 72; Hendy v. Stephenson, 10 East, 60; Bast Eat. 666. (p) SeeSChitty, 213-232. 209.] ETJLES TO PRODUCE CERTAINTY IN ISSUE. 397 a copyhold, even though it be copyhold of inheritance. (g) This is on the ground that a copyhold, even in fee, is in the nature of a particular estate in respect of the freehold inher- itance in the lord. And the difficulty that would arise, if the title were to be deduced from the earliest or original grantee, is obviated by the practice of going back to the admittance of the last heir or surrenderee only ; which admittance is con- sidered as in the nature of a grant from the lord, and is so pleaded, (r) It is in this manner that the commencement of a cop3 7 hold estate is in general alleged, namely, by stating it as a grant from the lord ; but where an estate has been already laid in another copyholder, from whom the present party claims, and it becomes necessary, therefore, to show how the estate passed from one to the other, the conveyances by sur- render between the copyhold tenants and the admittance by the lord, etc., must then be set forth according to the fact, (s) To the rule that the commencement of particular estates must be shown there is this exception: that it need not be shown where the title is alleged by way of inducement only, (t) Thus if an action of debt or covenant be brought on an indenture of lease by the executor or assignee of a lessor who had been entitled for a term of years, it is necessary in the declaration to state the title of the lessor, in order to show that the plaintiff is entitled to maintain the action as his representa- tive or assignee. But as the title is in that case alleged by way of inducement only (the action being mainly founded on the lease itself), the particular estate for years may be alleged in the lessor, without showing its commencement. 209. Additional rules on derivation of title. On the subject of the derivation of title, the following additional rules may be collected from the books: First, where a party claims by inheritance he must, in general, show how he is heir, viz., as son or otherwise ; (u) and if he claims by mediate, not immediate, descent, he must show the (q) Pyster v. Hemling, Cro. Jac. 103; Shepheard's Case, Cro. Car. ( 190; Robinson v. Smith, 4 Mod. 346. (r) See same cases, and Brown's Case, 4 Rep. 22 b; Bac. Ab., Pleas, etc., p. 422, 5tfc L (s) See the forms, 2 Chitty, 205, 229. (t) Com. Dig., Pleader (E. 19), (C. 43); Blockley v. Slater, Lutw. 120: Searl v. Bunnion, 2 Mod. 70; Scillyv. Dally, Carth. 444. (it) Denham v. Stephensou, 1 Salk. 355; Duke of Newcastle v. Wright, 1 Lev. 190; 1 Lord Raym. 202. See the example supra, p. 289. 26 398 EULES TO PEODUCE OEETAINTY IN ISSUE. [ 209. pedigree; for example, if he claims as nephew, he must show how nephew, (so) Secondly, where a party claims by conveyance or alienation, the nature of the conveyance or alienation must, in general, fie stated, as whether it be by devise, feoffment, etc. (y) Thirdly, the nature of the conveyance or alienation should b& stated according to its legal effect rather than its form of words. This depends on a more general rule, which we shall have occasion to consider in another place, viz., " that things are to be pleaded according to their legal effect or operation." For the present the doctrine, as applicable to conveyances, may be thus illustrated. In pleading a conveyance for life, with livery of seisin, the proper form is to allege it as a " demise " for life, (3) for such is its effect in proper legal description. So, a conveyance in tail, with livery, is always pleaded (on the same principle) as a " gift " in tail ; (a) and a conveyance of the fee, with livery, is described by the term " enfeoffed." (b) And such would be the form of pleading, whatever might be the words of donation used in the instrument itself; which, in all the three cases, are often the same, viz., those of " give " and " grant." (c) So, in a conveyance by lease and release, though the words of the deed of release be " grant, bargain, sell, alien, release and confirm," yet it should be pleaded as a release only, for that is the legal effect, (d) Fourthly, where the nature of the conveyance is such that it would, at common law, ~be valid without deed or writing, there no deed or writing need be alleged in the pleading, though such document may in fact exist; but where the nature of the con- veyance requires, at common law, a deed or other written instru- ment, such instrument must be alleged, (e) Therefore a con- veyance, with livery of seisin, either in fee, tail, or for life, is fart Dumsday v. Hughes, 8 Bos. & Pul. 463; Blackborough v. Davis, 12 Mod. 619i (10 Bee Com. Dig., Pleader (E. 23), (E. 24). (4 'East. Ent. 647 a, 11 d. (a) See Co. Ent., tit. Formedon, etc., etc. (ft) Upper Bench Prec. 196. See 2 Chitty, 214. " Feoffment properly betokeneth a con- veyance in fee, and yet, sometimes improperly, it is called a feoffment when an estate of freehold only doth pass." Co. Litt. 9 a. Feoffare dicitur, qui feodum simplex, feoffatorio confert; donare, qui feodum talliatum. Spelm. Gloss., verbo Feoffare. And Ix>rd Coke, in another place, makes the distinction laid down hi the text between feoffment, gift and do- mUe. 8 Rep. 82, b. (c) " Do or dedi is the aptest word of feoffment." Co. Litt. 9 a. (d) 2 Chitty, 220 note(t); 1 Arch. 127; 3 Went. 483, 515. (e) Yin. Ab., Fails or Deeds (M. a, 11). 209.] EULES TO PRODUCE CERTAINTY IN ISSUE. 399 pleaded without alleging any charter or other writing of feoffraent, gift or demise, whether such instrument in fact accompanied the conveyance or not. For such conveyance might, at common law, be made by parol only ; (f) and though, by the statute of frauds (29 Car. II., ch. 3, sec. 1), it will not now be valid unless made in writing, yet the form of pleading remains the same as before the act of parliament, (g) On the other hand, a devise of lands (which at common law was not valid, and authorized only by the statutes 32 Hen. 8, ch. 1, and 34 Hen. 8, ch. 5) must be alleged to have been made in writ- ing (h} which is the only form in which the statutes author- ize it to be made. So, if a conveyance by way of grant be pleaded, a deed must be alleged; (i) 1 for matters that "lie in grant" (according to the legal phrase) can pass by deed only. (&). There is one case, however, in which a deed is usually alleged in pleading, though not necessary at common law to the con- veyance, and which, therefore, in practice at least, forms an exception to the above rule. For in making title under a lease for years by indenture, it is usual to plead the indent- ure, (1) though the lease was good at common law, by parol, and needs to be in writing only where the term is of more than three years' duration, and then only by the statute of frauds. There is also another excepted case, in which (on the other hand) it is not necessary to allege a deed, though the common law require one. For in pleading a demise by husband and wife, it is not necessary to show that it was by deed; and yet, both by common law and by statute, such demise can be by deed only, (m) Thus far with respect to the allegation of title in its full and precise extent. Another mode, however, of laying title, still remains to be considered. (/) Vin. Ab., Feoffment (Y.); Co. LItt. 121 b, (g) This depends upon a more general rule, which wfll be noticed hereafter in its proper place. (h) 1 Saund. 276 a, n. 2. (i) Porter v. Gray, Cro. Eliz. 245; 1 Saund. 234, n. 8. (fc) Vin. Ab., tit. Grants (G. &). (J) See the example, 2 Chitty, 555. (m) 2 Saund. 180 b; Wiscot's Case, 2 Rep. 61 b; Dyer, 91 b; Bateman v. Allen, Cro. Eliz. 438; Childs v. Wescott, id. 482. 1 Lathbury v. Arnold, 1 Bing. 217. 400 RULES TO PRODUCE CERTAINTY IN ISSUE. [ 210. 210. Plea of liberum tenementum. 3. Where a title of possession is inapplicable or insufficient, it is not always nec- essary to allege the title in its full and precise extent; for in lieu of this it is occasionally sufficient to allege what may be called a general freehold title. In a plea in trespass quare clausum fregit, or an avowry in replevin, (n) if the defendant claim an estate of freehold in the locus in quo, he is allowed to plead generally that the place is his " close, soil and free- hold" This is called the plea or avowry of liberum tenemen- tum, and it may be convenient here to give the form of it. PLEA Of Liberum Tenementum. In trespass quare clausum fregit. And for a farther plea in this behalf, as to the breaking and entering the said close, in which, etc., in the said declaration mentioned, and with feet in walking, treading down, tramp- ling upon, consuming and spoiling the grass and herbage then and there growing, the said C. D., by leave of the court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says that the said A. B. ought not to have or maintain his aforesaid action thereof against him ; because he says that the said close in the said declaration mentioned, and in which, etc., now is and at the said several times when, etc., was the close, soil and freehold of him, the said C. D. Wherefore he, the said C. D., at the said several times when, etc., broke and entered the said close, in which, etc., and with feet in walking, trod down, trampled upon, consumed and spoiled the grass and herbage then and there growing, as he lawfully might for the cause aforesaid, which are the same trespasses in the introductory part of this plea mentioned, and whereof the said A. B. hath above complained. And this the said C. D. is ready to verify. Wherefore he prays judgment if the said A. B. ought to have or maintain his aforesaid action thereof against him. (o) This allegation of a general freehold title will be sustained by proof of any estate of freehold, whether in fee, in tail, or for life only, and whether in possession or expectant oil the determination of a term of years, (p) But it does not apply (n) 1 Saund. 847 d, n. 0. (o) 2 Chitty, 551. ( p) See 5 Hen. 7, 10 a, pL 2, which shows that where there is a lease for years, it most be replied in confession and avoidance, and is no ground for traversing the plea of liberum tenementum. 211.] KULES TO PRODUCE CERTAINTY IN ISSUE. 401 to the case of a freehold estate in remainder or reversion ex- pectant on a particular estate of freehold, nor to copyhold tenure. The plea or avowry of liberum tenementum is the only case of usual occurrence in modern practice in which the allegation of a general freehold title in lieu of a precise allegation of title is sufficient. (#) l In alleging a general freehold title it is not necessary, as appears by the above example, to show its commencement. 211. Where a party alleges title in his adversary. II. Having discussed the case where a party alleges title in himself or some other whose authority he pleads, next is to be considered the case where a party alleges title in his adver- sary. The rule on this subject appears, in general, to be that it is not necessary to allege title more precisely than is sufficient to xhow a liability in the party charged. Except as far as this object may require, a party is not compellable to show the precise estate which his adversary holds, and out of which his liability arises ; even in a case where, if the same person were pleading his own title, such precise allegation would be neces sary. The reason of this difference is that a party must bo presumed to be ignorant of the particulars of his adversary's title, though he is bound to know his own. (r) To answer the purpose of showing a liability in the party charged, according to the rule here given, it is, in most cases, sufficient to allege a title of possession, the forms of which are similar to those in which the same kind of title is alleged in favor of the party pleading. A title of possession, however, cannot be sustained in evi- dence except by proving some present interest in chattels, or (q) See 1 Saund. 847 d, n. 6. This form of allegation occurred, however, In the now disused actions of assise, the count or plaint in which lays only a general freehold title, Dock. PI. 289. (r) Rider v. Smith, 8 T. R 766; Derisby v. Custance, 4 T. R. 77; Attorney-General v. Mel- ler, Hardr. 459. i Roberts v. Taylor, 1 M., G. & S. Dec. 98; Tribble v. Frame, 7 J. J. 126; Forb Dearborn Lodge v. Klein, Marsh. 599, 23 Am. Dec. 489. As to 115 111. 177; Floyd v. Ricks, 14 Ark. how far judgment on this plea is res 286, 58 Am. Dec. 374; Crockett v. adjudicata, Elson v. Comstock, 150 Lashbrook, 5 T. B. Mon. 531, 17 Am. Ill 30& 402 EULES TO PRODUCE CERTAINTY IN ISSUE. [ 212. actual possession of land. (5) If, therefore, the interest be by way of reversion or remainder, it must be laid accordingly, and the title of possession is inapplicable. So there are cases in which, to charge a party with mere possession, would not be sufficient to show his liability. Thus, in declaring against him, in debt for rent, as assignee of a term of years, it would not be sufficient to show that he was possessed, but it must be shown that he was possessed as assignee of the term. 212. Title of an adversary need not be alleged with great precision. "Where a title of possession is thus inap- plicable or insufficient, and some other or superior title must be shown, it is yet not necessary to allege the title of an adver- sary with as much precision as in the case where a party is stating his own ; () and it seems sufficient that it be laid fully enough to show the liability charged. Therefore, though it seems, in general, to be the rule, with respect to the title of an adversary, as well as a man's own title, that the commence- ment of particular estates should be shown, (u) unless alleged by way of inducement, (a?) yet it is not necessary to show so pre- cisely the derivation of that particular estate to the party. Thus, in debt, where the defendant is charged for rent, as assignee of the term, after several mesne assignments, it is sufficient, after stating the original demise, to allege that " after making the said indenture, and during the term thereby granted, to wit, on the day of , in the year , at , all the estate and interest of the said E. F." (the origi- nal lessee) " of and in the said demised premises, by assign- ment, came to and vested in the said 0. D." without further showing the nature of the mesne assignments, (y) But if the case be reversed, that is, if the plaintiff, claiming as assignee of the reversion, sue the lessee for rent, he must precisely show the conveyances or other media of title by which he be- came entitled to the reversion ; and to say, generally, that it came by assignment, will not, in this case, be sufficient with- out circumstantially alleging all the mesne assignments, (s) (s) Vide supra, pp. 892, 393. (t) Com. Dig., Pleader (C. 42). (u) Vide supra, p. 395. (x) Vide supra, p. 397. (y) 1 Saund. 112, note 1; Attorney-Gen, v. Meller, Hardr. 459; Duke of Newcastle T. Wright, 1 Lev. 190; Derisby v. Custance, 4 T. R. 77; 2 Chitty, 196. (z) 1 Saund. 112, note 1; Pitt v. Russell, 3 Lev. 19. 213, 214.] RULES TO PRODUCE CERTAINTY IN ISSUE. Upon the same principle, if title be laid in an adversary by descent, as, for example, where an action of debt is brought against an heir on the bond of his ancestor, it is sufficient to charge him as heir, without showing how he is heir, viz. : as son or otherwise; (a) but if a party entitle himself by inheritance, we have seen that the mode of descent must be alleged. (5) 213. On issue the title alleged must be strictly proved. The manner of showing title, both where it is laid in the party himself or the person whose authority he pleads, and where it is laid in his adversary, having been now considered, it may next be observed that the title so shown must, in general, when issue is taken upon it, be strictly proved. With respect to the allegations of place, time, quantity and value, it has been shown that, when issue is take upon them, they, in most cases, do not require to be proved as laid, at least if laid under a videlicet. But with respect to title, it is, in general, of the substance of the issue ; and therefore, according to the general principle stated in the first chapter of this work, (c) requires to be maintained accurately by the proof. Thus, in an action on the case, the plaintiff alleged in his declaration that he demised a house to the defendant for seven years, and that during the term the defendant so negligently kept his fire that the house was burned down ; and the defendant having pleaded non demisit modo et forma, it appeared in evidence that the plaintiff had demised to the defendant several tene- ments, of which the house in question was one ; but that, with respect to this house, it was, by an exception in the lease, de- mised at will only. The court held that though the plaintiff might have declared against the defendant as tenant at will only, and the action would have lain, yet, having stated a demise for seven years, the proof of a lease at will was a vari- ance, and that in substance, not in form only ; and, on the ground of such variance, judgment was given for the de- fendant, (d) 214. Title need not be shown where the opposite party is estopped from denying it. The rule which requires that title should be shown having been now explained, it only remains (a) Denbam v. Stephenaon, 1 Salk. 356. (6) Vide supra, p. 397. (c) Supra, p. 219; et vide supra, p. 307. (d) Cud lip T. Bundle, Garth. 20*. BULES TO PRODUCE CERTAINTY IN ISSUE. [ 215. to notice an exception to which it is subject. This exception is that no title need be shown where the opposite party is estopped from denying the title. Thus, in an action for goods sold and delivered, it is unnecessary, in addition to the alle- gation that the plaintiff sold and delivered them to the de- fendant, to state that they were the goods of the plaintiff; (e) for a buyer who has accepted and enjoyed the goods cannot dispute the title of the seller. So in debt or covenant brought by the lessor against the lessee on the covenants of the lease, the plaintiff need allege no title to the premises demised, be- cause a tenant is estopped from denying his landlord's title. On the other hand, however, a tenant is not bound to admit title to any extent greater than might authorize the least?, and, therefore, if the action be brought not by the lessor him- self, but by his heir, executor or other representative or assignee, the title of the former must be alleged, in order to show that the reversion is now legally vested in the plaintiff in the character in which he sues. Thus, if he sue as heir, he must allege that the lessor was seised in fee, for the tenant is not bound to admit that he was seised in fee; and, unless he was so, the plaintiff cannot claim as heir. RULE VL 215. The pleadings must show authority. (/) In general, when a party has occasion to justify under a writ, warrant, precept or any other authority whatever, he must set it forth particularly in his pleading. Thus, in trespass for taking a mare, the defendant pleaded that Sir J. S. was seized in fee of the manor of B., and that he, and all those whose estate he had in the said manor, had always held a lawful court twice a year, to which the tenants of the manor used to resort; that such as had right of com- mon were appointed by the steward to be of the jury ; that by-laws were accustomed to be made there, and that such as had right of common obeyed those laws or paid a forfeiture of a reasonable sum to be imposed on them ; that at one of these courts a jury was sworn and a law made that every person who had common should pay forty shillings for depast- (e) B. N. R 139. (/) " Regularly, whensoever a man doth anything by force of a warrant or authority, ha must", plead it." Co. Litt. 283 a; Ibid. 303 b; Com. Dig., Pleader (E. 17); 1 Saund. 298, n. 1; Lamb v. Mills, 4 Mod. 377; Matthews v. Gary, 3 Mod. 137. 216.] RULES TO PRODUCE CERTAINTY IN ISSUE. 405 uring his cattle on any place where corn was standing; that the plaintiff had right of common, and permitted his sheep to depasture on certain ground on which corn was standing; that such offense was presented at the next court; and that the defendant, being bailiff of the lord of the said manor, did take the mare for the forfeiture, etc. Upon demurrer the court held the plea bad; "for the bailiff cannot take a for- feiture ex officio. There must be a precept directed to him for that purpose, which he must show in the pleading," etc. And judgment was given for the plaintiff. (^) ! However, in replevin, when the defendant makes cogni- zance, confessing the taking of the goods and chattels as bailiff of another person for rent in arrear, or as damage feasant, it is sufficient to say generally that, " as bailiff of the said E. F., he well acknowledges the taking, etc., as for and in the name of a distress," etc., without showing any warrant or authority for that purpose. (K) The allegation of authority, like that of title, must in general be strictly proved as laid. 1 The above-mentioned particulars of place, time, quality, quantity, and value, names of persons, title, and authority, though in this work made the subjects of distinct rules, in a view to convenient classification and arrangement, are to be considered but as examples of that infinite variety of circum- stances which it may become necessary, in different cases and forms of action, to particularize for the sake of producing a certain issue ; for it may be laid down as a comprehensive rule that RULE VIL 216. In general, whatever is alleged in pleading, must be alleged with certainty. (*) * This rule, being very wide in its terms, it will be proper to illustrate it by a variety of examples. (g) Lamb v. Mills, 4 Mod. 877. (A) Matthews v. Gary, 8 Mod. 188. (0 Com. Dig., Pleader (C. 17), (O. J), (E. 5), (F. 17). 1 Von Kittler v. Johnson, 57 III 109; 3 The code rule is the same. Speeder Tayler v. Doremus, 16 N. J. L. 478; Co. v. Teeter, 18 Ind. 846. Eachplead- Whitney v. Shufelt, 1 Den. 594; Col- ing should be sufficiently certain to lett v. Keath, 2 East, 260. apprise the opposite party of what 2 Ingraham v. Edwards, 64 III 526. ho is required to meet on the trial, 406 KULES TO PRODUCE CERTAINTY IN ISSUE. [ 216. In an action of debt on a bond conditioned for performance of covenants, if the defendant pleads generally that he per- formed the covenants according to the condition, the plaintiff cannot in his replication tender issue with a mere traverse of the words of the plea, viz. : that the defendant did not per- form any of the covenants, etc., for this issue would be too wide and uncertain; but the replication in such case must assign a breach, showing specifically in what particular and in what manner the covenants have been broken. (&) In debt on bond the defendant pleaded that the instru- ment was executed in pursuance of a certain corrupt contract made at a time and place specified between the plaintiff and defendant, whereupon there was reserved above the rate of 5 for the forbearing of 100 for a year, contrary to the stat- ute in such case made and provided. To this plea there was a demurrer assigning for cause that the particulars of the con- tract were not specified, nor the time of forbearance, nor the sum to be forborne, nor the sum to be paid for such forbear- ance. And the court held that the plea was bad for not set- ting forth particularly the corrupt contract and the usurious interest; and Bayley, J., observed that he "had always un- derstood that the party who pleads a contract must set it out if he be a party to the contract." (I) To an action on the case for a libel imputing that the plaintiff was connected with swindlers and common inform- ers, and had also been guilty of deceiving and defrauding divers persons, the defendant pleaded that the plaintiff had been illegally, fraudulently and dishonestly concerned with, and was one of, a gang of swindlers and common informers, (fc) Flower v. BOBS, 5 Taunt 888. Per Lord Mansfield, Sayre T. Binns, Cowp. 578; Com. Dig., Reader (F. 14). (I) Hill T. Montagu, 2 M. & S. 377; Hinton T. Roffey, 8 Mod. 85, S. P, and to apprise the court of the issue nite or uncertain that the precise presented. If it does this it is suffi- nature of the charge or defense is cient. O. & M. R. R. Co. v. People, not apparent, the court may require 149 III 663. See I'Anson v. Stuart, the pleading to be made more defi- 2 Sm. L. C. 987; Manning v. Haas, nite and certain. People v. Ryder, 5 Colo. 37. In New York it is pro- 15 N. Y. 43& See index, title Cer- vided by the code that when the alle- tainty. gations of a pleading are so indefi- 216.] EULES TO PRODUCE CERTAINTY IN ISSUE. 407 and had also been guilty of deceiving and defrauding divers persons with whom he had had dealings and transactions. To this plea there was a special demurrer, assigning for cause, inter alia, that the plea did not state the particular instances of fraud; and though the court of common pleas gave judgment for the defendant, this judgment was afterwards reversed upon writ of error, and the plea adjudged to be insufficient on the ground above mentioned, (m) In an action of trespass for false imprisonment the defend- ants pleaded that before the said time when, etc., certain per- sons unknown had forged receipts on certain forged dividend warrants, and received the money purporting to be due thereon in Bank of England notes, among which was a note for 100, which was afterwards exchanged at the bank for other notes, amongst which was one for 10, the date and number of which were afterwards altered ; that afterwards, and a little before the said time when, etc., the plaintiff was suspiciously possessed of the altered note, and did in a sus- picious manner dispose of the same to one A. B., and after- wards in a suspicious manner left England and went to Scot- land; whereupon the defendants had reasonable cause to suspect, and did suspect, that the plaintiff had forged the said receipts; and so proceeded to justify the taking and detain- ing his person, to be dealt with according to law. Upon general demurrer this plea was considered as clearly bad, because it did not show the grounds of suspicion with suffi- cient certainty to enable the court to judge of their suffi- ciency ; and it was held that the use of the word suspiciously would not compensate that omission, (n) In an action of debt on a bond conditioned to save the plaintiff harmless from such a bail in such an action, the de- fendant pleaded quod libere et absolute exoneravit the plaintiff of the said bail. And upon demurrer it was adjudged for the plaintiff ; " for always, when one pleads a discharge, and that he saved him harmless, he ought to show how, that the court might adjudge thereof." (0) In assumpsit the plaintiff declared that whereas lie bought (m) TAnson v. Stuart, 1 T. R. 748. (n) Mure v. Kaye, 4 Taunt. 34. (o) Cro. Jac. 363; et vide Ibid. 503; Cro. Eliz. 916; 1 Saund. 11T. n. 1. 408 BULES TO PRODUCE CERTAINTY IN ISSUE. [ 216. of the defendant a horse for 22s., and 111. more to be paid at the death or marriage of the plaintiff, for which he should be- come bound, with a sufficient surety, by their writing obliga- tory; the defendant, in consideration thereof, promised to deliver the horse when required; and that afterwards the plaintiff offered to "become "bound to the defendant, with a suf- ficient surety, for the payment of the said 11?. as aforesaid, but yet the defendant had not delivered the horse, though required so to do. The court held that the declaration was bad because he did not aver that he offered a bond sealed, etc., nor set down the sum in which he was to be bound to secure the said 11?., nor name the surety, (p) In an action of trover for taking a ship the defendant pleaded that he was captain of a certain man-of-war, and that he seized the ship mentioned in the declaration as prize; that he carried her to a certain port in the East Indies; and that the admiralty court there gave sentence against the said ship as prize. Upon demurrer it was resolved that it was necessary for the plea to show some special cause for which the ship be- came a prize; and that the defendant ought to show who was the judge that gave sentence, and to whom that court of ad- miralty did belong. And for the omission of these matters the plea was adjudged insufficient, (q) In an action of debt on bond conditioned to pay so much money yearly while certain letters patent were in force, the defendant pleaded that from such a time to such a time he did pay; and that then the letters patent became void and of no force. On demurrer to the replication, the court adjudged that the plea was bad, because it did not show how the letters patent became void. (/) In an action of debt on a bond conditioned to pay the plaintiff, when he should come to his full age, all such legacies as had been given him in a certain will, the defendant pleaded that he did at that time pay all such legacies, without show- ing the day and year, etc., when they were paid, nor what the legacies were. And it was held clearly " that he ought to have shown this in certain in his plea what he had paid, and (p) Hob. 69, 77. This was after verdict; but qu. if the faults would not now be considered as aided after verdict, (q) Garth. 31. (r) Lewis v. Preston, 1 Show. 290; Skin. 303, S. C. 217. 218.] RULES TO PRODUCE CERTAINTY IN ISSUE. 409 also the time of payment, when this was, and also the time when he came to his full age." (s) Where the defendant justified a taking on the ground of a contempt committed tarn facf-is quam verbis, the plea was held bad upon demurrer, because it set forth the contempt in this general wa} r without showing its nature more particu- larly. () In an action of debt on bond conditioned to prove a debt paid, a plea of performance, alleging that A. and B. proved it, was held bad upon demurrer, because it did not show how the proof was made, (u) 217. On issue the allegation must be proved as laid* 1 - With respect to all points on which certainty of allegation is required, it may be remarked in general that the allegation, when brought into issue, requires to be proved in substance as laid ; and that the relaxation from the ordinary rule on this subject, which is allowed with respect to place, time, quan- tity and value, does not, generally speaking, extend to other particulars. Such are the principal rules which tend to certainty ; but it is to be observed that these receive considerable limitation and restriction from some other rules of a subordinate kind, to the examination of which it will now be proper to proceed. 218. 1. It is not necessary in pleading to state that which is merely matter of evidence. (a?) 2 In other words, it is not necessary, in alleging a fact, to state such circum- stances as merely tend to prove the truth of the fact. This (s) 1 Bulst. 43. (0 Collett v. Bailiffs of Shrewsbury, 2 Leo. 84 (M) Benl. 65. (x) " Evidence shall never be pleaded because it tends to prove matter in fact; and there- fore the matter in fact shall be pleaded." Bowman's Case, 9 Rep. 9 b; and see 9 Ed. 3, 5 b, 6 a, there cited; Eaton v. Southby, Willes, 131; Jedmy v. Jenny, Raym. 8. 1 Rockwell Co. v. Castroni, 6 Colo. v. Bell, 87 N. C. 41; Green v. Palmer, 54; G., H. & S. A. Ry. Co. v. Hening 15 CaL 414, 76 Am. Dec. 492; Mor- (Tex. Civ. App.), 36 S. W. R 129. rison v. Insurance Co., 5 Am. St. R. 2 Church v. Gilman, 15 Wend. 656, 63. Under this rule the laws of 30 Am. Dec. 82; Fidler v. Delavan, foreign states stand on the same 20 Wend. 58; Hyatt v. McMahon, 25 footing as any other fact, and are to Barb. 457; Aultman & Co. v. Seg- be pleaded only when they are issu- linger, 2 S. Dak. 442; Clark v. Line- able. Thomson-Houston Electric Co. berger, 44 Ind. 223; Louisville Canal v. Palmer, 52 Minn. 174 Co. v. Murphy, 9 Bush, 527; Grant 410 RULES TO PRODUCE CERTAINTY IN ISSUE. [ 218. rule may be illustrated by the following case: In an action of replevin for seventy cocks of wheat, the defendant avowed under a distress for rent arrear. The plaintiff pleaded in bar, that before the said time when, etc., one H. L. had recovered judgment against G. S., and sued out execution; that G. S. was tenant at will to the defendant, and had sown seven acres of the premises with wheat, and died possessed thereof as tenant at will ; that after his death the sheriff took the said wheat in execution and sold it to the plaintiff; that the plaint- iff suffered the wheat to grow on the locus in quo till it was ripe and fit to cut ; that he afterwards cut it and made it into cocks, whereof the said seventy cocks were parcel ; that the said cocks being so cut, the plaintiff suffered the same to lie on the said seven acres until the same, in the course of hus- bandry, were fit to be carried away ; and that while they were so lying, the defendant, of his own wrong, took and distrained the same under pretense of a distress, the said wheat not then being fit to be carried away, according to the course of hus- bandry, etc. The defendant demurred; and, among other objections, urged that it ought to have been particularly , shown how long the wheat remained on the land after the cut- ting, that the court might judge whether it were a reasonable time or not. But the court decided against the objection. " For though it is said, in Co. Litt. 56 b, that in some cases the court must judge whether a thing be reasonable or not, as in case of a reasonable fine, a reasonable notice, or the like, it is absurd to say that, in the present case, the court must judge of the reasonableness ; for, if so, It ought to have been set forth in the plea, not only how long the corn lay on the ground, but likewise what sort of weather there was during that time, and many other incidents, which would be ridiculous to be inserted in a plea. We are of opinion, therefore, that this matter is sufficiently averred, and that the defendant might have traversed it if he had pleased, and then it would have come before a jury, who, upon hearing the evidence, would have been the proper judges of it." (y) The reason of this rule is evident if we revert to the gen- eral object which all the rules tending to certainty contem- plate, viz., the attainment of a certain issue. This implies (as Cv) Eaton v. Southby, Willes, 181. 219.] KULES TO PRODUCE CERTAINTY IN ISSUE. 411 has been shown) a development of the question in contro- versy in a specific shape ; and the degree of specification with which this should be developed it has been elsewhere at- tempted, in a general way, to define, (s) But, so that that object be attained, there is, in general, no necessity for farther minuteness in the pleading; and therefore, those subordinate facts which go to make up the evidence by which the affirm- ative or negative of the issue is to be established do not re- quire to be alleged, and may be brought forward for the first time at the trial, when the issue comes to be decided. Thus, in the above example, if we suppose issue joined, whether the wheat cut was afterwards suffered to lie on the ground a reasonable time or not, there would have been sufficient cer- tainty, without showing on the pleadings any of those cir- cumstances (such as the number of days, the state of the weather, etc.) which ought to enter into the consideration of that question. These circumstances, being matter of evi- dence only, ought to be proved before the jury, but need not appear on the record. This is a rule so elementary in its kind and so well observed in practice as not to have become frequently the subject of illustration by decided cases ; and (for that reason, probably) is little, if at all, noticed in the digests and treatises. It is, however, a rule of great importance, from the influence which it has on the general character of English pleading; and it is this, perhaps, more than any other principle of the science, which tends to prevent that minuteness and prolixity of detail in which the allegations, under other systems of judicature, are involved. 219. Again: 2. It is not necessary to state matter of which the court takes notice ex offlcio. (a) l Therefore it is unnecessary to state matter of law; (J) for this the judges are (z) See supra, p. 259. () Co. Litt. 303 b; Com. Dig., Pleader (C. 78); Deybel's Case, 4 Barn. & Aid. 248. (6) Doct PL 102; Per Buller, J., The King v. Lyme Regis, Doug. 169. i K a, M. & R Ry. v. Phillips, 98 lock, 15 Tex. 437 ; Secrist v. Petty, Ala. 159 ; McDonald v Alabama 109 111. 188. For an exhaustive and Gold Ins. Co., 85 id. 401 ; Weaver v. valuable statement of the subjects Nugent, 72 Tex. 272, 13 Am. St. R 792 ; of which the court will take judicial Ferguson v. State, 4 G. Greene, 302, notice, see note (by Mr. Robert Desty) 61 Am. Dec. 120 ; Castro v. Whit- to Olive v. State, 4 L. R. A. L 412 EULES TO PRODUCE CERTAINTY IN ISSUE. [ 219. bound to know, and can apply, for themselves, to the facts alleged. Thus, if it be stated in pleading that an officer of a corporate body was removed for misconduct by the corporate body at large, it is unnecessary to aver that the power of re- moval was vested in such corporate body, because that is a power by law incidental to them, unless given by some charter, by-law, or other authority, to a select part only, (c) ISTor is it the principles of the common law alone which it is unneces- sary to state in pleading. The public statute law falls within the same reason and the same rule; as the judges are bound, officially, to notice the tenor of every public act of parlia- ment, (d) It is therefore never necessary to set forth a public statute, (e) The case, however, of private acts of parliament is different; for these, the court does not officially notice; (f) and therefore, where a party has occasion to rely on an act of this description, he must set forth such parts of it as are material, (g) It may be observed, however, that though it is in general unnecessary to allege matter of law. yet there is sometimes occasion to make mention of it for the convenience or intelli- gibility of the statement of fact. Thus, in an action of as- sumpsii on a bill of exchange, the form of the declaration is to state that the bill was drawn or accepted by the defendant, etc. (according to the nature of the case), and that the defend- ant as drawer or acceptor, etc., became liable to pay ; and being so liable, in consideration thereof, promised to pay. So it is sometimes necessary to refer to a public statute in general terms to show that the case is intended to be brought within the statute; as, for example, to allege that the defendant committed a certain act against the form of the statute in such case made and provided; but the reference is made in this general way only, and there is no need to set the statute forth. This rule by which matter of law is omitted in the plead- ings by no means prevents (it will be observed) the attainment of the requisite certainty of issue. For even though the dis- (c) The King v. Lyme Regis, Doug. 148. (d) 1 Bl. Com. 85. (e) Boyce v. Whitaker, Doug. 97; Partridge v. Strange, Plow. 81. ./) 1 Bl. Com., ibid.; Platt v. Hill, Ld. Ray. 381. (;/) Boyce v. Whitaker, Doug. 97. 220.] EULES TO PRODUCE CERTAINTY IN ISSUE. 413 pute between the parties should turn upon matter of law, yet they may evidently obtain a sufficiently specific issue of that description without any allegation of law, for ex facto jus oritur; that is, every question of law necessarily arises out of some given state of facts, and therefore nothing more is nec- essary than for each party to state alternately, his case in point of fact; and upon demurrer to the sufficiency of some one of these pleadings, the issue in law must at length (as formerly demonstrated) arise. As it is unnecessary to allege matter of law, so if it be alleged it is improper (as it has been elsewhere stated) to make it the subject of traverse. (A) Besides points of law, there are many other matters of a public kind, of which the court takes official notice, and with respect to which it is for the same reason unnecessary to make allegation in pleading, such as matters antecedently alleged in the same record ; (i) the time of the king's accession, his proclamations, his privileges ; the time and place of holding parliament, the time of its sessions and prorogations and its usual course of proceeding ; the ecclesiastical, civil and mari- time laws ; the customary course of descent in gavelkind and borough English tenure; the course of the almanac; the divis- ion of England into counties, provinces and dioceses ; the mean- ing of English words and terms of art (even when only local in their use) ; legal weights and measures and the ordinary measurement of time ; the existence and course of proceeding of the superior courts at Westminster and the other courts of general jurisdiction, and the privileges of the officers of the courts at Westminster. (&) 220. 3. It is not necessary to state matter which would come more properly from the other side. (Z) 1 This, which is the ordinary form of the rule, does not fully express its meaning. The meaning is that it is not necessary to antici- pate the answer of the adversary ; s which, according to Hale, (A) Vide supra, p. 308. (t) Co. Lltt. 303 b. (fc) This enumeration is principally taken from 1 Chitty, 216-226, where farther informa- tion on the subject will be found. (0 Com. Dig., Pleader (C. 81); Stowell v. Lord Zouch, Plow. 376; Walowigham's Case, id. 664; St. John v. St. John. Hob. 78; Hotham v. East India Co., 1 T. R. 638. i See Puterbaugh'a Com. L. Prac. 171. 2 Romer v. Center, 53 Minn. 171. 27 KULES TO PRODUCE CERTAINTY IN ISSUE. [ 220. C. J., is " like leaping before one comes to the stile." (m) It is sufficient that each pleading should in itself contain a good prima facie case, without refeaence to possible objections not yet urged. Thus, in pleading a devise of land by force of the statute of wills, 32 Hen. 8., ch. 1, it is sufficient to allege that such an one was seised of the land in fee, and devised it by his last will, in writing, without alleging that such devisor was of full age. For though the statute provides that wills made by femes covert, or persons within age, etc., shall not be taken to be effectual, yet if the devisor were within age, it is for the other party to show this in his answer, (n) and it need not be denied by anticipation. So, in a declaration of debt upon a bond, it is unnecessary to allege that the defendant was of full age when he executed. (0) So, where an action of debt was brought upon the statute 21 Hen. 6, against the bailiff of a town for not returning the plaintiff, a burgess of that town, for the last parliament (the words of the statute being that the sheriff shall send his precept to the mayor, and, if there be no mayor, then to the bailiff), the plaintiff declared that the sheriff had made his precept unto the bailiff, without averring that there was no mayor. And, after verdict for the plaintiff, this was moved in arrest of judgment. But the court was of opinion clearly that the declaration was good, " for we shall not intend that there was a mayor except it be showed, and if there were one, it should come more properly on the other side." (p ) So, where there was a covenant in a charter-party " that no claim should be admitted or allowance made for short tonnage, unless such short tonnage were found and made to appear on the ship's arrival, on a survey to be taken by four shipwrights to be indifferently chosen by both parties," and in an action of covenant brought to recover for short tonnage the plaintiff had a verdict, the defendant moved, in arrest of judgment, that it had not been averred in the declaration that a survey was taken and short tonnage made to appear. But the court held that, if such survey had not been taken, this was matter of defense which ought to have been shown by the defendants, and refused to arrest the judgment. (g) (m) Sir Ralph Bevy's Case, Vent. 217. (n) Stowell v. Lord Zouch, Plow. 876. (o) Walsingham's Case, Plow. 564; Sir Ralph Bovy's Case, Vent. 817. (p) St. John v. St. John, Hob. 78. (4) Hotham v. East India Co., 1 T. R. 638. 221.] RULES TO PEODUCE CERTAINTY IN ISSUE. 415 But where the matter is such that its affirmation or denial is essential to the apparent or prima facie right of the party pleading, there it ought to be affirmed or denied by him, in the first instance, though it may be such as would otherwise property form the subject of objection on the other sides Thus, in an action of trespass on the case, brought by a com- moner against a stranger for putting his cattle on the com- mon, per quod communiam in tarn amplo modohdbere no potuit, the defendant pleaded a license from the lord to put his cattle there, but did not aver that there was sufficient common left for the commoners. This was held on demurrer to be no good plea ; for though it may be objected that the plaintiff may reply that there was not enough common left, yet, as he had already alleged in his declaration that his enjoyment of the common was obstructed, the contrary of this ought to have been shown by the plea. (r) There is an exception to the rule in question in the case of certain pleas which are regarded unfavorably by the courts as having the effect of excluding the truth. Such, as it appears, are all pleas in estoppel (s) and the plea of alien enemy. It is said that these must be certain m every particular, which seems to amount to this, that they must meet and remove, by anticipation, every possible answer of the adversary. Thus, in a plea of alien enemy, the defendant must state not only that the plaintiff was born in a foreign country, now at enmity with the king, but that he came here without letters of safe conduct from the king;() whereas, according to the general rule in question, such safe conduct, if granted, should be averred by the plaintiff in reply, and need not, in the first in- stance, be denied by the defendant. 221. 4. It is not necessary to allege circumstances necessarily implied, (u) ' Thus, in an action of debt on a bond conditioned to stand to and perform the award of W.R, (r) Smith v. Feverell, 2 Mod. 6; 1 Freeman, 190, S. C. (s) Co. Litt. 352 b, 303 a; Dovaston v. Payne, 2 H. Bl. 530. (t) Casseres v. Bell. 8 T. R. 166. () Vynior's Case, 8 Rep. 81 b; Bac. Ab., Pleas, etc. (1), 7; Com. Dig., Pleader (E. 9); Co. Litt. 303 b; 2 Saund. 305 a, n. 13; Reg. Plac. 101; Sheers v. Brooks, 2 H. BL 120; Handford T. Palmer, 2 Brod. & Bing. 861; Marsh v. Bulteel, 5 Barn. & Aid. 507. 1 Expressio eorum quce tacite in- Rep. 205 ; Bloodgood's Estate, 26 W. fnnt nihil operatur. Re McHugh's N. C. 335 ; Osborne v. Clark, 60 Cal. Estate, 29 W. N. C. 575, 11 Pa. Co. Ct 622 ; Thorp v. Keokuk Canal Co., 48 416 KTJLES TO PRODUCE CERTAINTY IN ISSUE. [ 222. the defendant pleaded that "W. R,. made no award. The plaintiff replied that, after the making of the bond and before the time for making the award, the defendant, by his certain writing, revoked the authority of the said "W. R., contrary to the form and effect of the said condition. Upon demurrer it was held that this replication was good without averring that "W. R. had notice of the revocation, because that was implied in the words " revoked the authority" for there could be na revocation without notice to the arbitrator; so that if W. R. had no notice, it would have been competent to the defendant to tender issue " that he did not revoke in manner and form as alleged." (x) So if a feoffment be pleaded it is not neces- sary to allege livery of seisin, for it is implied in the word " enfeoffed." (y) 1 So if a man plead that he is heir to A., he need not allege that A. is dead, for it is implied, (z) 222. 5. It is not necessary to allege what the law will presume, (a) 2 Thus, in debt on a replevin bond, the plaint- iffs declared that, at the city of C., and within the jurisdiction of the mayor of the city, they distrained the goods of W. H. for rent, and that "W. H., at the said city, made his plaint to (x) Vynior's Case, 8 Rep. 81 b; Marsh v. Bulteel, 5 Barn. & Aid. 507, S. P. (y) Co. Litt. 303 b; Doct. PL 48, 49; 2 Saund. 305 a, n. 13. (z) 2 Saund. 305 a, n. 13; Com. Dig., Pleader (E. 9); Dal. 67. (a) Wilson v. Hobday, 4 M. & S. 125; Chapman v. Pickersgill, 2 Wils. 147; 1 Chitty, 226. N. Y. 253; Malcolm v. O'Reilly, 89 calculated to frighten an ordinarily id. 126; Jones v. Andrews, 10 Wall, gentle horse. Clinton v. Howard, 42 827. See Argumentativeness; Ambi- Conn. 294; Gibbs v. Daveis, 168 111. guity. 205. Equity rule is the same. Story, 1 Case v. Humphrey, 6 Conn. 180. Eq. PI., 452, n. ; Jele v. Lemberger, 2 The rule as to implied allegations 163 111. 338. This rule refutes the is the same in code and common-law claim that the common-law system states; it is a simple logical rule that was excessively strict and that every the allegation of a fact from which omission was fatal. An omitted alle- the other fact must follow is a sum- gation, though of an essential fact, cient allegation of the latter unless is not fatal, but may be aided by the matter is questioned by motion verdict. Post, p. 433; Henke v. or special demurrer; e. g., the "exe- Eureka Endowment Ass'n, 100 Cal. cution" of a note implies delivery. 429; Campbell v. Cross, 39 Ind. Smith v. White, 103 CaL 372. That 155; Bolton v. Cleveland, 35 Ohio- defendant placed object in highway, St. 319; Fry v. Bennett, 28 N. Y. and plaintiff's horse, which was gen- 324; Jaeger v. Hartman, 13 Minn, tie, was frightened by it, is equiva- 55; Bennett v. Clough, 1 Barn. & Aid. lent to alleging that the object was 463; Case v. Carroll, 35 N. Y. 385. 223.] KULES TO PRODUCE CERTAINTY IN ISSUE. 417 the mayor, etc., and prayed- deliverance, etc., whereupon the mayor took from him and the defendant the bond on which the action was brought, conditioned that W. H. should appear before the mayor or his deputy at the next court of record of the city, and there prosecute his suit, etc. ; and thereupon the mayor replevied, etc. It was held not to be necessary to allege in this declaration a custom for the mayor to grant replevin and take bond and show that the plaint was made in court; because all these circumstances must be presumed against the defendant, who executed the bond and had the benefit of the replevin. (5) So, in an action for slander im- puting theft, the plaintiff need not aver that he is not a thief, because the law presumes his innocence till the contrary be shown. (y a relaxa- tion of practice, fie given in evidence under the general issue. The relaxation here referred to is that formerly noticed, by which defendants are allowed, in certain actions, to prove, (e~) Vide supra, pp. 264, 265. (/) Vide supra, p. 439. (g) Vide supra, p. 312. (A) See Holler v. Bush, Salk. 394 (t) Anon., 12 Mod. 537; Saunders 1 Case, 513, 514; Lynett v. Wood, Cro. Car. 157; Birch T. Wilson, 2 Mod. 264. (fc) Supra, pp. 316, 317. 30 462 EULES TO PREVENT PROLIXITY AND DELAY, s [ 247. under this issue, matters in the nature of confession and avoid- ance, as, for example, in assumpsit, a release or payment. (I) In such cases the plaintiff (as formerly stated), (m) though allowed, is not obliged, to plead non assumpsit, but may, if he pleases, plead specially the payment or release ; and if he does, such plea is not open to the objection that it amounts to the general issue, (n) It is said that the court is not bound to allow this objection, but that it is in its discretion to allow a special plea amount- ing to the general issue, if it involve such matter of law as might be unfit for the decision of a jury, (o) It is also said that, as the court has such discretion, the proper method of taking advantage of this fault is not by demurrer, but by mo- tion to the court to set aside the plea and enter the general issue instead of it. (p) It appears from the books, however, that the objection has frequently been allowed on demurrer. As a plea amounting to the general issue is usually open also to the objection of being argumentative, or that of want- ing color, we sometimes find the rule in question discussed as if it were founded entirely in a view to those objections. This, however, does not seem to be a sufficiently wide foundation for the rule ; for there are instances of pleas which are faulty, as amounting to the general issue, which yet do not (as already observed) seem fairly open to the objection of argumentative- ness, (g) and which, on the other hand, being of the negative kind or by way of traverse, require no color. Besides, there is express authority for holding that the true object of this rule is to avoid prolixity, and that it is therefore properly classed under the present section. For it is laid down that " the reason of pressing a general issue is not for insufficiency of the plea, but not to make long records when there is no cause." (r) (0 Supra, p. 283. (m) Supra, p. 286. (n) Holler v. Bush, Salk. 394; Hussey v. Jacob, Garth. 356 (o) Bac. Ab., Pleas, etc., p. 374, 5th ed.; Birch v. Wilson, 2 Mod. 274. (p) Warner v. Wainsford, Hob. 127; Ward v. Blunt's Case, 1 Leon. 178. (g) Supra, p. 461. (r) Warner v. Wainsford, Hob. 127. See also Com. Dig., Pleader (E. 13). 2iS.] KULES TO PREVENT PROLIXITY AND DELAY. 463 RULE m. 248. Surplusage is to be avoided, (s) 1 Surplusage is here taken in its large sense, as including un- necessary matter of whatever description, (t] 2 To combine with the requisite certainty and precision the greatest pos- sible brevity is now justly considered as the perfection of plead- ing. This principle, however, has not been kept uniformly in view at every era of the science. For, although it appears to have prevailed at the earliest periods, it seems to have been nearly forgotten during a subsequent interval of our legal history; (u) and it is to the wisdom of modern judges that it owes its revival and restoration. 1. The rule as to avoiding surplusage may be considered first as prescribing the omission of matter wholly foreign. An example of the violation of the rule, in this sense, occurs when a plaintiff, suing a defendant upon one of the covenants in a long deed, sets out in his declaration not only the cove- nant on which he sues, but all the other covenants, though relating to matters wholly irrelevant to the cause, (a?) 2. The rule also prescribes the omission of matter which though not wholly foreign, does not require to le stated* Any matters will fall within this description which, under the va- (s) Bristow v. Wright, Doug. 667; 1 Smith, L. C. 1417; 1 Saund. 233, n. 2; Yates v. Carlisle, 1 Black. 270. (t) In its strict and confined meaning it imports matter wholly foreign and irrelevant. (M) See the remarks of Sir M. Hale, Hist, of Com. Law, chs. vii, viii. (a;) Dundas v. Lord Weymouth, Cowp. 665; Price v. Fletcher, id. 727. 1 " Whenever the whole allegation tails, or something out of which no can be stricken out, without affect- cause of action or defense could arise, ing the legal right set up by the party, Lee Bank v. Kitching, 11 Abb. Pr. it is impertinent and may be rejected 435. See Smith v. Holmes, 54 Mich, as surplusage. United States v. 105; Hagerty v. Andrews, 94 N. Y. Burnham, 1 Mason, 66." Thompson v. 195; Campbell v. Taylor, 3 Utah, 325. People, 23 Wend. 597. * Descriptive ivords. though unneo 2 The maxim of the law is "Utile, essary, may be traversed, and must per inutile, non vitiatur." Broom, be proved. Gridleyv. City* of Bloom- Max. 627; Shipherd v. Field, 70 111. ington, 68111. 47; Katzv. Moessinger, 438; Goff v. T., St. L. & R. G. Ry., 28 7 III App. 536; Leke's Case, Dyer, III App. 529. 365, 2 Saund. 207a, n. ; Dickensheets 3 As in Donovan v. H. & N. H. Ry., v. Kauffman, 28 Ind. 251. See fur- heretofore cited. The term "irrele- ther, Cahill v. Palmer, 17 Abb. Pr. vancy," as used in the code, is like 196, 45 N. Y. 478; Rollett v. Heiman, impertinence in chancery pleading, 120 Ind. 611. embracing prolixity or needless de- 464 EULES TO PREVENT PROLIXITY AND DELAY. [ 249. rious rules enumerated in a former section as tending to limit or qualify the degree of certainty, it is unnecessary to al- lege; for example, matter of mere evidence, matter of law, or other things which the court officially notices, matter coming more properly from the other side, matter necessarily implied, etc. 1 3. The rule prescribes, generally, the cultivation of brevity or avoidance of unnecessary prolixity in the manner of state- ment. A terse style of allegation involving a strict retrench- ment, even of unnecessary words, is the aim of the best prac- titioners in pleading, and is considered as indicative of a good school. 2 249. Surplusage cannot be taken advantage of by de- murrer. Surplusage, however, is not a subject for demurrer; the maxim being that utile, per inutile, non mtiatur? But when any flagrant fault of this kind occurs and is brought to the notice of the court, it is visited with the censure of the judges, (a) They have also in such cases, on motion, referred the pleadings to the master that he might strike out such matter as is redundant, and capable of being omitted, without injury to the material averments, and in a clear case will them- selves direct such matter to be struck out. And the party offending will sometimes have to pay the costs of the applica- tion. (5) 4 This is not the only danger arising from surplusage. Though traverse cannot be taken (as elsewhere shown) on (a) Yates v. Carlisle, 1 Black. 270; Price v. Fletcher, Cowp. 727. (6) Price v. Fletcher, Cowp. 727; Bristow v. Wright, Doug. 667; 1 Tidd. 552, 4th ed. ; Nichol v. Wilton, 1 Chitty Rep. 449, 450. 1 Marie v. Garrison, 83 N. Y. 14 v. Rogers, 15 Wend. 351; Petty v. 2 " I have observed that correctness Trustees, etc., 95 Ind. 280; Ashe v. in pleading and real law-knowledge Gray, 90 N. C. 137; Williams v. Sex- keep pace with each other." Judge ton, 19 Wis. 42; Russell v. Chambers, Smith, Smith's Rep. N. H. 525. 31 Minn. 54. While mere surplusage 3 See supra, note 2, p. 463. will not vitiate, yet where some state- 4 See Lowry v. Kinsey, 26 111. App. ment on the subject is necessary, 309; Bailey v. Lindsay, 35 Mo. App. and it cannot be wholly rejected, a 675; Wickersham v. Crittenden, 93 variance or failure to prove as laid Cal. 17; Terry v. Wenderoth, 28 W. is fatal. Lake E. & W. R. R. Co. v. N. C. 517; Murphy v. McGraw, 74 Christison, 39 111. App. 495; Sabine& Mich. 318; Cannon v. Lindsey, 85 E. T. R. Co. v. Brousard, 79 Tex. 617. Ala, 198, 7 Am. St. Rep. 38; Russell 249.] BITLES TO PREVENT PROLIXITY AND DELAY. 465 an immaterial allegation, (c) yet it often happens that when material matter is alleged with an unnecessary detail of cir- cumstances, the essential and non-essential parts of the state- ment are in their nature so connected as to be incapable of separation, and the opposite party is therefore entitled to in- clude, under his traverse, the whole matter alleged, (d) The consequence evidently is, that the party who has pleaded with such unnecessary particularity has to sustain an increased bur- den of proof, and incurs greater danger of failure at the trial. 1 Most of the principal rules of pleading have now been classed in reference to certain common objects which each class or set of rules is conceived to contemplate; and have been explained and illustrated in their connection with these objects and with each other. But there still remain certain rules, also of a prin- cipal or primary character, which have been found not to be reducible within this principle of arrangement, being, in respect of their objects, of a miscellaneous and unconnected kind. These will form the subject of the following section., (c) Supra, p. 340. (d) Vide supra, pp. 343, 344. i See cases supra, p. 463, n. 4. Cf. Kerr v. Topping (Iowa), 80 N. W. R. 321. CHAPTER XIII. OF CERTAIN MISCELLANEOUS RULES which relate either to the declaration, the plea ox pleadings in general, and are considered in that order. RULE I. 250. The declaration should commence with a recital of the original writ, (e) l [This rule is obsolete, but the rela- tion of the original to the declaration should be understood, and the text is preserved.] The commencement of the declaration, in personal actions, generally consists of a short recital of the original writ. Ac- cordingly, where the writ directs the sheriff to summon the defendant, as in debt and covenant, the declaration begins, " C. D. was summoned to answer A. B. of a plea," etc. On the other hand, where by the writ the defendant is required to be put by gages and safe pledges, as in trespass, and trespass on the case, the commencement is, " C. D. was attached to answer A. B. of a plea," etc. The declaration then proceeds farther to recite the writ by showing the nature of the par- ticular requisition or exigency of that instrument; as, for ex- ample (in debt), " of a plea that he render to the said A. B. the sum of pounds," etc. For farther example the reader may be referred to the different specimens of declaration given in the first chapter. From these it will appear that in debt, covenant, detinue and trespass, nearly the whole original writ is recited, but not in trespass on the case. The course was formerly the same in the latter action also; but as this led to an inconvenient prolixity, it was by rule of court (k) provided that in that and some other actions it shall be suffi- (e) Com. Dig., Pleader (C. 12). (fc) 1 Tidd, 369 (4th ed.); 1 Saunrt. 818, n. 3. l Yatter v. Pitkin (Vt), 29 AtL R. 370; Reed v. Lane, 61 Vt 481. 250.] CERTAIN MISCELLANEOUS RULES. 4C7 cient to mention generally the nature of the action; thus, "a plea of trespass upon the case," etc., and such summary form has accordingly been since used. In real and mixed actions the writ is, in general, not so form- ally recited. Thus, in the writ of right, the count begins, "A. B. demands against C. D.," etc. ; and the case is the same in forme- don and dower. (I) In general, however, it will be observed that this commencement comprises a repetition of the tenor of the writ, and in some actions, as in quare impedit, the writ is as formally recited as in actions personal. The recital of the writ is a form which the declaration has borrowed from the style in which it was entered on record; for the declaration itself, when actually pronounced in court, began, in general, with the words Ceo vous monstre, etc. (n) The recital of the writ is not considered as an essential part of the declaration ; and though the recital be erroneous the declaration is not therefore bad. (0} The rule under consideration, of course, does not apply where the proceeding is by bill; but in that case, also, the declaration has its proper formal commencement. The declaration by bill commences with the following for- mula: "A. B. complains of 0. D.," etc., and in the king's bench proceeds,- in general, to allege that the defendant is " in the custody of the marshal of the marshalsea of our lord the now king before the king himself," (p) viz. : that he is a prisoner of the court; but in case of an action against an attorney or offi- cer of the court, it alleges the defendant to be such attorney or officer, without stating him to be in custody, etc. In the common pleas the capacity of the defendant, as attorney or officer, is in a similar manner alleged; and in the exchequer the declaration commences by describing the plaintiff as "a debtor to our sovereign lord the king." Of the meaning of these different forms some explanation may be collected from the first chapter of this work, but it will be found more copiously in treatises which profess to consider at large the origin of the respective jurisdictions of the superior courts, (r) (I) See the forms of these counts in the first chapter. (n) See Appendix, note (75). (o) Com. Dig., Pleader (C. 12); 1 Saund. 318, n. 3; Helliott v. Selby, Salk. 701. (p) Com. Dig., Pleader (C. 8). (r) And see the forms of commencement by original and by bill in the different courts, given at large, 2 Chitty, 1-4; 1 Arch. 72. 468 CERTAIN MISCELLANEOUS RULES. RULE ILL [ 251. 251. The declaration should, in conclusion, lay damages 1 and allege production of suit. First, the declaration must lay damages. Impersonal and mixed actions (e) the declaration must allege, in conclusion, that the injury is to the damage of the plaintiff, and must specify the amount of that damage, (f) In personal actions there is the distinction formerly explained between actions that sound in damages and those that do not; (g) but in either of these cases it is equally the practice to lay dam- ages. There is, however, this difference: that in the former case damages are the main object of the suit, and are there- fore always laid high enough to cover the whole- demand; but in the latter, the liquidated debt or the chattel demanded being the main object, damages are claimed in respect of the detention only of such debt or chattel, and are therefore usually laid at a small sum. The plaintiff cannot recover greater damages than he has laid in the conclusion of his declaration. (A) 2 In real actions no damages are to be laid, because in these the demand is specifically of the land withheld, and damages are in no degree the object of suit. (e) But penal actions are an exception. (/) Com. Dig., Pleader (C. 84;; 10 Rep. 116 b, 117 a, b. (gf) Vide supra, p. 238. - (A) Com. Dig., Pleader (C. 84); Vin. Ab., Damages (R.); 10 Rep. 117 a, b. 1 Special damages must be specially alleged. Watkins v. Junker, 4 Tex. Civ. App. 629; Campbell v. Cook, 86 Tex. 630; Quincy Coal Co. v. Hood, 77 III 75; Home v. Sullivan, 83 id. 80. As to what are special damages, see Wood worth v. Woodburn, 20 111. 184; Roberts v. Graham, 6 Wall. 578; Ward v. Smith, 11 Price, 19; 1 Sutherland on Damages, 763. 2 This allegation is called the ad damnum clause. If the declaration shows a claim of damages greater than the verdict, the omission of an ad damnum is immaterial. Burst v. Wayne, 13 111. 599. After verdict the ad damnum may be increased by amendment to embrace the recov- ery. Brown v. Smith, 24 III 196; Tomlins v. Earnshaw, 112 id. 811. Or a remittitur nifiy be entered for the excess above the sum alleged. Crews v. Lackland, 67 Mo. 619; White v. Cannadee, 25 Ark. 41. Where juris- diction depends on the amount in- volved, the amount claimed in the complaint or declaration governs the jurisdiction. Ham den v. Merwin, 54 Conn. 418. 252.] CERTAIN MISCELLANEOUS BULES. 469 Secondly, the declaration should also conclude with the pro- duction of suit. [The reason for this rule having ceased, it is no longer required. The observations of the author have been transferred to the Appendix, note 88.] RULE V. 252, Pleas must be pleaded with defense, (y) Defense here signifies a certain form of words by which the plea is introduced. This form varies, in some degree, according to the nature of the action. In the writ of right, where the demandant claims on his seisin, it is thus: "And the said C. D., by E. F., his attorney, comes and defends the right of the said A. B. and his seisin when, etc., and all, etc., and whatsoever, etc., and chiefly of the tenements aforesaid, with the appurtenances, as of fee and right, etc., and says; " and then the matter of the plea is stated, (z) In a writ of right, when the demandant claims on the seisin of his an- cestor, it is thus: "And the said C. D., by E. F., his attorney, comes and defends the right of the said A. B., and the seisin of the said G. B. (the ancestor), when, etc., and all, etc., and whatsoever, etc., and chiefly of the tenements aforesaid, with the appurtenances, as of fee and right, etc., and says." (a) In formedon the defense is : " And the said C. D., by E. F., his attorney, comes and defends his right when, etc., and says." (J) The action of dower is an exception to the rule, and in this suit defense is not made. (. (c) Com. Dig.. Pleader (E. 32), (E. 33); Co. Litt. 303 a; Finch, Law. 859. (d) Vide supra, p. 333. (e) See the various examples of pleading given in the course of this work. (/) Vide supra, p. 335. (g) See Appendix, note (84). Bac. Ab.. Pleas, etc. (E.) 2. See 5 Mod. 146; Carth. 363; 1 Satt. 287. NOTES (22)-(24). APPENDIX. 523 the case of the defendant only ', and that in very few instances. See as to parol demurrer, Bac. Ab., tit. Infancy and Age (L.). Another plea which operates in suspension of the suit is that of aid prayer; as to which see Com. Dig., Aide (B. 5), (B. 6); Booth, 60; 2 Bos. & Pul. 384. Excommunication of the plaintiff is another plea in suspen- sion. See 1 Chitty, 450; Eeg. Plac. 179, 180. NOTE (22). See p. 181. A plea in abatement is called by Bracton exceptio ad "brew prosternendum; (c) and is described, about the same time, in French, as exception pur Irefe dbatre; (d) whence the words abate and abatement. Cassare was another word applied, as well as prosternere, to express the abatement of the writ ; (e) and from cassart is de- rived to quash, as to abate from abattre. NOTE (23). See p. 184. Originally, the pleas to the person were not considered as plea in abatement of the writ ; for they are classed by Bracton and others as distinct from the exceptiones ad breve prosternen- dum. And indeed at this day they are pleaded (as observed in the text), not as reasons for abating the writ, but for not answering; (f) and it seems, therefore, that they are improp- erly classed as pleas in abatement. In more modern times, however, they have been uniformly so ranked and consid- ered ; (y) and they have the same effect, and are subject to the same rules, with pleas in abatement properly so called. NOTE (24). Seep. 1ST. "We may here take occasion to notice two rules, not properly of pleading, but of practice, by which the use of dilatory pleas is considerably restrained. First, they must be verified by affidavit; or, at least, some (c) Bract. 481 b. (d) Britton, 48. (e) See Hengham's Summa. (/) Co. Litt. 188 a; Com. Dig., Abatement (L 12). And see the example, p. 185. <0) See Dock PL 1. 524: APPENDIX. NOTES (25), (26). probable matter must be shown to the court to induce it to believe that the fact of the plea is true. This is by 4 Ann, ch. 16, sec. 11. Secondly, they must be pleaded within four days inclusive after delivery or notice of declaration, unless the declaration be delivered or filed after term, or so late in the term that the defendant is not bound to plead to it in that term ; in both which cases the defendant may plead within the first four days, inclusive of the next term. This is bjr different rules of court. (A) NOTE (25). See p. 188. A plea in bar is called by Bracton, after the civilians, exceptio peremptoria. In the French of Britton it is described as an exception, pur barrer le pleintyfe, de sa demaunde. (i) It is ob- servable that the terms oarrer and oarre were in common use in the law-language of France in the year 1270, (&) which is about the same period when they first make their appearance in the English pleading. NOTE (26). See p. 188. Traverse is the most proper and ancient term. (1} In the modern language of pleading, however, deny is often substi- tuted for it ; and pleas in denial is a term often used instead of pleas fry way of traverse. The reason is that traverse is a word that also occurs in a more limited sense, being often applied to a particular form of denial, of which there will be occasion, in the course of this work, to speak ; and the word deny, as preventing confusion, is therefore usually adopted as the more convenient expression for the general idea. In this treatise, however, denial in general is called by its proper ap- pellation of traverse; and the particular kind of denial above mentioned is denominated a special or formal traverse. Any confusion is thus sufficiently avoided, and the regular and ancient terms of art are preserved. (A) 1 Tidd, 577; 2 Arch. Pract. 1, & (0 Britton, 92. (fc) Ducange, Gloss., verbo Barrse. (0 See 1 Chitty, 636, and the authorities there cited; Bae. Ab., Pleafl, etc. (H.); Ftncfa Law, 306, 397. NOTES (27)-(29). . APPENDIX. 525 NOTE (27). See p. 195. As a party who makes a statement of fact is said to plead, by way of distinction from demurring, so such statement or allegation is in strictness called a plea; and when opposed to the declaration is denominated a plea to the jurisdiction in suspension, in abatement or in far; at subsequent stages, a plea by way of reply, by way of rejoinder, etc., according to the stage at which it occurs. But as the name of plea is, in prac- tice, generally understood to refer to that particular answer m fact which the defendant opposes to the declaration, and to that only, the word pleading will (to avoid ambiguity) be substituted, in this work, to express a statement of fact in general, as opposed to a demurrer. NOTE (28). See p. 195. The civilians and canonists described their pleadings in a similar manner, viz., as intentio, exceptio, replicatio, etc. Dig., lib. M, tit. 1, sec. 2; Corv. Jus. Canon., lib. 3, tit. 32. NOTE (29). See p. 198. Nothing has been here attempted but ^.practical explanation of the manner of coming to issue. If considered in a view to its abstract principle, it will be found to consist in an applica- tion of that analytical process by which the mind, even in the private consideration of any controversy, arrives at the devel- opment of the question in dispute. For this purpose it is al- ways necessary to distribute the mass of matter into detached contending propositions, and to set them consecutively in array against each other, till, by this logical conflict, the state of the question is ultimately ascertained. This ranks, in the present day, among those ordinary logical operations which it is easier to practice than to define, and which it would be superfluous to attempt to reduce to scientific rule. It was, however, as applied to the purpose of forensic disputation, a very favorite topic with the ancient writers on dialectics and rhetoric, and there was no subject connected with these sci- ences on which they bestowed more elaborate attention. Status excogitandi, says Sigonius, atque eo probationes omnes 34 526 APPENDIX. NOTE (29). conferendi, artificium, in libris oratoriis, multis verbis est de- monstratum ; neque enim in aliis praeceptis, antiqui rhetores, tarn Grasci, quam Latini, plus studii aut opera3 consumpse- runt. (m) The question in controversy is described, among these writers, by the different terms xptvopevov, summa quass- tio, res de qua agitur, qua3stio ex qua causa nascitur, judicatio, and others of similar import, all expressive of the same gen- eral idea, though slightly distinguished from each other in their particular application, (n) "When this question was de- veloped, there was said to be a status or constitutio, causce. Of these status there were many classes, according to the differ- ent kinds of questions which might arise, involving not only the distinction recognized in our pleading between questions of fact and of law (status con jectur ales et legales\ but additional distributions in status finitivcB, translativce, and many others, corresponding with the various logical divisions under which the different subjects of civil dispute may be considered. As a specimen of this obsolete but curious learning, and, at the same time, as the best illustration of what is the natural prog- ress of the mind in effecting that development of which we have spoken, the following passage of Quinctilian deserves attention. In that part of his work which relates to the dis- positio or the art of oratorical division and arrangement, after noticing the importance of a prudent selection of the point of argument and a discreet statement of the general question, and observing that the choice should be determined by the nature of the case which the orator was to support, he proceeds: " I will explain my own method in this particular, which I attained partly by precept and partly by the natural deduc- tions of reason, and of which I never attempted to make a mystery. In all forensic controversies I took care, in the first place, to inform myself of all the different matters involved in the cause. I say in forensic controversies ; for, as to the disputes of the schools, the operation is unnecessary, as they consist merely in the discussion of a few questions distinctly discriminated at the outset as the subjects for declamation, and denominated #e//ara by the Greeks, by Cicero proposita. (m) Oar. Sigonius de Judiciis. Bee, also, QuinctiL, lib. 3, Ch. 6; Cie. In Topic., ch. 86; Ger. Vossius Lustit. Orat. OO QuiiictiL. et Cie., ubl supra. KOTE (29). APPENDIX. 527 After thus placing, then, the whole matter of the controversy distinctly in ray view, it was my habit to analyze it, as well on the part of my adversary as on my own. And first I applied myself to that which, though easily described, requires a pe- culiarly attentive performance, I mean I ascertained what case it was the object of either party to make, and by what allegations such cases might be respectively supported. "With this view, I began by considering what might be alleged by the plaintiff. This statement would necessarily either be ad- mitted or denied on the part of the defendant. If admitted, no question could at that stage arise. I therefore proceeded to consider what would be the defendant's answer; and to this I applied the same dilemma of admission or denial by the plaintiff. Accordingly, sometimes the matter of the answer would be admitted ; but at all events there would, at some period of the process, arise a contradiction between the par- ties ; and it is then that the question in the cause is first as- certained. For example, You killed such a man. Admitted. "We proceed. The defendant must now assign some reason for this act. It was lawful to kill him, as surprised in adultery with my wife. There is no doubt of the law; we must there- fore seek, in some other point, the subject of contention. The parties surprised were not committing adultery. They were. This, then, is the question, and is a question of fact" {conjectura i. e., status conjecturalis). " In some cases, how- ever, there might be a farther admission. They were in adultery ', but you had no right to kill him, for you were an exile, and in- famous person. And here arises a question of law. On the other hand, if, to the first allegation, you killed, it had been answered, / did not kill, the question had been ascertained at the outset. By this kind of process is the matter in dispute, or main question in the cause, to be investigated." (y jury, continually in- creased in favor from the time of Glanville, and at the date of Bracton's work had become the most ordinary method of deciding fact. (&) NOTE (35). See p. 234 The question of mere right has from the earliest period been decided by wager of Mattel, and at one time could be decided in no other manner. Afterwards, in the reign of Henry II., the assise or law of that monarch referred to in the last note gave the tenant in a writ of right the alternative of having this question tried either by wager of battel or a recognition by jurors to be selected by four knights; (I) while it ap- pointed for questions of seisin (as already mentioned) a rec- (K) See Co. Litt. 159 b. (i) Tune ex consensu ipsarum partium, tune etiara de consilio curios. Glan., lib. 13, ch. 2. (fc) The same account of the establishment of trial by jury Is given by Mr. Reeves, vol. 1, 177, 834, and is perhaps stated in no other work with sufficient precision. A careful perusal f Glanville and Bracton will leave no doubt as to its correctness. (I) Glan., lib. 2, ch. 7. 11; 1 Reeves, 125, 127. ; 536 APPENDIX. NOTE (36). ognition of a more ordinary kind ; and as the latter obtained the name of a recognition of assise, so the former was called, by way of distinction from it, the grand assise (magna assisa). The question of mere right from this time continued to be exclusively determinable by battel or the grand assise ; and either from its solemnity, or the difficulty that attended it in point of proof, (ra) was never allowed to be tried by a com- mon jury. NOTE (36). See p. 236. The possibility of being exposed to this disadvantageous method of decision, the wager of law, has long led plaintiffs to avoid the forms of action in which it is allowed. Accord- ingly debt on simple contract and detinue are much less fre- quently used than in ancient times, and have been nearly sup- planted by assumpsit and trover, which are forms of remedy respectively applicable to the same cases; but not admitting that mode of trial. The wager of law (vadiato legis\ which, under different names and in different forms, prevailed over all Europe in the middle ages, was fully established, not only among the Nor- mans but the Anglo-Saxons. The name, however, is clearly of Norman derivation ; for in the old law of Normand} r , lex sig- nified a mode of proof or trial, and vadiare was to give pledge to produce such proof or meet such trial. Thus, the Coustu- mier speaks of the lex apparens, the lex probdbilis, the lex sim- plex (otherwise called deraisind), as so many modes of decid- ing causes, (n) Now it appears, by the account given of the lex simplex, that it was equivalent to our wager of law; (o) and that the party who adopted this proceeding was said vadiare legem simplicem, or, more shortly, vadiarelegem^ (p} whence undoubtedly the term vadiatio legis, or wager of law, as used in the English courts. Though this deduction of the name be clear and indisputable, Lord Coke (whose derivations do not (TO) See Bract. 818 b. (n) For example, it Is said: Sclendum est quod omnls querela de mobill possessions, cum res in causa deducta, decem solidorum usualis monetse precium non excedat, per legem simplicem habet terminari. Si vero dictum excedit precium, per legem deducitur apparentem. Grand Coust. Ixxxvii. And again: Est quaedam lex quse probabilis sive monstralis in laicali curia nuncupatur. Ibid., cxxv. See, also, Ducange Gloss., verbo Lex, where it appears that the wager of battel was sometimes called lex duelli. (o) Grand Coustum., Ixxxiiii, cxxvi. (p) Ibid., cxxvi. NOTE (37). APPENDIX. 537 always satisfy the antiquarian) gives the following origin of the phrase, in which he is followed by Blackstone : " It is called wager of law, because of ancient time he put in surety to make his law at such a day ; and it is called making of his law, because the law doth give such a special benefit to the defendant, to bar the plaintiff forever in that case." (g) NOTE (37). See p. 236. Such of the different modes of trial now in use as are of extraordinary and limited application are the relics of a very ancient system of deciding fact, established before the full introduction of trial by jury, (r) Though it would be foreign to the present purpose to attempt to explain fully the meaning and policy of this curious system, yet there is one general ob- servation which throws so much light on that subject that it may, without impropriety, be here introduced. The observa- tion relates to the defective state, during those barbarous ages when the foundations of this system were laid, of the proper and rational sources of judicial proof. In times when the arts of reading and writing were comparatively rare, and when parchment had not yet been superseded by the inven- tion of paper, written documents were of course by no means so frequently in use as the occasions of life would require, even after making due allowance for the comparative paucity, at that period, of commercial transactions. This circumstance at once increased the necessity for resorting to living wit- nesses, and, at the same time, by rendering perjury less open to conviction, must have tended to diminish the security of that mode of proof. Whatever the cause, the fact is certain that perjury was at this era a crime of peculiarly frequent occurrence, and, consequently, oral testimony a species of evidence of the lightest and most doubtful kind. It seems evident, too, that in a scanty population there must have been considerable less publicity than in the present day in almost every kind of occurrence ; and that while witnesses were, on the one hand, less to be depended upon, so, ou the (g) Co. Litt. 294 b, 295 a. And see 3 Bl. Com. 341. (r) Considerable insight into this ancient system of trial may be obtained by au ttttcnt- ive perusal of the work of Glanville, the earliest and best authority. It is a subject, how ever, that has never yet been thoroughly elucidated. 538 APPENDIX. NOTE (37). other, they were less easily to be found. In this state of things it is not surprising that attempts should be made to strengthen this, the ordinary mode of judicial investigation, by such corroborative tests as the opinions and manners of the times might approve, or to supply the want of it by other kinds of probation. Thus the oath of the defendant himself, in opposition to the claim of his adversary, would, under such circumstances, naturally have but little weight. At the same time he might be unprovided with writing or witness. He was, therefore, by way of suppletory expedient, required to support his own oath by wager of law, that is, by the adduc- tion of many other persons as his compurgators, who, though unacquainted with the transaction itself, knew the character of the party and had sufficient confidence in it to swear that they believed his assertion true. 'Thus, too, when this proof by wager of law was, from the importance of the question or for other reasons, deemed inapplicable, and that by wit- nesses alone considered insufficient, resort was often had to judicial combat, as the best means that offered itself for de- ciding between opposite assertions, (s) With respect to the great prevalence of perjury at this period, the latest and one of the most able and accurate de- lineators of the middle ages thus notices that feature in the morals of the day: " One crime, as more "universal and characteristic than others, may be particularly noticed. All writers agree in the prevalence of judicial perjury. It seems to have almost in- variably escaped human punishment; and the barriers of su- perstition were in this, as in every other instance, too feeble to prevent the commission of crimes. Many of the proofs by ordeal were applied to witnesses as well as those whom they accused ; and undoubtedly trial by combat was preserved in a considerable degree, on account of the difficulty experi- enced in securing a just cause against the perjury of witnesses. Robert, king of France, perceiving how frequently men fore- swore themselves upon the relics of saints, and less shocked (s) In the time of Glanville the wager of battcl was applied not only to the question of mere right, but to a great variety of other cases; and was one of the most general and ordinary modes of deciding fact. Thus, he says: Probari solet res debita ex empto, vel ex commodato, generali probandi modo in curia, scilicet per scriptum vel per duellum. Glan., lib. 10, ch. 17. .NOTE (38). APPENDIX. 539 apparently at the crime than at the sacrilege, caused an empty reliquary of crystal to be used that those who touched might incur less guilt in fact though not in intention. Such an anec- dote characterizes both the man and the times." () NOTE (38). See p. 254 1 The only material authorities on the subject of pleading of date prior to the reign of Edw. I. are the treatise of Gran- ville, in the time of Hen. II. ; that of Bracton, in the latter end of the reign of Hen. III. ; and the Placitorum Abbrevia- tio, which contains extracts from the Records from Ric. I. to Edw. II. inclusive. From these authorities it would appear that the manner of pleading was extremely imperfect, and many of the most important rules of the science either un- known or but partially observed in practice so late as the end of the reign of Hen. III. On the other hand, the very earliest of the Year-books (which begin with the reign of Edw. II.) exhibit proofs that the pleading was by that time in a com- paratively perfect state. It is therefore that the author has been led to consider the reign of Edw. I. as the era at which the manner of allegation may be said to have been first method- ically formed and cultivated as a science. It would be easy to produce numerous proofs that the pleading was very imperfectly regulated till the end of the reign of Hen. III. But the following will suffice: Glanville gives scarcely any rule that can strictly be con- sidered as a rule of pleading, though he is copious on subjects which would have led him to notice such rules had they ex- isted, (u) In the time of John we find instances of pleas which neither traverse nor confess. Thus, in answer to a fine, it is pleaded quod si finis ille factus fuit per deceptionem et fraudem, fac- tus, fuit, etc. (a?) Again, where a defendant had pleaded a deed made by the father of the plaintiff, the plaintiff replies, quod cartam quam profert sub nomine patris sui, neo dedicit, nee concedit, etc., sed qualiter carta ilia facta fuit vel a quo, sem- (t) Hallam's View of the State of Europe during the Middle Ages, voL 2, p. 456. () Glan., lib. 12, ch. 14 fcc) Plac. Ab. 38; Bedd., rot. 4. 1 Note referred to in 1 Chitty, PL, ch. & 540 APPENDIX. NOTE (38). per postquam facta fuit, presentavit pater ejus personam, etc. (y) In the same reign numerous examples of the fault of du- plicity^ i. ) For example, except io judicis non tuiexceptio falsi procurator if. Bract. 400 a. NOTE (39). APPENDIX. 541 mental rules of the present system are noticed by this author. Even the term " issue " does not occur, and, instead of it, is used the civil law term litis contestatio, (c) a phrase by no means exactly parallel, though expressive of the same general idea. The rule against duplicity, indeed, is given, but in such a form as to raise a doubt whether its true extent and object were understood by the writer. Si plures peremptorise (ex- ceptiones) actionum concurrant, unam debet tenens proponere et probare, etc., quia si tenens cum duas peremptorias propo- neret vel plures exceptiones, in probatione unis deficeret, posset recursum habere ad alias, et probare, sicut posset se pluribus laculusdefendere; quod esse non debet, cum ei sufficere debeat tantum probatio unius. (d) Again, it may be observed that neither the rule obliging the pleader to traverse or confess, nor that against argumentative pleading, appears to have been perfectly established in the time of this author. Thus, he mentions it as one of the pleas to an appeal of rape : Quod anno et die quo hoc fieri defuit, fuit alibi extra ragnum, vel in provincia, in tarn remotis partibus, quod verisimile esse non poterit quod hoc quod ei imponitur, fieri posset per ipsum. (e) And again, among the pleas to an assise, the following is men- tioned: Eiberum tenementum habere non potuit, quia non tenuit tenementum illud nisi ad terminum annorum, etc. (f) NOTE (39). See p. 255. The issue is thus defined by Lord Coke : " Issue, exitus, a single, certain and material point issuing out of the allegations or pleas of the plaintiff and defendant, consisting regularly upon an affirmative and negative to be tried by twelve men;" (g) and thus by Heath, C. J. : "that point of matter depending in suit whereon the parties join, and put their cause to the trial of the jury." (K) These definitions, besides being too narrow, as extending only to questions of fact and to such questions of fact as are referred to one particular (c) Bract. 373 a, 172 a, 435 b. (d) Bract. 400 b. Something seems to be omitted In tnid pa&fege, which renders its construction imperfect. (.e) Ibid. 148 a. (/) Co. Litt. 126 a. (g) Bract. 268 a. (h) Heath's Maxima, cb. rr. 35 542 APPENDIX. NOTE (40). mode of trial, viz., that by jury, seem to be also defective in clearness and precision. The definition of the issue by Mr. Justice Blackstone is as follows: "When, in the course of pleading, they come to a point which is affirmed on one side and denied on the other, they are then said to be at issue." (*) Even this does not appear to be perfectly accurate, for it would include a point contradicted by protestation, (k) The definition by Finch is more unexceptionable. " An issue is, when both the parties join upon somewhat that they refer unto a trial, to make an end of the plea " (i. e. t suit). (1} NOTE (40). See p. 257. We find in the Assises de Jerusalem (as to which vide supra, p. 454) the following directions to the pleader on the subject of brevity and precision: As plus brief ves paroles que il pora, die sa parole car les plus briefves paroles et entendaument dites, sont meaus entendues et retenues et recordees et jugees, et quant mestier, que les autres: i. 'but without the formulas. (r) Bivoluzioni d'ltalia di Denina, vol. 1, p. 316. (*} J. G. Heinecc. El em. Jur. Germ., lib. Ill, tit. rv, sec. CLvm. 54:4 APPENDIX. NOTE (43). magnam assisara, vel defenderit per Duellum. (f) And in an- other place: Non tenetur aliquis ha3res de facto scilicet de disseysina antecessoris sui, quoad pcenam disseysina3, licet teneatur ad restitutionem ; et hoc nisi Us contestata fuerit cum suo antecessore, etc. (u) It may be worth while to observe here that Blackstone's idea of the meaning of this term of the civil law is inaccurate. He considers it as " a general assertion that the plaintiff hath no ground of action." (a?) This, however, is not the sense in which it is properly or commonly used in the civil law, though it may occasionally have that meaning. It is clear that its usual signification is exactly that in which it is used by Brae- ton, viz., the development of the point in controversy, or, as it is now expressed, the coming to issue. " In common par- lance, denying the truth of the defendant's exception, or, in- deed, whenever parties come to direct affirmance on one side and denial on the other, is called a contestation of suit." (y) Litis contestatio non aliud est quam intentio actoris, et con- tradictio seu depulsio rei ; adeo ut ex actione et opposita per- emptoria exceptione, consurgat; et comprehendat illud in quo tota controversia consistat. (s) And Fortesque is express to the point ; for, in treating of the method of proof in the civil law, he says : Si coram judice contendentes ad litis perveniant contestationem, super materia facti, quam legis AngliaB, periti, exitum placiti (the issue) appellant, exitus hujusmodi veritas, per Leges Civiles, testium depositione, probari debet. (a) NOTE (43). See p. 261. That juries were originally composed of witnesses, or per- sons cognizant of their own knowledge of the fact in question, seems to be sufficiently proved by the following authorities r In an assise of darreign presentment, in the reign of Rich- ard L, the jurors find a special verdict in these terms: Assisa dicunt quod nunquam viderunt aliquam personam pra3sentari ad ecclesiam de Duneston, sed semper tenuerunt person, per- (f) Bract. 373 a. (u) Ibid. 172 a. (2) 3 Bl. Com. 296. (y) Brown's Civil Law. (*) Voet. ad Pandect., lib. V, tit. i, sec. 144. (a) Fortescue de Laud., ch. 20. NOTE (4:4). APPENDIX. 545 sona in personam, ut de patre in filium, usque ad ultimam per- sonam quae ultimo obiit. (5) In an assise of novel disseism, in the same reign, there is the following entry: Assisa venit recognitura si Adam de Greinvill et "Willielraus de la Folie dissaisaverunt injuste et sine judicio Willielmum de "Weston de libero tenemento suo in Suto, post primam coronationem Domini Eegis. Juratores dicunt quod non viderunt unquam alium saisitum de tene- mento illo, nisi "Willielmum de la Folie. Et quod nesciunt si Willielmus de la Folie dissaisisset eum inde vel non. Consid- eratum est quod alii Juratores eligantur qui melius sdant rei veritatem. Dies datus est eis ad diem Mercurii. (c) In the reign of John there is the following entry : Jura- tores dicunt quod ecclesia Sanctse Helenas de G. nunquam fuit capella pertinens ad acclesiam Sancti Michaelis super Wir quaa est de donatione Dom Regis ; sed semper temporibus suisjudi- caverunt illam esse matricem ecclesiam. (d) So, upon a question whether the plaintiff, claiming to be tenant by the curtesy, had issue by his wife, Bracton says : Si dicant Juratores quod fiene mderunt eum seysitum et postea ejectum per tenentem, sed de aliquo puero nihil sciunt, quia mater obiit in pariendo extra comitatum, in remotis, quia eorum veredictum insufflciens est, etquia ipsi ignorare possunt ea quozfiunt in remotis, recurrendum erit ad comitatum, et ad vicinetum ubi mater oliit; et ibi facta inquisitione de veritate, terminetur negotium. (e) And see 2 Keeves, 270, where the doctrine in support of which these authorities are cited is distinctly laid down, NOTE (44). See p. 263. The author being the first who has attempted to develop the principles on which the system of pleading is founded, he is unable to cite any direct authority, either for the enumeration contained in the text of the objects which that system con- templates, or even for the account there given of the proper- ties or qualities required in the issue. (6) Plac. Ab. 3 Norfolc. (c) Plac. Ab. 11 Wiltesir. (d) Plac. Ab. 94; Lane., rot. 3. (e) Bract. 216 a. 546 APPENDIX. NOTE (45). Yet passages, sufficient to justify both the one and the other, may be easily collected from the books. First, as to the properties of the issue. Lord Coke defines the issue to be a "single, certain and material point, issuing out of the allegations or pleas of the plaintiff and defendant." (f) He considers these properties, therefore, to be of the very definition of the term ; though, perhaps, they are more properly incidental to the issue than of its essential nature. So, it is laid down in Corny ns' Digest, that the issue must be upon a material point," (g) and " must be upon a single and certain point." (A) So it is said by Lord Coke that the law " prefers and favors certainty, as the mother of quiet and repose, to the intent that either the court shall adjudge thereupon if the plaintiff demurs or that a certain issue may be taken upon one certain point" etc. (i) So, in the Year-books we find the court interrupting the pleader with this remark : " Vous dites chose que veot avoir deux issues: tenez vous al tine." (&) With respect to the doctrine that the system of pleading contemplates the different objects enumerated in the text, and that these form the secret foundation of most of its principal rules, the author must refer for his chief authority to the in- trinsic evidence arising from the consideration of the rules themselves, as subsequently explained in this work. In treat- ing, however, of these different rules, he will be able occasion- ally to offer some citations from the books, in a great measure confirmatory of the same view. NOTE (45). See p. 267. The general effect of these statutes relative to special de- murrer is well expressed by Lord Hobart, who says, in refer- ence to the 27 Eliz., ch. 5 : " The moderation of this statute is such that it does not utterly reject form, for that were a dishonor to the law, and to make it, in effect, no art, but re- quires only that it be discovered and not used as a secret snare ( /) Co Litt. 126 a. (g) Com. Dig., Pleader (R. 8). (ft) Com. Dig., Pleader (R. 4). (f) 10 Rep. 90 a. (k) 1 Ed. 2, 14. NOTES (46), (47). APPENDIX. 547 to entrap. And that discovery must not be confused and ob- scure, but special ; therefore it is not sufficient to say that the demurrer is for form; but he must express what is the point and specialty of form that he requires." (I) NOTE (46). See p. 276. It is true that in the writ of right the mise on the mere right (as to which see pp. 189, 287) is usually considered as the gen- eral issue ; and in dower that name is often given to the plea of ne unques seisie que dower. But though these pleas resem- ble the general issues in their frequent use and extensive ap- plication, they appear not to fall within the strict definition of that term, as they deny neither the whole nor the principal part of the count. In fact, though they tender a kind of issue, they do not contain, in terms, any denial or traverse of the count, and are therefore anomalies or exceptions in the sys- tem of pleading. The reason is, perhaps, to be found in the great antiquity of these actions, the writ of right and dower, which were in full use at least as early as the time of Glan- ville a period considerably anterior to the complete estab- lishment of the doctrine of issue, and of the rules by which it is produced. It is a dictum of Ashurst, J., that there is no general issue in quare impedit; (m) but this seems not to be accurate, as ne disturba pas is evidently in the nature of a general issue and is considered as such in many of the books. NOTE (47). See p. 291. Where the plaintiff alleges a seisin in fee in his father, the lessor, from whom he claims by descent, the defendant has the option of traversing either that at the time of making the lease tne father was seised in fee, or that the reversion in fee belonged to the father after making the lease, or that the reversion descended to the plaintiff ; for all these allegations are contained in the declaration, and the denial of any of them is a sufficient answer. () (I) Hob. 232. (m) 3 T. R. 158. fr) 2 Wils. 145. 54:8 APPENDIX. NOTES (48), (49). NOTE (48). See p. 297. Mr. Reeves, in his able History of the English Law, has treated of the origin of special traverses, but not in such a manner as to form any exception to the remark made in the text ; for his account relates rather to the manner in which they were invented and introduced than to their use and object. (0) NOTE (49). See p. 299. Our earliest records present many instances of what may be considered as special traverse in a crude and imperfect form. As these tend to illustrate the origin and meaning of the regular formula afterwards adopted and confirm the views taken in the text of the reasons and manner of its in- troduction, a few specimens shall here be inserted. In an assise of mortancestor, the tenant pleads quod terra ilia pertinet ad ecclesiam suam, quam habet ex dono Regis Ricardi et ecclesia inde est seisita, etc. The plaintiff then denies the seisin of the church, in this form : Robertus dicit quod pater suus inde fuit seisitus in dominico suo, die qua Rex Ricardus illam ecclesiam dedit prsedicto Herberto; ita quod ecclesia ilia tune non fuit seisita, nisi de serviciis illius terras, (p) In trespass for entering the plaintiff's court and taking away his ward, John, the defendants deny the trespass, but add an explanation: Dicunt quod curiam praedictam non ingressi fuerunt, nee praedictum Johannem ibi ceperunt, etc. Sed verum volunt dicere; quod ipsi fuerunt versus Oxon, et tune viderunt praedictum puerum, et puer percepit quod prae- dicta Isabella (one of the defendants) fuit mater sua, et secu- tus est earn, usque domum suam, et adhuc moram facit cum e& ; sed ipsi eum non duxerunt, etc. (q) On the circumstances so disclosed the court decide that the defendare, in point of law, is guilty of taking away the ward. In trespass for fishing in the plaintiff's libera piscaria, the defendants, instead of generally denying the trespass, plead (o) 8 Reeves, 432. (p) Plac. Ab. 44; Staff., rot 6 (temp. Johan.). () Plac. Ab. 134; Berk., rot. 16 (temp. Hen. 8}.. NOTE (50). APPENDIX. 549 that they fished there, as in a fishery where their ancestors and themselves had fished as of their common of fishery, ei non in propria piscarid et liberd ipsius Nicholai. (r) NOTE (50). See p. 300. The principle on which the dbsque hoc was introduced is well illustrated by the following case from the Year-books. In a writ of account brought against a woman as guardian in socage, she pleaded " that the ancestor of the infant held of the defendant by service of chivalry, and that, therefore, she took the infant as guardian in chivalry," and prayed judg- ment. To this it was objected, " That is no plea, unless you go on to say, without this, that he held in socage; for your plea at present is merely argumentative" The plea was then proposed in this form : " He held the land of us by service of chivalry without this, that we occupy the land as guardians in socage." To which it was objected, " Your plea is still no plea ; you ought to say, Without this, that he held in socage' for though the defendant occupy the land as in her own right, she shall still be charged, under these circumstances, as guard- ian in socage." On this the defendant took the following issue : " That he held ly service of chivalry, without this, that he held in socage" (s) With respect to the wording of this formula, dbsque hoc quod, it may be observed that dbsque hoc quod, and sine hoc quod (in the record), and sans ceo que (in the viva voce plead- ing), were used as common terms of denial at a very early period. Thus, as early as the fifteenth year of John, we find the phrase, sine hoc quod, so occurring, in the Placitorum Ab- breviatio. (t) They were not, however, originally appropriate (as the parallel English words, " without this that," now are) to the case of a special traverse ; for they were sometimes used where the denial was not of that kind ; and, on the other hand, in cases of special traverse, we sometimes find a substi- tution of other synonymous expressions, such as et non. (u) (r) Plac. Ab. 136; Buck. (temp. Hen. 8). () 10 Hen. 6, 7. (t) Plac. Ab. 90; Ebor., rot. 83 (temp. Johan.). (w) Plac. Ab. 136; Buck, cited supra. 550 APPENDIX. NOTES (51)-(53). NOTE (51). See p. 266. Color a rhetoribus appellatur, probabilis alicujus rei causa r qua quod falsura aut turpe est, velamus. (a?) And the following passage in Juvenal will readily recur to the reader's recollection : Quis color, et quod sit causes genus, atque ubi summa Quaestio quse veniant diversa parte sagittse, Scire volunt omnes ; mercedem solvere nemo, (y) See the observations formerly made on the degree of con- nection which the method of pleading seems to have with the rules of the ancient logic and rhetoric, supra, note (29). NOTE (52). See p. 313. The same quality, of admitting an apparent right in the opposite party, belonged to the pleadings in the Roman law. Interdum evenit ut exceptio quas prima facie justa videtur } tamen inique noceat; quod cum acciditj alia allegatione opus est, adjuvandi actoris gratia, quae replicatio vocatur; quia per earn replicatur, atque resolvitur jus exceptionis. Rursus interdum evenit, ut replicatio quaB prima facie justa QS\,, inique noceat quod cum accidit, alia allegatione opus est, adjuvandi rei gratia, qua duplicatio vocatur. Et si rurus ea prima facie justa videtur, sed propter aliquam causam, actori inique noceat, rursus alia allegatione opus est, qua actor adjuvetur; qua& dicitur triplicatio. (z) NOTE (53). See p. 319. The reason of the fiction of color is, in some measure, ex- plained in Doct. and Stud. 271 ; and the explanation, as far as- it goes, is conformable with the account given in the text. la this, and in most of the treatises, indeed, color is said to be necessary, in a view to prevent the plea from amounting to the general issue. It will, however, appear in a subsequent part of this work (a) that this is, in fact, only an imperfect way of expressing the same doctrine that is laid down in the text. (a;) Turneb. in notis ad Quinctil. (I/) Juv. Sat. vii. (z) Inst., lib. iv, tit. xiv. (a) See pp. 461-2. NOTE (54). APPENDIX. 551 It should also be observed that Mr. Reeves assigns as a motive, with the ancient pleaders, in giving color, and, indeed, as the secret origin of the practice, the wish to interpose delay, by preventing the more summary decision which the general issue would produce. (5) NOTE (54). See p. 323. This important rule, " that every pleading is taken to admit such traversable matters alleged on the other side as it does not traverse," appears not to have existed in the civil law. "Non utique existimatur confiteri de intentione, adversarius quo cum agitur, quia exceptione utitur," (c) " Non ad effec- tum exceptionis pertinet, quod reus excipiens, hoc ipso fateri videretur de intentione actoris. (d) On the other hand, we find it established in the practice of the courts of Normandy. For it is laid down in the Commentaires de Terrien : Quand les parties precedent, 1'un afferme faicts; si la partie centre qui les faicts son qffermez, n'en donne neance, les faicts affermez, demeurent pour confessez. (e) And it may be observed here, that the analogous principle by which a demurrer is held to admit matters of fact, also prevailed in the Norman law. Thus it is laid down in the same work : II est defendu de dire je denie vostre faict, et neantmoins je le defens; qui est a dire que quand prouve seroit, je le soustiens impertinent. Et se faut arrester a 1'une des fins (that is, the party must make his election of one of these issues], c'est a dire, ou a le nier (au quel cas s'il est prouve, encores qu'il soit impertinent, le prou- vant gaigne sa cause), ou a le defendre et soustenir qu'il est impertinent, et n'infere la conclusion du demandeur (au quel cas le faict demeure pour cognu\ ou a soustenir que le faict qu'on afferme au contraire, est plus pertinent. Au quel cas aussi les faicts demeurent pour cognus d'une part et d'autre ; et s'assiet le jugement de droict sur la pertinence ou imperti- nence des dits faicts. (f) (6) See 3 Reeves, 24. (c) Dig., lib. 44, tit. 1, sec. 0. (d) Voet. ad Pandectas. (e) Commentaires de Terrien, 1654, liv. Ix, ch. zzvtt. (/) Comment, de Terrien, Ibid. 552 APPENDIX. NOTES (55)-(57). NOTE (55). See p. 333. It may be observed that the question for decision by the grand assise is not properly an issue' for it is not in the form of a traverse or negative on one side, and affirmative on the other, but of an alternative proposition, " whether the tenant has greater right to hold, etc., or the demandant to have," etc. And for the same reason the tenant, in putting himself upon the grand assise, cannot strictly be said to tender issue, though the two proceedings are analogous. Accordingly, the term issue is not generally applied to this case, but the word mise is substituted ; and the tenant who pleads in this man- ner is not said to tender an issue, but to join the mise; (g) the word mise being, apparently, derived from mettre, and having allusion to the words "puts himself on the grand assise," etc. The truth is that this form of question was established in practice as early as the time of Glanville, **. e., before the doc- trine of issues was well founded, (K) and is a relic of an earlier system than that to which the ordinary issues belong. Vide supra,) note (46). NOTE (56). See p. 347. In the report of the case in Carthew it seems to be sup- posed that duplicity is, in general, no objection to pleas in abatement; but this is not law. (i) The mistake probably originated in a misapprehension of what is said by Lord Coke ; (&) but what he says evidently applies not to duplicity in its proper sense, but to the use of dilatory pleas, succes- sively in their proper order, which, as will be hereafter seen, (Z) the rules of pleading allow. NOTE (57). See p. 356. This rule against double pleading (peculiar at the present day, it is believed, to our own country) is not referable to the sources of the civil or canon law, in both of which the defend- ed Finch. Law, 898. (fc) See Qlan., lib. 2, chs. 8, 11. (0 See Bac. Ab., Abatement (P.). (*) Co. Lltt. 804 a. (I) See p. 178. NOTE (57). APPENDIX. 55g ant was allowed to use as many exceptions as he pleased, (m) Nor has its origin been hitherto traced. It may not, there- fore, be unacceptable to the reader to be informed that this rule, to a certain extent at least, very anciently obtained among the pleaders in Normandy, and was considered as a peculiarity in their plan of allegation. In the Commentaires de Terrien we find the following passage : En Normandie 1'en ne plaide qu' & une fin, etc. (i. e., a single issue}. And after- wards: De la regie dessus dite qu'on ne plaide qu' a une fin, s'ensuit, que combien que de disposition de Droit (i. e., of the civil law") nullus pluribus defensionibus uti prohibeatur, ton- tesfois cette regie souffre limitation par nostre usage et pra- tique, en ce qu' on ne pent user de defense de fait denie, et de fait defendu, (n) etc., that is, a party cannot at once plead and demur to the same matter. After the proofs, given in some of the preceding notes, of the derivation of so much of our judicial system from that of our continental neighbors, the reader will perhaps have no difficulty in adjusting between the two nations the priority of claim to the regulation now in question. It is farther observable that this rule seems to have been unknown in England (at least not observed in practice) up to the date of Bracton's treatise, for it is not mentioned in the work of Glanville; and during the whole interval between these two authors, the Placitorum Abbreviatio abounds with instances of the use of several pleas to the same matter. (0) So far with respect to the origin of this rule. With respect to its principle or object, it was that of avoiding several issues. Thus, in the first year of Ed. II., the court interrupt the pleader with this remark: Yous dites chose que veot avoir deux issues tenez vous al une. (p) So in the same year a similar admonition occurs: II covient que vous tenez al une, par chescun de eux prent diverse issue, (q) Again, in the (m) Qul excipit, non propterea confitetur agentis intentionem, cum eidem non solum imam, sed et plures exceptiones etiam contrarias, proponere liceat; quas, si legitimse fuer- unt, si judex non admiserit potest appellari; judex vero punitur. Corv. Jus. Canon., lib. 3, tit. 82. Pluribus defensionibus uti pennittitur. Dig., lib. 44, tit. 1, sec. 5. Nemo prohibe- tur pluribus exceptionibus uti, quamvis diversse sunt. Ibid., sec. 8. (n) Comment, de Terrien, liv. ix, ch. xxviL (o) See Plac. Ab., 8 Hertf., rot. 26; 9 Suff., rot. 22; 48 Line., rot. 7; 60 Buck., rot. 8; KH Sussex, rot. 22; 92 Line., rot. 14 Vide supra, note (38). (p) 1 Ed. 2, 15. (q) Ibid, 8. 554 APPENDIX. NOTE (58). reign of Ed. III., one of the judges asks : Si jeo port un assise devers vous, et vous dites que vous n'aves rien sinon a terme d'ans, et puts dites ouster que la terre est auncien demesne, averes vous cestes deux plees? quasi diceret non: et la cause est pur ceo que deux issues purroient estre pris sur les plees. (r) As for the reason why several issues were thus avoided by the early pleaders, it was no doubt the wish to abbreviate and simplify as much as possible the process of tho legal con- tention. While the explanation of the rule appears to be thus simple, it is not easy to account for the fantastic illustration of its meaning given by Bracton, as cited in a former note, (s) In- deed, it may be observed that the reasons offered for it by late writers, though less quaint, are not quite satisfactory. Thus, it is said in Bacon's Abridgment: (t) "The reasons why duplicity in pleading is a fault are that, the party being effectually barred by one single point, it is unnecessary and vexatious to put him upon litigating any other; and though he might take issue on any one point, yet must he be at a loss which the material point is, so as to traverse the same and thereby put an end to the cause ; whereas, the party pleading such double matter must be presumed conusant of his own strength, and therefore ought to put his defense on that single point which will put an end to it. Besides, the jury ought not to be charged with a multiplicity of things, when finding any one of thorn contrary to their evidence lays them liable to the severity of an attaint." Another writer gives as the reason why a party is confined to one matter of defense, " that the twelve men are commonly rude and ignorant, and so, consequently, not proper to be troubled with too many things at once." (u) NOTE (58). See p. 357. On this point of practice, viz., the joinder of different de- mands in the same action, it may be worth remark that the canon law differed from the imperial institutions. (r) 40 Ed. 3, 45. <) See note (38). of collateral conditions, how pleaded, 423. PERJURY remarks on prevalence of, 538. PERSONAL ACTIONS distinct from personal right of action, 91. enumeration of, 122. classified as ex contractu and ex delicto, 106. PERSONAL LIBERT Y- infringement of, imports damage, 36. PLACE (see VENUE) not generally material, 389. PLACITUM ancient place of trial, 516. PLAINT in replevin, 138, n. PLEADING definition, 1. described, 10. general and special, defined, 2. special, states facts, 16. objection to general pleading, 16. utility of, 4, 16. a necessity to orderly procedure, 97. 610 INDEX. References are to paces. PLEADING (continued) accuracy and precision required in all forms, 98. origin of system, 2, 255. common-law system of, relation to existing systems, 9. excellence of, 11. necessity for understanding. 11. study of, recommended by writers on code pleading, 29. common-law system occasioned by jury trial, 101. distinct issues necessary to that mode of trial, 101. origin of coming to issue, 256. not of legislative origin, 254. cultivated as science from tempo Ed. L, 254. condition of tempo Bracton, 99. influence of Roman system, 540. observance of Roman method, 540. growth of connected system, 255. common-law system unknown except in England, 255. anciently oral in open court, 146, 147, 511. later written in law French, 511, 512, 519. in English from tempo Ed. III., 520. ancient treatises, 539. reformation of, 10. in force, except as repealed, 11. rules cannot be dispensed with, 12. principal rules not abolished by code, 12, 15. reason for ancient technicality, 10, 16. principal objections covered by facility of amendment, 17. common-law system not abolished by code, 9. common-law system not affected by abolition of forms of action, 9. attempts to abolish, 25. not more complex than code, 30. early simplicity in Pennsylvania, 21. rules not dependent on forms of action, 15. identity of equity rules and principles, 12. law and equity, relation between, 14. formerly the same, 14 code pleading object to destroy fictitious pleading, 11. looseness in, 11. theoretically like equity pleading, 12. construction of code provision, anomalous, 132. principal objects of, 1, 10, 26, 100, 147, 254, 255, 262, 405. to avoid obscurity, prolixity, confusion and delay, 262. to separate law from fact, 10. to apprise opposite party and the court, 150, 405. to ascertain subject for decision, 255. to evolve disputed matters, 255. to separate questions of law and fact, 255. INDEX. 611 References are to pages. PLEADING (continued) rules of allegation, 254. suggestions as to preparation for, 103. the art of, 103. common-law mode, sufficient under code, 155. n. matters judicially noticed need not be pleaded, 411. circumstances implied, need not be, 415. should allege only operative material facts, 102, 107, 154. all else surplusage, 107, 155. should consist of allegations of fact, 12. fact distinguished from conclusion, 156, 410. evidence pleaded in bill of discovery, 13. transaction should not be recited at large, 102. rule of construction, 432. construed to uphold, 432. facts, how stated recital at large not allowed, 107. positive allegations, when required, 423. omitted facts, when implied, 416. implied allegation, doctrine, 416. ambiguous, unfavorably construed, 432. narrow application of this rule, 416. alternative not proper, 440. disjunctive or alternative, when proper, 424 facts must be alleged with certainty, 405. certainty required under code, 406. greater in plea than in declaration, 429. 430. must have certainty of place, 372, 389. indefiniteness under the code, 408. certainty in replication, 406. general mode, when allowed, 417. general allegations of negligence, when sufficient, 175, 176. as to inducement or aggravation, 428. particularity as to complying with statute, 428. greater in plea than in declaration, 429. what required, 425. degree of required, 426. prolixity, to be avoided, 411. surplusage, to be avoided, 463. immaterial matter is, 107, must not be double, 346. duplicity in narr., 175. several facts constituting single point, 521. must not be argumentative, 437. must not be by way of recital, 441. should observe approved form of expression, 443. 612 INDEX. References are to pages. PLEADING (continued) must not be insensible or repugnant, 369, 431. must not be in alternative, 440. matters should be alleged according to legal effect, 441. same rule under codes, 441. disjunctive form, when proper, 423. ought to be true, 478. no mode of enforcing the rule, 478. act of servant must be so alleged, 175. reference from one to another, 425. there must be no departure, 453. of facts naturally coming from opposite side, 413. presenting mixed question of law and fact is bad, 309. order and extent of declaration, plea, replication, rejoinder, surrejoin- der, rebutter and surrebutter, 195. when begun, 146. succeeds appearance, 518. when most proper to be in person, 574. order of, 264. one class pleaded at a time, 178. party must demur or plead, 264. cannot plead or demur to the same matter, 371. PLEADING OVER without demurring, effect, 270. waives objections of form, 271. aids construction as to substance, 272. PLEAS defined, 1, 504 classes of, 177, 523. dilatory and peremptory, 177, 522. in bar, form of, 178, 188, 189. confesses traversable facts not denied, 322. admission by failure to traverse, ancient application of, 551. rule in equity, 322. all are in evidence and may be read to jury, 323. must be by way of traverse or in confession and avoidance, 188, 196, 265, 310, 321. of traverses (see SPECIAL TRAVERSE), 274. may deny all or a single material fact, 265, 341. but cannot do both, 265. in confession and avoidance, properties of, 311. must give color, 312, 461. are in justification, 311. or excuse; examples, 312. must conclude with verification and prayer of judgment in, 312. must answer what is adversely alleged, 321. amounting to general issue, how questioned, 251, 459. traverse of inducement not allowed, 340. should have proper commencement and conclusion, 444 INDEX. 013 References are to pages. PLEAS (continued) upon negative and affirmative conclusion, is to country, 335. where new matter alleged, conclusion is with verification, 335. exceptions in special traverses, 335. to debt on bond; form, 205. dilatory pleas do not confess and avoid, 326. to jurisdiction when and how pleaded, 179. must show another court, 180. for privilege of person, 184. in abatement, defeats action. 186. classes of, 183. when applicable, 181. not favored, 182. must be strictly accurate, 182. that another suit pending, 182. of the suit, 181, 184 to form of writ, 185. must give better writ, 184. 472. exceptions to rule, 472. to declaration or count, 184. to the person of plaintiff, 183, 523. for misnomer, example, 327. for non-joinder of party ex contractu, 60, 61. for misjoinder of parties, 60, 61. for non- joinder of parties ex delicto, 62, 63. for misjoinder of parties ex delicto, 62, 64. for non-joinder, form, 186. that plaintiff is fictitious, 183. for misnomer, 185, form of, 185. for non-joinder, 183. commencement and conclusion, 182, 564 judgment on, 237, 238. prayer of judgment, 184. in estoppel, conclusion of, 448. in suspension stays proceeding until disability removed, 180. suspends action, 180. nature of, 180. puls darreign continuance when proper, 198. incidents of, 199. supersedes all former pleas, 200. starts pleading de novo, 200. must be extremely certain, 200. example, form, 200. must show authority, 404 614 INDEX. References are to pages. PLEAS (continued) title, 399. in chattels, 401. adversaries' title, 401. particular estates, 403. alleging media of, 402. anomalous, incidents of oyer, profert and inspection, 204, 209. motion to strike out, when proper, 251. two alike, one stricken, 251. each must be sufficient, 370. reference from one to another, 425. bad in part bad altogether, 451. must be properly entitled, 477. signing of, 152. POSTEA- form of, 221. PRACTICE place in procedure, 7. on objection to competency, 223. general objections, when sufficient, 222. in oyer, profert, inspection, etc., 204. after verdict, 227. PR^ECIPE for original writ, 144. office of, 145. and writ should conform in theory, 100. but rule of slight importance, 100. not necessary in case, 136. approved, should be followed, 443. no absolute rule requiring, 443. PRESUMPTION avoids necessity of pleading, 416. aids pleadings, 415. from failure to adduce proof, 219. operates as evidence, 219. of continuance, 219. PRINCIPAL AND AGENT rules as to parties, 68. rules as to suing and being sued, 75. when principal may sue on contract of agent, 44 when agent may sue, 68. PRIVITY (see PARTIES) when persons not parties to a contract may sue on it, 41. doctrine of, and scope of rule, 41. apparent conflict of authority, 41. rules of, 43. claim of, 44 INDEX. 615 References are to pages. PRIVITY (continued) application of doctrine in favor of express messenger and railroad com- pany, 92. PROCEDURE necessity for study of, 4 place in jurisdiction, 5. scope of term, 7. effect of reformed, 4 modern reforms in, 7, 8. reformed, how regarded, 10. code, effect of, 11. reform in Penn's colony, 21. New York and Pennsylvania contrasted, 21. difference in theory in New York and Pennsylvania, 22. technicality of New York code, 25, n. essential difference between legal and equitable, 26. code and common-law contrasted, 27. claims of simplicity of code unfounded, 27. elements of true reform, 30. obstacles to true reform, 30. common-law, essential to code, 48. in force in code states unless directly repealed or modified, 48. operates by punishment through damages, 26. by seizure of property, 26. PROCESS object of, 143. a judicial writ, 143. how tested, 143. forms of, 143. capias, 144 PRODUCTION OF SUIT an obsolete matter, 469. obsolete rule as to, 572. PROFERT AND OYER, 203. unnecessary of deed stated for inducement merely, 204 rule as to, 474 document remains in court, 205. when excused, 476. PROLIXITY (see PLEADING) general pleading avoids, 418. PROOF (see ALLEGATA ET PKOBATA) order of introducing, 222. allegation must be proved as laid, 409. PROPERTY defined, 51. distinct from title, 51. and interest nearly synonymous, 51. how far transferable, 38. 016 INDEX. References are to pages. PROPERTY (continued) in adverse possession, unsalable, 40, 89, n. interest in consortium is, 92. every infringement imports damage, 36. taken for public use by giving compensation, 34. PROPOSITION OF LAW- separates law from fact in trials by court, 217. PROTESTATION use and office of, 323. example of, 323. not taken on matter traversed, 325. should not be repugnant to facts alleged, 325. effect in another suit, 325. PROXIMATE CAUSE regarded in law, 104 PUIS DARREIGN CONTINUANCE (see PLEAS). QUANTUM MERUIT, 133. QUANTUM VALEBANT, 134, QUARE CLAUSUM (see TRESPASS). QUARE IMPEDIT obsolete writ of, 114, 157. QUESTIONS OF LAW decided by judge, 514 QUO ANIMO (see INTENT) importance of, 105. QUOD RECUPERET (see JUDGMENT). REAL ACTIONS (see ACTIONS) formerly called feudal, 112. distinct characteristic of, 96a, 112. defined, 106, n. REAL PARTY IN INTEREST (see PARTIES). RECITAL when insufficient pleading, 440. pleading by way of, allowable in inducement in case, 441. example of, 441. RECORD of writs and forms, 111. permanent, exist from tempo Rich. L, 149, 517. RECORD ROLL how prepared, 148. shows issue, 212. made by parties, 34 ancient origin of, 515. ancient form of, 516. how made up, 148, 151. INDEX. 017 References are to pages. RECOUPMENT right of, 93. REFEREES in matters of account, 124. REFORM PROCEDURE (see PROCEDURE) working of, in England, 25, n. REGISTER OF WRITS, 111. REJOINDER example and form of, 197. RELEASE how pleaded, 199, n. by one obligee before suit bars, 59. by one obligee after suit, contra, 59. of one of several, bars further remedy, 63. REMEDIES (see ORIGINAL WRIT; ELECTION OP REMEDIES) throws light en right, 123. several pursued at same time, 90. election of, 85. , only inconsistent bar each other, 90. REMOTE AND PROXIMATE CAUSE law regards, 173. REPLEADER motion for, when allowed, 231. awarded on immaterial issue, 259. REPLEVIN a substitute for debt in the detinet, 124. origin of, 138. had no original writ, why, 138. regulated by statutes in most states, 138. lay originally only for chattels distrained, 138. lies for any unlawful taking, 94. lies for wrongful taking or detaining, 138. a possessory action, 138. seeks the chattel itself, 138. plaintiff gives bond and gets the chattel, 138, n. declaration in, 168. where goods are obtained on writ, 139, n. where goods are not obtained on writ, 139. pleas in, proof under non cepit and non detinet, 139. general issue in, 285. plaintiff's title questioned only by special plea, 285. allegation of property in third person is inducement. 285, n. allegation of property in defendant is inducement, 285, n. damages in, 139, n. 018 INDEX. References are to pages. EEPLICATION plaintiff's reply to plea, 195. commencement and conclusion, 449. improperly filed, stricken, 370. claiming estoppel, 327. in assumpsit, form, 324 to statute of limitations, 275. to plea in covenant, 297. by way of traverse, form, 196. by way of confession and avoidance, form, 197. EEPLICATION DE INJURIA improper to question title, interest or authority, 238. REPLY DOUBLE (see DUPLICITY) motion for leave, 369. REPUGNANT PLEADING what constitutes, 369. prohibited by codes and common law, 431. ground for demurrer, 431. one may be stricken, 251. RES ADJUDICATA (see ANOTHER JUDGMENT RECOVERED) object of the rule, 479. foundation of the rule, 480. foreign judgments, 480. no broader than issue joined, 34, 148. mere errors do not vitiate, 148. what it embraces, 480. embraces facts and law, 480. by judgment recovered, 334. extends to contested matters only, 481, 482. by decision on demurrer included, 481. decrees by consent do not constitute, 481. where cause of action different, 481. in identical adjudication, 91. where cause of action identical, 481. suit in tort is not against contract, 92. indicated as to cause by issue, 101. under plea of liberum tenementum, 401. how pleaded, 481. binds parties and privies, 481. RES GEST^E the transaction, 101. EESPONDEAT OUSTER judgment of, 269. EETURN DAYS of court, 143. INDEX. G19 Referencos are to pages. RIGHT writ of, 112. RIGHT OF ACTION meaning of, 103, 104, 500. several may accrue from one act, 91. gives power to sue in court, 104. any one whose right is infringed has, 34, where loss does not give, 341. must rest on legal inquiry, 34. on contract, only in parties or privies, 35. damage and injury must unite, 35. none arises from mere loss or damage, 35. every malicious interference causing loss gives rise to, 35. who controls, 37. on assigned chose, 37. accrued, may be transferred, 66. how far transferable, 168. personal, distinct from personal actions, 91. RIGHTS protection of them, aim of society, 33. ROMAN LAW no separate court of equity, 22. RULES OF PLEADING specific, see Table of Contents. SALE implied from conversion, 88. of property in adverse possession, 89. may be made of converted property, 89. SCINTILLA OF EVIDENCE rule as to, 385. SEDUCTION (see TRESPASS; TRESPASS ON THE CASE) theory of right of action for, 95. in whom it vests, 95. forms of action for, 95, 130. trespass an appropriate form, 129. SET-OFF, 93. right of, affecting election of remedy, 93. SEVERAL COUNTS for separate causes, 498, 500. in one suit, 259. must be separately stated, 98. in one declaration, 348. when allowed, 356. for single cause, a relaxation from principle, 361. for a single cause, utility of, 361. use of, under the code, 362. 620 INDEX. References are to pages. SEVEEAL COUNTS (continued) examples of, 358. prevents fatal variance, 220. allegation that they are for one cause, traversable, 331. SEVERAL ISSUES production of, 368. SEVERAL JUDGMENTS when a bar, 63. SEVERAL LIABILITY election and pursuing till satisfaction, 63. SEVERAL PLEAS when allowed, 365. examples of, 365. not allowed of dilatory class, 370. early statutes allowing, 366. inconsistent, when allowed, 366. privilege of, not absolute, 365. one successful, sufficient, 368. general issue with notice, 368. SEVERAL REMEDIES cannot be jumbled in one count, 90. SHAM PLEADING, 478. under the code, 479. SIMILITER use and form of, 194, 33& may be waived, 194. omission is formal defect, 338. SINGLENESS (see DUPLICITY) formerly but one issue allowed for each subject, 260. does not permit joinder of causes, 489. SLANDER AND LIBEL defined, 166. oral words, when actionable per se, 167. written words, when actionable, 167. words implying unchastity, 167. malice is gist of action, 167. malice always in issue, 169. declaration in, anomalous, 154. declaration in (form), 165. structure of, 165. mode of alleging words, 443. the charge in declaration, 167. inducement in declaration, 167. the colloquium, 168. the innuendo, 168. allegation of damages, 168. joinder of parties in action for, 46, n. INDEX. C21 References are to pages. SOCIETY organized to protect private right, 33. SON ASSAULT DEMESNE (Plaintiff's own assault) plea of, 287. replication, new assigning, form, 329. SOVEREIGN capacity to sue, 65. SPECIAL DAMAGES what are, 468. SPECIAL DEMURRER required to question formal errors, 266. includes general, 268. not carried back, 268. required for argumentative.iess, 438. affected by statute, 266. SPECIAL FINDINGS distinct from special verdict, 226. control general verdict, 226. examples of, 227. SPECIAL PLEADING origin and meaning of term, 287. avoided in general issue, 278. SPECIAL REPLICATION form of, 289. ancient examples of, 548. SPECIAL TRAVERSE object of, 291. effect and object, 297. adapted to evolving questions of law, 298. example of. 291. example in quare dausum, 292, 293. adapted to questioning landlord's title, 298. replication in trespass, 294, 296. de injuria, 287. after de injuria, 296. qualities of, 303. brings in direct denial, 300. objections to, 302, 303. properties of inducement, 294. affirmative part is inducement, 292. negative part is the absque hoe, 292. . inducement, argumentative denial, 300. inducement, indirect denial, 304. modern application of, 301. use in equity cases, 301. inducement in, 299. , 40 622 INDEX. References are to pages. SPECIAL TRAVERSE (continued) extension of use, 300. inducement must constitute full answer, 304 does not tender issue, but concludes with verification, 293, 335. with new matter, requires verification, 300. issue tendered on, is obligatory, 806. the issue on, 299, 306. mode of answering, 296, 297. opposite party cannot traverse inducement, 305. SPECIAL VERDICT what it is, 225. must find fact, 225. cannot be required of jury, 226. STATE, THE cannot be sued without consent, 34 must act through officers, 34 one may sue another, 65. STATUTE when required to be alleged, 412. STATUTE OF AMENDMENTS AND JEOFAILS note on, 525. effect of, 546. cures omissions, when, 433. cures formal defects in pleading, 272, 533. effect on arrest of judgment, 230. effect on repleader, 232. STATUTE OF FRAUDS how availed of, 429. when writing presumed, 429. STATUTE OF LIMITATIONS plea of, 275. how alleged, 444 effect on election of remedies, 92. STATUTE OF WESTMINSTER origin of action of trespass on case, 111. STATUTORY RIGHT must be specially alleged, 430. STRIKING OUT (see MOTION TO STRIKE) sham pleadings, 479. SUBJECT OF ACTION meaning of, 105. but one within an issue, 260. SUIT (see PRODUCTION OF SUIT) technical meaning of, 469. antithesis of action, 65. jurisdiction of, 154 INDEX. G23 References are to pages. SURPLUSAGE defined, 4G& example of, 107. code and common-law rule same, 463. may cause variance, 464. how remedied, 464 descriptive words must be proved, 463. to be avoided, 463. SURVIVAL OF ACTIONS rule as to, 38, 91. of joint right of, 68. of tort for preventing performance of contract does not survive, 92. TENANT estopped to deny landlord's title, 298. ^may question particular estate by means of special traverse, 298. TENANTS IN COMMON rules as to joining, 53. must join in trespass to real property, 62. TENDER OF ISSUE is made by concluding to country, 333. form of, 333. of fact, 333. to be tried by record, 334. TERMS OF COURT origin of, 143. entitling pleadings of, 478. THEORY must be adopted, 24 code, equity and common law alike, 90, 97. and adhere to, 97. unless changed by amendment, 97. of action, indicated by form, 97, n., 103. proof must correspond with, 308. TITLE legal and equitable examples, 51. must be shown in pleading, 391. when it must be alleged in extension, 395. rule as to deviation, 395. pleading particular estates. 396. special rules, 398. special rules as to heirs, 398. of possession, when sufficient. 392. of possession, when insufficient, 394 alienation or conveyance alleged according to legal effect, 398. certainty required in alleging, 432. proved as alleged, 403. estopel to deny, 403. 624 INDEX. References are to pages. TITLE OF PLEADINGS rules, 477. TORT definition and elements, 108. arises out of common-law duty, 83. consists of violation of duty imposed by general law, 107. need not be independent of contract, 106, 107, n. a name for wrongs falling within writ of trespass on case, 132. distinguished from chose, 87, 33. how far transferable, 39. when assignable, 40. when assumpsit arises from, 89. waiving invokes fiction, 29. fiction of, waiving, 85. never implied, 85. by preventing performance of contract, 92. TRANSACTION defined, 499, 500. meaning and importance of, 103. in code and practice acts, 103. in English procedure act, 495. TRANSCRIPT OF RECORD, 111. TRAVERSE (de injuria) the ancient term for denial, 524. pleading by way of, 189, 191. in general, manner, form and effect, 307. are general and special, 274. common, is direct contradiction, 275. common traverse tenders issue, 274 there cannot be a traverse upon a traverse, 337. none on immaterial allegations, 340. any of several material allegations may be denied, 341. should not be of inducement, 340. must be of matter alleged, 310. may be of matter implied. 311. must not be of matter of law, 308. two negatives do not constitute an issue, 439. two affirmatives do not make good issue, 439. must not be too large nor too narrow, 342. may be as broad as allegations, 343. examples of, 342. too large by use of conjunctive, 343. too broad, a species of negative pregnant, 343. too narrow, being partial, 345. observation on, too narrow, 344. issue must be tendered, 332. INDEX. 625 References are to pages. TRESPASS VI ET ARMIS is an injury committed with violence, 127. violence may be actual or implied, 127. often concurrent remedy with case, 128. sometimes difficult to distinguish from case, 128. substantially different from case, 128, n. where facts are equivocal, theory indicated by form of allegation, 128. criterion is the relation of force to injury, 128. features of, distinguishing it from case, 131, n. not necessary that defendant intended unlawful act, 128. intent may determine liability, 129. must be voluntary, 128. species of trespass to the person, 129. trespass de bonis asportatis, 129. trespass quare clausum fregit, 129. to the person, see ASSAULT AND BATTERY. is for assault, assault and battery, false imprisonment, or seduction, 129. declarations in assault and battery, 160, 358. for false imprisonment, 170. defense of moderate chastisement, 436. plea in (form), 368. pleading plaintiff's own wrong, 287. plea alleging plaintiff's own assault, 287. replication de injuria, 288. quare clausum fregit lies for unlawful injury to real property, 129. lies for forcible entry on land, 114. is a local action, 379. arising beyond state treated as transitory, 381. gist is injury to possession, 130. used as a remedy for seduction, 130. may lie against real owner, 114, 129. damages to crops and trees, when recoverable in trespass de bonis, 94. may be waived and action brought for property taken, 94. title of plaintiff, 130. joinder of parties, 62. declaration in, 160, 161. allegation of breaking and entering, 428. matters in aggravation, 428. general issue is not guilty, 281. scope of general issue, 281. general issue, questions plaintiff's title, 281. denies act of trespass, 282. special pleas in, 281. justification or discharge specially pleaded, 282, 286, n. reply to justification, 282. damages recoverable in, 94. 626 INDEX. References are to pages. TRESPASS VI ET ARMIS (continued) de bonis asportatis. lies for goods and chattels, 94, 129. title of plaintiff, 129. damages recoverable in, 94 denying property, 282. db initio, 129. application of doctrine of, 131. shown by new assignment, 289. TRESPASS ON THE CASE (see ASSUMPSIT) origin of the form of action, 111, 132. so called because case set forth at length, 131. marked boundary of legal remedies, 112. the usual remedy for wrongs without force, 136. embraces many species of injury, 131. lack of precedent no obstacle, 136. modern enlargement of remedy, 136. concurrent with trespass, when, 128. lies for forcible injury where malice or negligence relied on as gist of action, 128. lies where covenant or trespass will not, 181. is an equitable action, 131, n. is very wide in its application, 131, n. the presence of force will not defeat, 131. is universal remedy for wrongs where force is not the gist, 131. distinguished from trespass, 131, n. in theory based on tort, 132, 133. statutes abolish distinction in form, 131. a distinct form of action, 133. substantially different from trespass, 132, n. declarations in, 163. recital in inducement, 441. declaration in, in trover, 164 for libel, 165. modern declaration, malicious prosecution, 169. for malicious prosecution, 170. modern declaration, for negligence to passenger, 173. for negligent injury by servant, 175. allegation of due care, when necessary, 175. general issue in, 284 breadth of general issue in, 284 TRESPASS TO TRY TITLE, 120. a substitute for ejectment, 120. in form, trespass quare clausum fregit, with notice of intention to try title, 120. in Texas, is exclusive action to try title, 120. abolished in South Carolina, 120. divested of fictions which marred action of ejectment, 120. will lie against an adverse claimant not in possession, 120. is like bill to remove cloud, 120, 121. INDEX. 627 References are to pages. TRESPASS TO TRY TITLE (continued) may be maintained against a tenant holding over, 120. plaintiff must rely upon his own title, 121. third person through whom defendant holds may ba made a party, 121. nature of title necessary to maintain. 121. several tracts of land may be sued for in one action, 121. governed by rules applicable to ejectment, 121. defense of stale demand not allowed by trespassers, 121. plea of not guilty puts in issue trespass and title, 121. verdict must locate boundaries, 121. judgment is for damages, 122. successful plaintiff gets writ of possession, 121. TRIAL meaning of, 528. how conducted in chancery, 27. must be of issue joined, 194. of facts modes of, 215, 23& by court, 217. at bar, distinct from trial at nisi prius, 217. by wager of battle, 233. by grand assize, 233. by record, 234 by certificate, 234, 335. by witnesses, 235. by inspection, 235. by wager of law, 235. ancient modes of, 528, 534, 537. by jury (see JURY TRIAL), 215. account of, 534 TROVER (see CONVERSION) waiver of, 88. lies wherever trespass for taking will, 136. will not lie for goods in custody of law, 135. lies to try title to goods, 135. claim is for damages for conversion, 135. based on legal title, 135. real owner not in possession may maintain, 136. intent immaterial, 135. gist of action is conversion, 135. motive of defendant is not material, 135. original taking may have been lawful, 135. proof of, 135. demand and refusal prima facie evidence of, 135. purchaser in good faith may be guilty, 135. declaration, 164 description of property, 164. pleas in justification, 165. pleading defenses, 408. damages in, 165. 628 INDEX. References are to pages. UBI JUS, IBI REMEDIUM importance of, 33. apparent exception to rule, 33. limited by original writs or action on the case, 112. the spirit of remedial law, 136. utile per inutile non vitiatur, 383, 432, 463, 464. VARIANCE doctrine of, 219. between declaration and writ, 99. proof must correspond with theory of action, 134, 135. degrees of, 220. and failure of proof, how different, 220. when immaterial, 220. when material, 458. must be in substantial matter, 220. must be pointed out on trial, 221. similar to departure, 453. mere surplusage will not constitute, 464. as to quality, may be material, 389. as to place, immaterial, 389. VENIRE FACIAS DE NOVO (New Trial) the jury summons, 216. when allowed, 233. formerly described issue, 26L not so now, 262. form of, 375. VENUE ancient reason for, 372. history of venue, 373. modern law of, 373. ancient reason for rule, 375. have passed away, 375. modern reason for rule, 377. what actions, local and transitory, 378. when strict rule inapplicable, 381. change of, ancient practice, 558. VERDICT is an affirmative or negative of issue, "221. must be on issue, 218. settles what questions, 218. may be several in one suit, 226. general and special, 224. may be oral or written, 221. may be reduced to form by court, 221. form of, 221. entry called posted, 221. statute of amendments aids, 221. INDEX. 621) References are to pages. VERIFICATION of dilatory pleas required, 523. VIDELICET (to wit) use of, 381. does not aid material fact, 383. excuses exact proof, 403. VI ET ARMIS (see TRESPASS). VIEW demand of, 201. reason for granting, 201. of premises, practice of, 201. VOUCHER OF WARRANTY office of, 202. WAGER (see PLEADING OVER) of battle, 233, 535. of law, 235, 536. plea tendering, 335. WAGES master and servant; action for, distinct from that for wrongful dis- charge. 105. WAIVER not proven under plea of performance, 420. of direct allegations by pleading over, 433. of contract and suing in tort, 85. of crime or tort, doctrine of utility of, practice, 85, 86. involves a fiction, 29. original limitation of rule, 88, 89. does not allow ignoring actual adverse possession, 89, 90. WARRANTY voucher of, 202. WASTE, ACTION OF abolished in England, 117. equity would enjoin, 117. was a mixed action, 117. concurrent with trespass on case, 117. case for waste would lie against a stranger, 118. action in America, 118. lies against one in lawful possession, 117. lies against a tenant, 117. or against a stranger, 117. will lie under code against trespasser, 118. distinguished from trespass, 118. English statutes allowed treble damage for, 117, 118. WHEREAS the mode of recital, 441. 630 INDEX. References are to pages. WITHDRAWING A JUROR practice, 885. works a continuance, 385. | WITNESS competency, how questioned, 222, n. WRIT conforming to theory of, 99. origin of formal, 505. by whom issued, 144, 145. WRIT OF ENTRY ancient action to try title, 118. lay at suit of owner of freehold, 119. abolished in England, 119. in use in Maine, New Hampshire and Massachusetts, 119. one tenant in common can recover on his share, 120. title must be a grant or accompanied with seizin, 119. demandant (plaintiff) recovers on strength of title, 119. possession good against stranger to title, 119. essentials of declaration, 119. pleading must describe premises sufficiently for identification, 120 equitable defenses in, 119. defenses, 120. damages, value of use and for waste, but not consequential damages, 119. damages, defendant may set off taxes and betterments, 119. judgment rendered, 119. WRIT OF ERROR is a proceeding in an appellate tribunal, 223, 246. if allowed before execution, formerly suspended further action, 246. but supersedeas is now required, 246, n. formerly an original writ out of chancery, 246. is now a judicial writ sued out of appellate tribunal, 246. formerly remedied only errors of law, 247, 250. but now reaches all errors, 247, n. procedure on, 250. WRIT OF EXECUTION issues after judgment, 245. WRIT OF POSSESSION successful plaintiff in real action has, 96a, 123. WRIT OF RIGHT, 112. WRITS register of, 111. WRONG none without a remedy, 33. the spirit of remedial law, 136. YEAR BOOKS ancient record of causes, 515. This book is DUE on the last date stamped below > L 005 835 890 4 UC SOUTHERN REGIONAL LIBRARY FACILITY A 001 000 581 7 Of.CATTFORN 148 ANSiiLES LIBRARY