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 LOS ANGELES 
 
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 Letter from Hon. Theophimjs Parsons, L. L. D, 
 
 The emiiient Laio Writer and Professor of Law, in Harvard University. 
 
 Cambridgk, November 9, 1857. 
 
 Dear Sir : — I have looked over the Book on Pleading you were good 
 .enough to send me, with great interest, from the beginning to the end. 
 
 Upon the general subject, I could not say what I think, without writing 
 an essay: but it may all be summed up in the principles you express so 
 accurately and concisely on page 49. To be even more brief than you, I 
 would f-ay : 
 
 1st. Common law pleading was a natural, rational and logical system 
 of statement and counter statement, for the purpose of exhibiting preciseh' 
 the actual issue, and eliminating every thing else. 
 
 2d. Its rules and forms, as they originally stood, were admirably 
 devised for this purpose. 
 
 ?>d. Courts of law cannot do their proper work in a proper way, except- 
 ing l*y means of rules and forms, the same with those in essence and pur- 
 pose, although they may be greatly simplified and improved in manner 
 and phrase. 
 
 In my judgment, there never w:is a time when the diligent study of the 
 principles of special pleading would have been more profitable than it 
 would be now. 
 
 Your work seems to me careful and exact; it indicates learning and 
 consideration, and is thoroughly sy.'^tematic, and covers the whole ground 
 of pleading in i)orsonal actions. I hope it will be studied beyond the pre- 
 cincts of your own state. 
 
 Very resj)(;ctfully, <fec. 
 
 THEOPHILUS PARSONS. 
 To Samukl Tvlek, Esq. 
 
 Letter from the late William Curtis Noyes, 
 
 An eminent Lawyer of the New York Bar. 
 
 No. 265 Fifth Avenue, Jjor!7 29, 1861. 
 My Dear Sir : 
 
 I thank you for sending me Mr. Tyler's excellent book on Pleading 
 in Maryland. Please present to Mr. Tyler also my sense of personal 
 obligation to him. I have been always of the opinion, that most of the 
 common law rules of pleading could be advantageously retained, and I am 
 glad to see, that, in one of our yet sister States, this has been done. The 
 opposite course has tended to introduce ignorance and charlatanry, and to 
 lessen the learning of the Bar. May the Bar of the Union, yet unite to 
 restore the law, as well as the constitution, to its original integrity. 
 
 Yours, truly, WM. CURTIS NOYKS. 
 
 To Daniki. Bowlky, Esq.
 
 
 TREATISE 
 
 THE MARYLAND, 
 
 SIMPUFIED, 
 
 PEELI31INARY PROCEDURE 
 
 AND 
 
 PLEADING, 
 
 |n Courts of fato, 
 
 BY SAMUEL TYLER, 
 
 OF TUE MARYLAND BAR. 
 
 "I entertain n decided opinion that the established principles of pleadinfr. whifh compose 
 what is called its science, are rational, concise, luminous, and ailmiraMv .'uiaplod to the 
 investigation of truth, and ought consequently to be very carefully touched hy the hand of 
 innovation." 
 
 Chie» Justice Kent, 1 Johns. Reps. 471. 
 
 PHILADELPHIA: 
 
 T. & J. W. JOHNSON & CO., 
 
 LAW BOOKSELLERS AND PUBLISHERS, 
 
 No. 535 CHESTNUT STREET, 
 r 185 7. 

 
 
 Entered, according to Act of Congress, in the year 1S57, 
 
 BV SAMUEL TYLER, 
 lu the Clerk's Office of the District Court of Murylauj. 
 
 KIXQ & B.URD, PRINTERS, 607 8AXS0M ST.
 
 DEDICATIOX 
 
 TO THE MARYLAND BAR, 
 
 This book is dedicated, bj one, who feels a State as well 
 as a professional pride, that from colonial times to the present 
 daj, Maryland has been, and is, pre-eminently distinguished 
 for able lawyers. It is hoped that, while the new system 
 of pleading, which the book unfolds, wdl be an easier and 
 surer means of administering the law, than the old was, it 
 will be also found a better discipline for evolving, invig- 
 orating and sharpening the intellectual faculties of the 
 student, as it conforms legal logic more nearly to common 
 logic. With this hope, it is anticipated, that the Bar will, 
 continue to be the leading class of Maryland citizens, alike 
 distinguished for legal learning, professional honor, and a 
 bland courtesy which seeks the respect and the favor of 
 the people. 
 
 SAMUEL TYLER. 
 
 * 
 
 F> ederlck, MJ., Juhj, 1857.
 
 XOTE TO THE BAR. 
 
 In tlie performance of the duty, laid upon my col- 
 leagues and myself by tlie General Assembly of Maryland, 
 of simplifying the Practice and Pleadings in the Courts of 
 the State, it was assigned to me, with other work, to 
 simplify the Pleading in the Courts of Law. As, therefore, 
 I am the author of the system of Simplified Pleading, some 
 of my professional brethren, in difierent parts of the State, 
 have persuaded me to write this treatise for the benefit of the 
 student, and perhaps the assistance of the practitioner, of the 
 law. As therefore the treatise has not been obtruded upon, 
 the profession, but yielded at the solicitation of some of its 
 ablest members, it deserves to receive the greater indulgence 
 for its mau}^ imperfections. And while many of its defects 
 are, doubtless, ascribable to my incompetency, I beg, that 
 some be attributed to the short time I have had to prepare 
 the work : not having had as many weeks, as I ought to 
 have had months, for the labor. But the necessity for its 
 immediate use would not allow me more time for its pre- 
 paration. 
 
 It will be observed, that I have rarely referred to 
 authorities, in my exposition of the doctrines of Pleading. 
 This, it seemed to me, was best, for a book which is 
 designed, to present the system of Pleading in its new 
 aspect, embarrassed, as little as possible, by the old ideas 
 which a look into authorities will necessarily recall into the 
 mind. If any statement of doctrine be deemed erroneous, 
 the enlightened practitioner will know where to find the 
 authorities to correct my error.
 
 CONTENTS. 
 
 IxTRocrcTioN n 
 
 Parties to an Action 17 
 
 CHAPTER FIRST. 
 
 Procedure Preliminary to Pleading... 19 
 
 Of Original Writs 21 
 
 The Writ of Summons — When the proper Writ — Its form — 
 What the Plaintiff must do before it can be issued — The service 
 of the Writ by the Sheriff — The proper returns— What the 
 Defendant must do, when he has been summoned. 
 
 The Writ of Replevin — When the proper Writ — Its form — 
 What the Plaintiff must do before it can be issued — What the 
 Defendant must do — The service of the Writ by the Sheriff — 
 The proper returns, and their consequences — The Writ re- 
 newable — The cases where the Defendant resides in one juris- 
 diction, and the goods to be replevied are in another — The 
 practice in such cases. 
 
 Joinder of Parties to Actions 3G 
 
 Joinder of Plaintiffs 3G 
 
 The practice in cases of non-joinder and mis-joTnder of Phiintiffs. 
 
 Joinder of Defendants o'J 
 
 The practice in cases of the mis-joinder and iioii-juindcr of 
 Defendants.
 
 b CONTENTS. 
 
 Joinder OF Causes of Action 41 
 
 What causes of Action maybe joined, and what cannot be joined — 
 
 The practice when causes of action cannot be conveniently tried 
 
 together. 
 
 CHAPTER SECOND. 
 
 Pleading 45 
 
 Common law and Civil law pleading compared — How pleading is 
 related to evidence — AYhat defects in pleading the simplification 
 is intended to remedy — The Rules and Forms of Pleadings — The 
 nature of Form. 
 
 The Simplified Pleading 53 
 
 The Rules of Pleading — The Fundamental Rule — The General 
 
 Rule — An Issue necessarily formed by the working of the Rules. 
 Rules descriptive of Pleadings — The Demurrer — The Traverse — 
 
 The Direct Traverse — The Indirect Traverse— The Confession 
 
 and Avoidance. 
 
 Rules for Framing Pleadings 75 
 
 Of Pleadings in General 77 
 
 Rules applicable to framing all Pleadings. These Rules explained. 
 
 Rules applicable to framing the Declaration 90 
 
 These Rules explained. 
 
 Rules applicable to framing Pleadings, subsequent to the 
 Declaration 99 
 
 These Rules explained. 
 
 New Assignment 118 
 
 Its nature and the practice in regard to it. 
 
 Rules which make THirt.ssuE a Certain one 120 
 
 The import of these Rules explained. 
 
 Rules which make the Issue a Single one 133 
 
 The meaning of these Rules — The doctrine of different Counts in 
 a Declaration discussed.
 
 CONTENTS. 9 
 
 Judgment — how rendered 140 
 
 Repleader — its meaning 141 
 
 Abatement — The simplified practice in regard to it 142 
 
 Motions — The form in which they must be made 144 
 
 General Provisional Rules — to supply defects in the simplified 
 
 Pleadings , 145 
 
 CHAPTER THIRD. 
 
 Forms of Pleadings 147 
 
 Declarations 153 
 
 Pleas 103 
 
 Replications 171 
 
 New Assignment 172 
 
 Pleas in Abatement 173 
 
 Other Forms of Pleadings 174-82
 
 INTRODUCTION. 
 
 Feom the earliest ages of English history, as the year- 
 books and the oldest law treatises show, the lawyers and 
 judges of England gave especial attention to law procedure, 
 and considered skill in special pleading as the highest pro- 
 fessional attainment; and yet so difficult was it to mould 
 and develope the system of pleading so as to fit it for the 
 exigencies of administrative justice, that pleading did not 
 assume anything of the form of system, until the reign of 
 Edward the First ; and was, even then, only to be found in 
 the scattered precedents of adjudged cases. In the reign of 
 Charles the Second, a collection of adjudged points in plead- 
 ing, classed, without skill, in alphabetical order, was pub- 
 lished under the title of Doctrina Placitandi. This extensive 
 collection became the store-house from which pleaders pro- 
 cured precedents. Between the years 1772-77, chief Baron 
 Comyns, in his Digest of the Laws of England, under the 
 title, Pleader, gave, to the use of the Courts, a more systematic 
 compilation of authorities upon the subject. This able 
 digest of authorities on pleading, was a great advance beyond 
 any previous work. Next, the critical genius of Mr. Ser- 
 geant AVilliams, in his masterly notes to his edition of 
 Saunders' Eeports, elucidated the principles of pleading, and 
 furnished an initial towards a scientific treatise upon the 
 subject. Mr. Chitty, availing himself of the clear light of 
 Mr, Sergeant Williams' notes, was, thereby, greatly assisted 
 in constructing his elaborate and discriminating work, pre- 
 senting the doctrines of pleading in a systematic form, which 
 was published in the year 1808. Next appeared the treatise 
 of Mr. Stephen, which, starting from a higher scientific
 
 12 INTRODUCTION. 
 
 view of pleading, tlian that of Mr, Chitty, aimed at simplify- 
 ing the system, while it lighted up its technical intricacies. 
 The process of simplification had been begun centuries 
 before, both by rules of the Courts, and by Acts of Parlia- 
 ment. ISIr. Stephen only pointed more clearly to the import 
 and scope of this effort on the part of Courts, but especially 
 of Parliament, to free pleading from technical refinements, 
 while, by his more accurate analysis of the principles of the 
 system, he showed more clearly, wherein lay its substantial 
 merits. His book was a vindication of the excellence of 
 the system, before the contentious criticism of a restless and 
 searching public opinion. He brought out the system from 
 its theoretical entanglements ; and showed what it is in sub- 
 stance, and what it is in form ; thereby conducting to a 
 simpler and more enlightened practice. 
 
 In considering the system of pleading, we must distinguish 
 between the rules which are essential, permanent, and sub- 
 stantial, constituting the foundation of the well-weighed 
 policy of special pleading, which has stood the test of ages, 
 as the most efficacious instrument for enabling the jury to 
 discharge their peculiar functions; and other rules of a more 
 arbitary, technical, and artificial kind, which are founded 
 on no great principle of judicial policy ; but have been in- 
 vented only as auxiliary in framing and preserving the other 
 more substantial rules. This latter class of rules, which are 
 only intended as auxiliary and corrective, have, frequently, 
 in practice, been grievously abused by being applied to un- 
 essential defects in the form of pleadings, thereby determin- 
 ing causes, not upon the merit of rights, but upon the tech- 
 nical accuracy of the manner of stating them. The system 
 of special pleading could never have been built up, without 
 these technical rules requiring the strictest accuracy of state- 
 ment. Because, there is no medium between accuracy and 
 inaccuracy ; and consequently, as long as the system was 
 being formed and adapted to the manifold and multiform 
 combinations of facts, which constitute causes of action and 
 defences, no laxity of statement could be allowed without
 
 IXTRODUOTION. 13 
 
 danger of falling into the greatest looseness and prolixity. 
 But after the system is formed, and what is substantial, and 
 what incidental and formal only, can be clearly discriminated, 
 it is advantageous to strip off the technicality which has now 
 become only an encumbrance to its practical efficiency. This 
 has been doing for centuries ; while the system itself, as an 
 offshoot of the trial by jury, and indispensable to its efficiency, 
 has been preserved by the sternest will of the judicial and 
 legislative powers of the British government. 
 
 There are two modes by which the abusive application 
 of these more technical rules have been practised in the trial 
 of causes : 1. By demurrer : 2. By motion in arrest of 
 judgment. The remedies for the evil, have therefore been, 
 from time to time directed, in so limiting the scope of the 
 demurrer, as to diminish its abuse ; and of lessening the de- 
 fects that could be reached by motion in arrest of judgment. 
 Blackstone in speaking of the earlier and the later practice, 
 says: "After verdict and judgment upon the merits, they 
 were frequently reversed for slips of the pen or mis-spellings; 
 and justice was perpetually intangled in a net of mere tech- 
 nical jargon. The legislature hath therefore been forced to 
 interpose by no less than twelve statutes, to remedj^ these 
 opprobrious niceties ; and its endeavours have been of late, 
 so well seconded by judges of a more liberal cast, that this 
 unseemly degree of strictness is almost entirely eradicated." 
 The statutes, alluded to by Blackstone, commence in the 
 reign of Edward the Third, and come down to George the 
 First. Some of these statutes make the verdict cure many 
 defects which before could have been taken advantage of 
 by motion in arrest of judgment; and others of the statutes 
 so limit the scope of the demurrer, that unless the defects be 
 specifically stated in the demurrer, they could not be made 
 available. These statutes greatly relieved the system from 
 its technical entanglements. And if we compare the system 
 of pleading, as set forth in the work of Mr. Stephen, with 
 what it was just before each of these statutes was passed, we 
 will find that as the system was developed by tliu Courts
 
 14 INTRODUCTION. 
 
 and the bar, it was, from time to time, simplified by these 
 statutes, until it had, by the rules and the practice of Courts 
 in accordance with the requirements of these statutes, 
 attained to the completeness and excellence pointed out by 
 ]\[r. Stephen. 
 
 But never was it even thought of by the judicial or legis- 
 lative mind, to abolish the system itself of special pleading. 
 In the reign of Elizabeth, the national opinion of special 
 pleading is well expressed, by Sir Thomas Smith, in his 
 Commomvealth of England. "Having seen, (says he,) both 
 i^ France and in other places, many devices, edicts and 
 ordinances how to abridge process, and to find how that 
 long suits in law might be made shorter, I have not per- 
 ceived nor read, as yet, so wise, so just, and so well devised 
 a mean found out as this, by any man among us in Europe. 
 Truth it is, that when this fashion hath not been used, and 
 those to whom it is new, it will not be so easily understood, 
 and therefore they may, perad venture, be of contrary judg- 
 ment ; but the more they do weigh and consider it, the 
 more reasonable they shall find it." This high estimate of 
 special pleading has always been, and continues to be, en- 
 tertained by the English nation, as represented in their 
 Courts, and in their Parliament, and by their best writers 
 upon judicial polity. 
 
 These opinions and sentiments of the English nation were 
 brought to Maryland with the institutions to which they 
 pertain. The Maryland legislature, as early as the year, 
 1763, passed an act directing the Courts of law to give 
 judgment according to the merits of causes, without any 
 regard to such defects in the pleadings as had been matters 
 of special demurrer. This was a step in the simplification 
 of pleading, beyond what had been done in England ; yet 
 it was only a step in the same direction, being merely the 
 abolition of those technicalities, which, by the statutes of 
 Elizabeth and of Anne, were to be disregarded by the 
 Courts, unless objected to by special demurrer. The phra- 
 seology of the act is borrowed from these British statutes,
 
 INTRODUCTION". 15 
 
 omittino; the clause whicli leaves the defects still oIduoxIous 
 to special demurrer. 
 
 In the year 1785, the legislature passed another act, 
 allowing " amendments to be made in all proceedings what- 
 ever before verdict, so as to bring the merits of the question 
 between the parties fairly to trial." In the year 1809, 
 another act was passed, making the verdict cure all formal 
 defects in both writs and pleadings. 
 
 The reform convention, in the year 1851, introduced into 
 the constitution, which they framed for Maryland, a clause 
 requiring the legislature, at their first session thereafter, 
 to appoint commissioners to simplify the Pleadings and 
 Practice in the Courts of the State. In accordance with 
 this provision, the legislature, at the session of 1852, 
 appointed the commissioners ; and also passed an act going 
 so far as to authorise the original writ or summons to " be 
 amended from one form of action to another, when the 
 ends of justice require it." This act, and all those which 
 preceded it, are a progress in the same direction of the 
 British statutes mentioned above, and with them show 
 towards what end, law reform was, and had been long, 
 striving. It was endeavoring to rid law procedure of 
 the technical niceties which spring out of forms of action. 
 For in truth, it is, out of forms of action, that most of 
 those formal niceties spring, the omission of which in 
 pleadings was ground for general demurrer in the earlier 
 practice, and afterwards, under the statutes of Elizabeth 
 and of Anne, of special demurrer. Now, the simplifica- 
 tion, which it is the purpose of the following treatise 
 to expound, is only a further step in this groat reform, 
 which has been progressing slowly, in a true conserva- 
 tive spirit, for centuries. Forms of action are abolished ; 
 and thereby, law procedure, and especially pleading, is 
 released from the fetters which all the British statutes, 
 and the Maryland acts of amendment, have, from time 
 to time, been relaxing and loosening. Instead of having 
 the difficulties, if not impossibilities, of changing one
 
 1() INTRODUCTION. 
 
 form of action to another as allowed by the act of 1852, 
 all that is now necessary to enable a plaintift' to make his 
 pleadings conform to the justice of his case, is to amend his 
 declaration by simply adding to it one or more counts, as 
 will be seen in the treatise following. 
 
 There is, therefore, no new or radical reform ushered in. 
 The simplification is only what the experience of centuries 
 has. as it were, commanded to be done. It is but one more 
 step up the path of judicial reform. A reform exactly 
 parallel has been effected in England, abolishing forms of 
 action, and simplifying pleadings. Maryland is, therefore, 
 trying no mere experiment; but is acting upon the experi- 
 ence of centuries accommodated to the exigencies of the 
 present times.
 
 uiits fo Eit §.ction 
 
 Whe2n" application is made to a lawyer, for liis profes- 
 sional advice, the question arises, wlietlier the right claimed 
 or redress sought, if any, be in one person or more than 
 one. If it be in one, the action, if brought, must be in the 
 name of that person alone ; but, if it be in more than one, 
 the action must be in the names of all. So, on the other 
 hand, if the obligation or liability be upon one person only, 
 the action must be brought against that person alone; but 
 if it be upon more than one person, the action must be 
 brought against all the persons bound or liable ; and if the 
 obligation or liability be both joint and several, it may be 
 '^sued either way. Hence springs up the doctrine of the 
 joinder of parties. Plaintiffs, and Defendants, as the persons 
 suing and sued are respectively called. But the doctrine of 
 parties to an action does not, in strictness, belong to Plead- 
 ing; and therefore, does not fall within the scope of this 
 treatise. I refer the reader to the first chapter of the first 
 volume of Chitty on Pleading, where the law of parties to 
 an action is treated with great discrimination, great fulness, 
 and a learned reference to authorities.
 
 PROCEDURE AXD PLEADING. 
 
 CHAPTER I. 
 
 PROCEDURE PRELIMINARY TO PLEADING. 
 
 Pleading is so intimately connected wifh the preliminary 
 procedure, which takes place in actions at law before the 
 pleadings begin, that, in simplifying the pleadings it was 
 thought advisable, on account of its practical advantages, 
 to consider the two subjects together, and commence with 
 the original writ, and simplify the whole course of proce- 
 dure down to the judgment inclusive; so that every step, 
 in an action at law, might be seen, in the order in which it 
 occurs in practice, with each rule and each form standing 
 in its proper place of succession. The "^Act, therefore, 
 simplifying Pleading, embraces the preliminary procedure 
 also ; and I shall in this treatise pursue the order of the 
 Act, and consider the preliminary procedure before I treat 
 of Pleading. And as the Act is divided into three chap- 
 ters: the first embracing the preliminary procedure; the 
 second embracing the rules of pleading ; and the third em- 
 bracing the forms of pleading, I have divided this treatise . 
 accordingly, and treated the respective subjects in three 
 chapters in the order of the Act. 
 
 It is impossible to understand the simplified preliminary 
 procedure, which I now propose to expound, without ad- 
 verting to this procedure as it stood before the simplification. 
 
 There were, under the old system, what were called Forms 
 of Action. Actions at law arise either out of some contract 
 or out of some wrong ; causes of action, therefore, are classed 
 
 * Act Assem. 185G, Ch. 112.
 
 20 PRELIMINARY PROCEDURE. 
 
 under two headS; those of contract and those of wrong. 
 Each of these classes embraces many different causes of 
 action. Out of this grew, what were called Forms of Action. 
 Each cause of action was expressed in j)eculiar set words. 
 These words constituted the Form of action, while the thing 
 signified by them constituted the Cause of action. But these 
 set words, which constituted the Form of action, did not 
 give any definite insight into the Cause of action. The 
 thing signified by the set words was so vague as to give no 
 available information as to what an action was brought for. 
 A writ, for example, notified the Defendant, " to ansiver in a 
 plea of iresjjass on the caseP All the information, as to the 
 cause of action, was given in those words. And even to 
 the lawyer, they meant .almost any thing. They might 
 mean injuries which consist of a non-feasance or omission; 
 or of actual or implied negligence ; or injuries committed 
 -by fraud or deceit ; or injuries to property of the Plaintiff''s 
 in the Defendant's possession; or injuries to reversionary 
 interests; or injuries to reputation and other incorporeal 
 rights ; or injuries affecting the domestic relations ; or inju- 
 ries effected without direct interference with the Plaintiff" 's 
 person or property ; or all injuries for which there was no 
 other remedy. The words "^:>?ea of tresiMss on the case,''^ 
 might mean any of these various causes of action. And, to 
 show how idle were many of the distinctions on which a 
 difference in the Form of Action was based, I will refer to 
 that between the action on the case of which I have just 
 spoken, and the Action of Trespass. The criterion of dis- 
 tinction was, that the one was for an injury produced by 
 immediate force, and the other for an injury produced by 
 remote consequences of an act. If the Defendant threw a 
 log in the street and it fell upon the Plaintiff" and broke his 
 arm, trespass was the remedy ; but if the Plaintiff' fell over 
 the log and broke his arm, the remedy was case. ^hQ formal 
 diflerence between these two actions, consisted in the inser- 
 tion or omission of the words, '"'■ ivith force and arnisP If the 
 Plaintifi* had his arm broken in the way first mentioned, he
 
 PRELIMINARY PROCEDURE, 21 
 
 must use these words in the writ, or lie would fail in liis 
 action ; and if lie liad it broken in tlie way last mentioned, 
 he must leave out these words, or he would fail in his action. 
 Upon such distinctions were founded the Forms of Action ; 
 and there was a distinct Avrit for each Form of Action. 
 The practitioner, therefore, had to determine for his client 
 what was the Form of Action suited to his case. This fre- 
 quently was a matter of difficulty, even when the precise 
 state of facts could be ascertained : but when a different 
 state of facts, from that to which the Form of Action had 
 been adapted, was proved at the trial, the Plaintiff must 
 lose his case, though the state of facts proved constituted a 
 good cause of action. And every step, in the whole course 
 of law procedure, including the pleadings and even the judg- 
 ment, was more or less embarrassed by the Forms of Action. 
 
 The practice of using forms of action in Maryland was 
 always absurd. In England the practice was sensible 
 enough. There, an original writ, showing the real cause 
 of action, issued out of Chancery, in the first instance, and 
 informed the Defendant for what he was sued. A writ, cor- 
 responding to our Capias or Summoyis, containing the mere 
 form of the action in the original writ, then issued out of the 
 Court to which the original writ had been returned, to bring 
 the Defendant into Court. These original writs can be seen 
 in the first part of Stephen on Pleading. They set forth 
 the cause of action almost as fully as the declaration. In 
 Maryland the original writs were never used: but the Capias 
 or tSummons^ which does not set forth the cause of action, 
 but only the form, issued in the first instance, leaving the 
 party sued without any information as to the precise cause 
 of action. I refer the student of law, to the second chapter y' 
 of the first volume of Chitty on Pleading, for a subtle, per- 
 spicuous and learned treatment of the doctrine of Forms of 
 action, which should be studied, though it is now of no 
 practical use in Maryland, as we shall presently see. 
 
 Under the system of simplified pleading. Forms of Action 
 arc abolished: and there arc now only three writs by which
 
 t 
 
 22 PRELIMINARY T R C E D U R E. 
 
 actions are brouglit. These three writs are founded on 
 differences in causes of action that exist in the nature of 
 things. One writ, called a Summons, applies to all actions 
 brought for the recovery of money, whether founded in 
 ' contract, or in ^\Tong; another writ, called Beplevin^ applies 
 to actions brought for the specific recovery of personal pro- 
 perty ; and the other writ, called "Ejectment^ applies to all 
 actions brought for the specific recovery of real property. 
 The distinctions of money^ personal property^ and real pro- 
 perty^ exist in nature, and cannot be confounded in law pro- 
 cedure, without confusion in the administration of justice. 
 But to split, the process to recover money, into a great 
 diversity of Forms of action, such as Debt, Covenant, De- 
 tinue, Trespass, and Trespass on the case, Avith varieties 
 under the last two, as was done under the old system of law 
 procedure, was of no advantage, while it was founded in a 
 subtle artificial theory hard to be learned, and still harder 
 to be practiced. 
 
 Before the New Constitution, there were two modes by 
 which Defendants were informed, that an action at law was 
 brought against them: 1. The Summons; 2. The Capias. 
 
 The Summons commanded the Sheriff to notify the De- 
 fendant to appear in Court on a certain day to answer the 
 action of the Plaintiff. 
 
 The Capias commanded the Sheriff to take the body of 
 the Defendant, and have him before the Court, on a certain 
 day, to answer the action of the Plaintiff. 
 
 By the New Constitution, imprisonment for debt was 
 abolished; and thereby the writ of Capias was abrogated. 
 The Summons then became the only mode allowed by the 
 Constitution for bringing an action at law to bear upon a 
 Defendant ; and thus all the writs for instituting actions at 
 
 * This treatise does not embrace the procedure in Ejectment. A 
 special report, with simplified procedure, has been made on Ejectment 
 by Mr. Price, my colleague ; and in it, a writ of Ejectment has been 
 provided as the first step in the action. Under the old law, there was 
 no writ ; the declaration being the first step.
 
 PRELIMINART PROCEDURE, 23 
 
 law had, before tlie simplification, assumed tlie form of ttie 
 Summons, which merely notifies the defendant to appear in 
 Court, and does not command his body to be taken. The 
 Act of Simplification, therefore, merely renders it unneces- 
 sary to mention any form or cause of action in the writ of 
 SuAmons ; because the Summons was virtually established 
 by the Constitution, as the only writ for the cases to which 
 it is applied by the Act of Simplification. The first four 
 sections of the Act are in these words : 
 
 1. "All personal actions, except Eeplevin, brought in 
 any Court of Law in this State, shall be commenced by 
 Writ of Summons ; and the said writ shall be issued by the 
 clerks of the said Courts respectively, directed to the sheriff 
 or other proper ofiicer. 
 
 2. " It shall not be necessary to mention any Form or 
 Cause of Action in any writ of summons. 
 
 3. " Every Writ of Summons shall contam the name or 
 names of the Plaintifl" or Plaintiffs, and of the Defendant or 
 Defendants; and shall state the day and the place when 
 and where the Defendant or Defendants is or are to appear 
 to answer the Action ; and shall bear date on the day on 
 which the same shall be issued ; and shall be tested in the 
 name of the Judge of the Court from which it shall issue ; 
 and shall be signed, and sealed with the seal of the Court, 
 by the Clerk thereof. 
 
 4. "The Writ of Summons shall be in the following 
 form: 
 
 " County {or City) to wit : 
 
 State of Maryland to the Sheriff' {or other proper officer) of 
 greeting : 
 
 You arc hereby commanded to summon {here insert the 
 name or names of the Defendant or Defendants) of
 
 21 PKELIMIXARY PROCEDURE. 
 
 County {or City) to appeur "before the (liere insert the name 
 of the Court) to be held at (Jiere msert the name of the place) 
 in and for (Jiere insert the name of the County or City) on the 
 
 day of next, to answer an Action at the suit of 
 
 (Jiere insert the name of the Plaintiff or Plaintiffs?) 
 
 And have you then and there, this writ. Witness, the 
 
 Honorable , Judge of the said Court, the day of 
 
 , in the year &c. 
 
 (Signed,) 
 
 , Clerk." 
 
 It will be seen, that, by the third section of the Act, the 
 writ must be tested of the day on which it is issued, and 
 not, as under the old practice, of the first day of the term. 
 Thus, there is but one date to the writ, serving both to 
 show the day it issues, and of its attestation in the name of 
 the judge of the Court, 
 
 Before the Action can be brought, the Plaintiff or his 
 attorney must deliver to the Clerk of the Court, a Memo- 
 randum in writing, of the Action to be brought. The 
 Memorandum corresponds with the Titling^ as it was called 
 under the old Maryland practice, and with the Pr(jecijpe 
 under the English. It is an authority to the Clerk for 
 docketing the Action and issuing the Summons. For, as 
 every person, not under some personal disability, — as non- 
 age or coverture, can bring an Action, it being ex dehitojus- 
 titice, and not ex gratia^ the Clerk is bound by the duty of 
 his office to issue the Summons. And while the Memoran- 
 dum imposes a duty on the Clerk, it gives him an authority 
 to issue the Summons which cannot be disputed. The 
 Memorandum is prescribed and regulated by the fifth sec- 
 tion of the Act of Simplification in these words : 
 
 5. "Before the issuing of any "Writ of Summons, the 
 Plaintiff, or Plaintiffs, or his, her, its or their Attorney, shall 
 deliver a Memorandum in writing according to the follow 
 ino; form, or to the like effect :
 
 PRELIMINARY PROCEDURE. 25 
 
 " A Plaintiff ao;ainst C. B., \ E. S. Clerk of tlie 
 
 or 
 
 against 0. B. and D. E ) Issue in this case. 
 
 Brouglit tlie day of 18 — 
 
 Signed " 
 
 " Sucli Memorandnm to be delivered to the Clerk of tlie 
 Court, and to be dated on the day of the delivery thereof, 
 and signed by the Plaintiff or Plaintiffs, or his, her, its or 
 their Attorney." 
 
 Thus far, I have been showing, what is required of the 
 Plaintiff, by the Statute of Simplification, in bringing a suit. 
 I will now show what the Statute enacts in regard to the 
 Defendant. 
 
 The Defendant does not become an actor, or party to the 
 action, until he has been legally notified of it, by the service 
 of the Summons upon him personally, by the Sheriff or other 
 proper of&cer. It then becomes the duty of the Defendant 
 to answer to the action, by appearing to it, according 
 to the mode pointed out by the Statute of Simplification. 
 But it may happen, that the Sheriff cannot serve the Sum- 
 mons on the Defendant. In such case, when the Sheriff 
 reports to the Court, or, as it is called, makes his return, that 
 the Defendant, "cannot be found," as he is obliged to do, 
 on the return day of the Summons, the Action would be 
 dead, and a new one would have to be brought, if the Sum- 
 mons could not be renewed in the Action already brought. 
 Accordingly, the writ instituting an action has always been 
 renewable, from Court to Court, until the Defendant is 
 found. Under the simplified practice, the renewal of the 
 Summons is regulated by the sixth section of the Act of 
 simplification, whicli is in these words : 
 
 6, "If any Defendant or Defendants named in any writ 
 of Summons shall not have been served therewitli, l)y tlie 
 return day of the Writ, such writ may be renewed, at any
 
 26 PRELIMINARY PROCEDURE. 
 
 time "before tlie next term of the Coiirt, and be returnable 
 to tlie same, and may be so renewed and returnable again 
 to succeeding- terms, as long as may be necessary ; and a 
 writ of Summons so renewed sliall remain in force and be 
 available to prevent the operation of any statute whereby 
 the time for the commencement of the action may be 
 limited, and for all other purposes, from the date of the 
 issuing the original writ of Summons." 
 
 The returns, which the Sheriff is to make to the Sum- 
 mons, and the mode of making them, are pointed out by 
 the seventh section of the Act of Simplification in these 
 words : 
 
 7. " The Sheriff or other person serving the writ of Sum- 
 mons, shall endorse on the same, 'summoned,' or 'cannot be 
 found,' or ' is dead," or as the case may be." 
 
 The mode of serving the Summons is pointed out by the 
 eighth section of the Act of Simplification in these w^ords : 
 
 8. " The service of the writ of Summons shall be as here- 
 tofore, personal." 
 
 It may happen, that though the Defendant has been sum- 
 moned, he neglects to appear to the action. As imprison- 
 ment for debt is abolished, there is now no mode of com- 
 pelling the defendant to appear. The whole subject of the 
 appearance of the Defendant, whether there be only one 
 defendant or more than one, and whether none appear, or 
 only some appear, is regulated by the ninth, tenth and 
 twelfth sections of the Act of Simplification. The sections 
 are as follows : 
 
 9. "In any Action brought against two or more Defend- 
 ants, if one or more of such Defendants, only, shall ajDpear, 
 and another or others of them shall not appear : provided
 
 PRELIMINARY PROCEDURE. 27 
 
 tlie writ of Summons has been served upon sncli as do not 
 appear, it sliall be lawful for the Plaintiff or Plaintiffs to 
 declare against all of the Defendants, and proceed as if they 
 all had appeared. 
 
 10. " A Defendant or Defendants may appear at any time 
 before judgment; and if he, she, or they appear after the 
 time specified in the writ of Summons, he, she or they shall, 
 after notice of such appearance to the Plaintiff or Plaintiffs, 
 or his, her or their Attorney, as the case may be, be in the 
 same position as to Pleadings and other proceedings in the 
 Action, as if he, she, or they had appeared in time : pro- 
 vided always, that a Defendant, appearing after the return 
 day in the writ, shall not be entitled to any farther time for 
 pleading or any other proceeding, than if he had appeared 
 within the appointed time. 
 
 12. " In any case where the Defendant has been sum- 
 moned, and does not appear by the return day of the writ, 
 the Plaintiff' may proceed as if he, she or it had appeared." 
 
 It is observable, that, by these sections, whether a De- 
 fendant appears or not, if he has been summoned, the Plain- 
 tiff can proceed in his action and obtain judgment against 
 him just as though he had appeared. 
 
 If the Defendant does appear to the action, he must do it 
 in the mode prescribed by the eleventh section of the Act 
 of simplification. This section, which for the sake of the 
 better logical order, I am considering out of its order in the 
 Act, is in these words : 
 
 11. " The mode of Appearance to every writ of Summons, 
 shall be by delivering a Memorandum in writing according 
 to the following form, or to the like effect;
 
 28 PRELIMINARY PROCEDURE. 
 
 "A Plai ntifF against C.B., \ The Defendant C. B. 
 
 or / appears in person, 
 
 against C. B. and another, ) or 
 
 or \ S. T., Attorney for C. B., 
 
 against C. B. and others. / appears for him. 
 
 Signed " 
 
 Such Memorandum to be delivered to the Clerk of the 
 Court, and to be dated on the day of the delivery thereof, 
 and signed by the Defendant or Defendants, or his, her, its 
 or their Attorney." 
 
 The Memorandum, required by this section, to be signed 
 and delivered to the Clerk of the Court by the Defendant 
 or his Attorney, like the one required from the Plaintifi' 
 when he brings his action, is intended as a protection to 
 both the Defendant or his Attorney and the Clerk. Though 
 of rare occurrence, it has nevertheless happened, that judg- 
 ment has been found confessed on the docket of the Court, 
 by an Attorney, when he has declared that he had no recol- 
 lection of any such action, and that he never authorized 
 the appearance entered on the docket, nor confessed the 
 judgment ; while the Defendant was wholly ignorant of any 
 such action ha-ving been brought against him. It is to pre- 
 vent any such occurrences as these and other difficulties, 
 which sometimes occurred under the old practice, that this 
 Memorandum is required to effect an appearance. 
 
 I have now passed, in review, the whole law regulating 
 actions brought by summons, which embrace nine-tenths or 
 more of all actions at law, under the Act of Simplification. 
 Under the old practice, with all the abstruse and technical 
 doctrine in regard to Forms of action, it would require 
 months of labour, from the student, to master the amount 
 of practice in conducting an action, which, under the sim- 
 plified practice, he can acquire in a few days.
 
 PRELIMINARY PROCEDURE. 29 
 
 EEPLEYIN. 
 
 The next subject wliich will occupy our attention, is the 
 Action of Replevin. Many changes are effected in this 
 action, by the Act of simplification. Eei^levin is an ancient 
 writ, used from the earliest times in England, and was 
 brought, with other legal process, by our ancestors, to 
 Maryland. In England the scope of the writ was very 
 narrow. " Replevin (says Chitty in the first volume of his 
 Pleading) is now seldom brought but for distresses for rent, 
 damage feasant, poor's rate, &c." In Maryland it has been 
 enlarged and made the special remedy for trying the title 
 to any personal property, by taking it out of the possession 
 of the person holding it, and delivering it to the person 
 claiming it ; the person claiming it being required to give 
 a bond, before the issuing of the writ, to prosecute his claim 
 with effect, else to return the property to the person from 
 whom it was taken. By the Act of Assembly, 1825, Chap. 
 65, Replevin is also made a remedy for the recovery of an 
 apprentice. The Act of Simplification has not narrowed the 
 scope of the writ :« but it has simplified the form of the writ 
 and also the practice under it; as well as extended the 
 action of Replevin, by a new device, to cases coming under 
 the action of Replevin, whicn, on account of dilficulties 
 when a defendant resides in one Coanty or jurisdiction, and 
 the goods sought to be replevied are in another, it did not 
 seem to reach. 
 
 There are two commands in the writ of Replevin : one, 
 to replevy and deliver the property claimed to the plaintiff; 
 the other, to summon the defendant to appear in Court to 
 answer to the action. If the Sheriff found the property, he 
 reported or returned, as it is called, to the Court that he 
 had replevied and delivered the property to the plaintiff. 
 If he could not find the property, he reported or returned, 
 to the Coui't, that the property was eloigned, that is, taken
 
 30 TRELIMINARY TROCEDURE. 
 
 away. When tlie property was returned eloigned^ then, 
 Avhat was called, an alias writ of Replevin issued, and on 
 the return of eloigned on this, a pluries writ of lieplevin 
 issued, and on a like return to this, Avhat was called a Ca- 
 pias in Withernam issued. This practice is well discussed 
 in Evans' Maryland Practice. 
 
 By the Act of Simplification the Alias^ Pluries^ and Ga- 
 pias in Withernam writs are abolished; and upon the return 
 of eloigned^ the Replevin is renewable like the Summons : 
 or the plaintiff' may, which he could not do under the old 
 law, declare only for damages, and recover the value of the 
 property instead of the property itself. These changes in 
 the law will appear by t]ie thirteenth and twentieth sections 
 of the Act of Simplification, which are in these Avords : 
 
 13. "The Action of Replevin shall be brought for the 
 specific recovery of personal property, and for damages for 
 the detention of the same ; and in case of the property being 
 eloigned for damages only, and costs." 
 
 20. "In case of the return by the Sheriff of 'Eloigned' 
 to any Writ of Replevin, the writ may be served in the 
 same manner as the Writ of Summons* and no alias or 
 pluries Writ of Replevin, or Ca2nas in Withernam shall 
 hereafter be used. And upon the renewal or renewals of 
 such Writ of Replevin, the fiond upon which the first writ 
 was issued shall be responsible." 
 
 The form of the Writ of Replevin as simplified, is pre- 
 scribed by the fourteenth and fifteenth sections of the Act 
 of Simplification, which are in these words : 
 
 14. "The Writ of Replevin shall specify the particular 
 goods and chattels to be replevied, and shall contain the 
 name or names of the Plaintifl:' or Plaintifiis, and of the De- 
 fendant or Defendants ; and shall contain a summons for the 
 Defendant or Defendants to appear before the Court, and
 
 PRELIMINARY PROCEDURE. 31 
 
 \ 
 
 shall state tlie time and tlie place for sncli appearance ; and 
 
 shall bear date on the day on which it shall be issuied ; and 
 shall be tested in the name of the Judge of the Court from 
 which it shall issue ; and shall be signed and sealed with 
 the seal of the Court, by the Clerk thereof. 
 
 The Writ of Eeplevin shall be in the following form : 
 
 " County {or City) to wit : 
 
 State of Maryland to the Sheriff {or other p-0])er officer) 
 of , greeting : 
 
 You are hereby commanded to replevy and deliver to 
 {Jiere insert the name or names of the Plaintiff or Plaintiffs) 
 the following goods and chattels (Jiere insert them) which a 
 certain {Jiere insert the name or names of the Defendant or 
 
 Defendants) of County {or City) unjustly withholds 
 
 from the said Plaintiff or Plaintiffs, and to summon the said 
 {Defendant or Defendants) to appear before the {Jiere insert the 
 name of the Court) to be held at {here insert the place) in and 
 
 for {here insert the County or City) on the day of 
 
 next, to answer an action at the suit of {here insert the name 
 or names of the Plaintiff or Plaintiff^s.) 
 
 And have you then and there this Writ. 
 
 Witness the Honorable , Judge of the said Court, 
 
 the day of , in the year, &c. 
 
 Signed, 
 
 , Clerk." 
 
 In order to bring an action of Eeplevin, it is not necessary 
 to deliver to the Clerk a Memorandum, as is required before 
 issuing a Writ of Summons ; as a bond is required to be 
 given, and this serves the purpose of the Memorandum. 
 The sixteenth section of the Act of Simplification regulates 
 the matter, and is in these words : 
 
 16. "It shall not be necessary for the Plaintiff or Plaintiffs 
 in an Action of PtC})lcvin, to deliver to the Clei'k of the Court
 
 32 PRELIMINARY PROCEDURE. 
 
 a Memorandum in writing, as is required to be done before 
 the issuing of a Writ of Summons, but the Writ of Eeplevin 
 shall be issued by the Clerk of the Court, upon a proper 
 Bond being delivered to him, and the other pre-requisites 
 of the law, if any, complied with." 
 
 The mode of appearance however is the same to a Writ 
 of Eeplevin as to a Summons, as is seen by the seventeenth 
 section of the Act of Simplification, which is as follows : 
 
 17. "The mode of appearance to a Writ of Eeplevin by 
 the Defendant or Defendants, shall be by delivering a Memo- 
 randum in writing to the Clerk of the Court, like the one 
 required for appearing to the Writ of Summons." 
 
 In case the Defendant when summoned, does not appear 
 on or before the fourth day of the term of the Court, next 
 succeeding that to which return is made ; the Court, on 
 motion by the Plaintiff, shall enter judgment for the pro- 
 perty replevied, and for damages on proof of any, and costs. 
 This is authorized by the eighteenth section of the Act of 
 Simplification, in these words : 
 
 18. " In all actions of Eeplevin, if the Defendant or De- 
 fendants shall be returned ' Summoned,' and shall not appear 
 in person or by Attorney, on or before the fourth day of the 
 term, nest succeeding that to Avhich such return shall be 
 made, the Court shall be authorized and required, on mo- 
 tion, to enter up judgment for the Plaintiff or Plaintiffs for 
 the property replevied, and for damages in the discretion of 
 the Court, upon satisfactory proof of any, and costs ; which 
 judgment shall be as valid and effectual, as any judgment 
 rendered on the verdict of a jury." 
 
 The returns to the Writ of Eeplevin to be made by the 
 Sheriff, are prescribed by the nineteenth section of the Act 
 of Simplification, in these Avords :
 
 PRELIMINARY PROCEDURE. 33 
 
 19. "The Sheriff or other person serving the Writ of 
 Eeplevin shall endorse on the same, ' Keplevied and De- 
 livered ' or ' Eloigned,' as a return to that part of the writ 
 which directs the Eeplevin ; and on the part of the writ 
 which directs the Defendant or Defendants to be summoned, 
 the same returns as on the Writ of Summons." 
 
 This section is so plain in its import, that it does not 
 need exposition. 
 
 Under the old practice, when one or more of the Defend- 
 ants, in an action of Eeplevin, resided in a different County 
 from that in which the goods and chattels to be replevied 
 were situated, there was a difficulty, if not an impractica- 
 bility, in enforcing the action. To remedy the omission, 
 the Act of Simplification, by the twenty-first, twenty-second, 
 twenty-third, twenty-fourth and twenty-fifth sections, has 
 provided a mode of proceeding unknown to the old prac- 
 tice. The sections are as follows : 
 
 21. "If, in any action of Eeplevin, the Defendant or 
 Defendants, or any one or more of them, shall reside in a 
 diSerent jurisdiction or jurisdictions in the State, from that 
 in which the goods and chattels to be replevied are, there 
 shall, at the time the Writ of Eeplevin is issued, or upon 
 the return of the same, be a notice or notices in writing 
 sent through the Post Office, by the Clerk of the Court from 
 which the writ issues, to the Sheriff or Sheriffs of the 
 County or Counties or City in which the Defendant or 
 Defendants reside, to be served upon the Defendant or 
 Defendants, notifying him, her, it or them that such writ has 
 been issued; and it shall be returnable on the same day 
 with the writ, when it is issued simultaneously with it, but 
 returnaVjle at the next term, when it is issued upon the 
 return of the writ. 
 
 22. "The notice required by the preceding rule shall be 
 as follows :
 
 34 PRELIMINARY PROCEDURE. 
 
 County {or City) to wit :■ 
 
 State of Maryland, to the Sheriff (or other proper olliccr) 
 of greeting : 
 
 You are hereby commanded to notify {here insert the name 
 or names of the Defendant or Defendants to be notified) that 
 {here insert the name or names of the Plaintiff or Plaintiffs) 
 has or have issued out a Writ of Keplevin from {here insert 
 the name of the Court) against certain goods and chattels in 
 the County {or City) aforesaid, which the said {here insert the 
 7iame or names of the Plaintiff or Plaintiffs) says the said 
 \liere insert the name or names of the Defendant or Defendants 
 to be notified, and also the name or names of those, if any^ ivho 
 reside in the County or City where the goods and chattels are,) 
 withhold or withholds from him, her or them ; and that he, 
 she or they appear before the said Court to be held at {here in- 
 sert the place) on the day of next to answer said suit. 
 
 And*return you then and there, this notice. 
 
 Witness the Honorable Judge of the said Court, 
 
 the day of in year, &c. 
 
 (Signed) 
 
 Clerk." 
 
 24. "Before the issuing of any Notice in an Action of 
 Replevin, the Plaintiff or Plaintiffs, or his, her, its or their 
 Attorney shall deliver a Memorandum in writing, according 
 to the following form or to the like effect : 
 
 " In the Action of Replevin brought by {here insert the 
 name or names of the Plaintiff or Plaintiffs) against {here in- 
 sert the name or names of the Defendant or Defendants) A. B. 
 {or A. B. and C. D. cfcc.) Defendant {or Defendants) resides in 
 {here insert the County or City.) 
 
 Give him, her, it or them, notice of the Action. 
 
 Delivered the day of 18 — 
 
 (Signed,) 
 
 To E. T., Clerk, <S:c.
 
 PRELIMINARY PROCEDURE. 35 
 
 Sucli Memorandum to be delivered to the Clerk of the 
 Court, and to be dated on the day of the delivery thereof, 
 and signed by the Plaintiff or Plaintiffs, or his, her, its or 
 their Attorney. 
 
 24. " And in case the Defendant or Defendants so residing 
 in a different jurisdiction shall be returned 'Notified,' and 
 shall not appear in person or by Attorney on or before the 
 fourth day of the term next succeeding that to which such 
 return shall be made, the Court shall be authorized and 
 required, on motion to enter up judgment for the Plaintiff 
 or Plaintiffs for the property replevied and for damages in 
 the discretion of the Court, upon satisfactory proof of any, 
 and costs; which judgment shall be as valid and effectual 
 as any judgment rendered on the verdict of a Jury. 
 
 25. "And such Notice to a Defendant or Defendants, 
 residing in a different jurisdiction, shall, upon a return of 
 "cannot be found," be renewable, in the same manner as a 
 writ of Summons, against any Defendant not served there- 
 with." 
 
 We have now passed in review, the whole initiatory pro- 
 cess, in personal actions. Under the old practice, it was an 
 exceedingly complex and subtle title, requiring long study 
 and large practical experience, to master its principles and 
 its practical details. Under the simplified procedure, as I 
 have expounded it, all those perplexing questions about the 
 form of action, or the proper writ to be issued, in a given 
 case, are entirely excluded from practice. And as there are 
 only two writs in personal actions, under the simplified pro- 
 cedure, the only question which can arise, is as to the choice 
 between these two, — Summons and Replevin. About this, 
 there can, of* course, never be a mistake; as Kcplevin is 
 confined to the specific recovery of personal pro})crty, and 
 by the Act of Assembly 1825, Ch. 05, for the recovery of 
 an a))])rcntice. lu all other cases, except for the s})ccilic
 
 36 PRELIMINARY PROCEDURE. 
 
 recovery of land, the proper writ is the Summons, The 
 student, when he enters upon the study of Liw procedure, is 
 supposed, to be familiar with tlie doctrine of causes of 
 action, or, in other words, to have a correct knowledge of 
 legal rights and wrongs remediable at law. Law procedure 
 merely teaches, the modes of enforcing rights and redressing 
 wrongs. 
 
 JOINDEE OF PARTIES TO AN ACTION. 
 
 In a previous part of this treatise, I called attention to 
 the subject of Parties to an Action, and said that the law of 
 the subject did not pertain to Pleading, and consequently, 
 did not come within the scope of this treatise. Though this 
 be so, yet it pertains to procedure preliminary to Pleading, 
 to regulate the practice in regard to the non-joinder and 
 the mis-joinder of parties both Plaintifi" and Defendant. 
 For it may happen, that persons have not been joined as 
 Plaintiffs in an action who ought to have been joined, or 
 that persons have been joined as Plaintiffs who should not 
 have been joined ; and the same non-joinder or mis-joinder 
 may happen in regard to defendants. This error will have 
 been committed, if at all, upon the return of the Summons, 
 as it must originate in the Memorandum of the Plaintiff 
 filed at the bringing of the Action, and should be rectified 
 as soon as known to the Defendant, so as to produce as 
 little embarrassment and delay in the action as possible. 
 The subject therefore comes properly within procedure 
 preliminary to Pleading, and is embraced in the Act of 
 Simplification. 
 
 JOINDER OF PLAINTIFFS. 
 
 The practice in regard to the errors of non-joinder and 
 the mis-joinder of Plaintiffs is regulated by the twenty-sixth,
 
 PRELIMINARY PROCEDURE. 37 
 
 twenty-seventli, and twenty-eiglitli sections of tlie Act of 
 Simplification. The sections are as follows : 
 
 26. "It shall and maybe lawful for the Conrt, at any 
 time before the trial of a cause, to order that any person or 
 persons, not joined as Plaintiff or Plaintiffs in such cause, 
 shall be so joined, or that any person or persons, originally 
 joined as Plaintiff or Plaintiffs shall be struck out from 
 such cause, if it shall appear to the Court that injustice will 
 not be done by such amendment, and that the person or 
 persons to be added as aforesaid, consent, either in person 
 or by writing under his, her or their hands, to be so joined, 
 or that the person or persons to be struck out as aforesaid, 
 were originally introduced without his, her or their consent, 
 or that such person or persons consent in manner aforesaid 
 to be struck out; and such amendment shall be made npon 
 such terms as to the amendment of the pleadings, (if any,) 
 postponement of trial, and otherwise, as the Court shall think 
 proper; and when any such amendment shall have been 
 made, the liability of any person or persons who shall have 
 been added as Co-plaintiff, or Co-plaintiffs shall, subject to 
 any terms imposed as aforesaid, be the same as if such person 
 or persons had been originally joined in the cause. 
 
 27. "In case it shall appear at the trial of any action, 
 that there has been a misjoinder of Plaintiffs, or that some 
 person or persons not joined as Plaintiff or Plaintiffs ought 
 to have been so joined, such misjoinder or non-joinder may 
 be amended as a variance at the trial, if it shall ap})ear to 
 the Court that injustice will not be done by sucli amend- 
 ment, and that the person or persons to be added as afore- 
 said consent either in person or by writing, under his, her 
 or their hands, to be so joined, or that the person or per. 
 sons, to be struck out as aforesaid, were originally intro- 
 duced without his, her or their consent, or that such person 
 or persons consent in manner aforesaid to be so struck out, 
 and such amendment shall be made upon such terms as the
 
 38 PRELIMINARY PROCEDURE. 
 
 Court shall tliink proper ; and when any such amendment 
 shall have been made, the liability of any such person or 
 persons, who shall have been added as Co-plaintiff or Co- 
 plaintiffs, shall, subject to any terms imposed as aforesaid, 
 be the same as if such person or persons had been originally 
 joined in such action. 
 
 28. "In all cases where a plea in abatement of non- 
 joinder of a person or persons as Co-plaintiff or Co-plaintiffs 
 shall be pleaded, the Plaintiff" shall be at liberty, without 
 any order of the Court, to amend the writ and other pro- 
 ceedings before plea, by adding the name or names of the 
 person or persons named in such plea, and proceed in the 
 action without any further appearance, on payment of the 
 costs of, and occasioned by such amendment only, and in 
 such case, the Defendant shall be at liberty to plead de 
 novoy 
 
 By the twenty-ninth section of the Act of Simplification, 
 a husband is authorised to join, in an action where his wife 
 is necessarily joined with him, claims in his own right. 
 This provision is designed to prevent a multiplicity of 
 actions and unnecessary expenses. As for example : If a 
 husband and wife are both injured at the same time, and 
 by the same accident on a Eail-road, two actions would, 
 under the old law, have to be brought. And the proceed- 
 ings would have been very much like trying one case twice ; 
 as the accident would be the same, and the witnesses, for 
 the most part, the same. It is however optional with the 
 husband to bring one or more actions. The section of the 
 Act in regard to the matter is in these words : 
 
 29. " In any action brought by a man and his wife, in 
 respect of which she is necessarily joined as Co-plaintiff" it 
 shall be lawful for the husband to add thereto claims in his 
 own right ; and separate actions brought in respect of such 
 claims may be consolidated, if the Court shall think fit ;
 
 PRELIMINARY PROCEDURE. 39 
 
 provided, that in the case of the death of either Plaintiff, 
 such suit, so far only as relates to the causes of action, if 
 anj, which do not survive, shall abate." 
 
 JOINDER OF DEFENDANTS. 
 
 The Act of Simplification has applied the same principles 
 of practice to the non-joinder and the mis-joinder of De- 
 fendants which it has applied to Plaintiffs. The old law 
 has been changed : but the student can derive no practical 
 benefit from a rehearsal of it ; as it is abrogated, and is not 
 so connected with the new law as to shed light on it, as is 
 the case in some other parts of the work of Simplification. 
 The non-joinder and the mis-joinder of Defendants is regu- 
 lated by the thirtieth, thirty -first, and thirty-second sections 
 of the Act of Simplification. The sections are as follows : 
 
 30. "It shall and may be lawful for the Court in the 
 case of the joinder of too many Defendants in any action on 
 contract, at any time before the trial of such cause, to order 
 the name or names of one or more of such Defendants to be 
 struck out, if it shall appear to such Court that injustice 
 will not be done by such amendment ; and the amendment 
 shall be made upon such terms as the Court by whom such 
 amendment is made shall think proper ; and in case it shall 
 appear at the trial of any action on contract, that there has 
 been a misjoinder of Defendants, such misjoinder may be 
 amended, as a variance at the trial, in like manner as the 
 misjoinder of Plaintiffs has been before directed to be 
 amended, and upon such terms as the Court shall think 
 proper. 
 
 31. "In any action on contract where the non-joinder of 
 any person or persons as a Co-defendant or Co-defendants 
 has been pleaded in abatement, the Plaintiff shall be at 
 liberty, without any order, to amend the Writ of Summons
 
 40 PRELIMINARY PROCEDURE. 
 
 and the Declaration by adding tlic name or names of the 
 person or persons named in such plea of abatement as joint 
 contractors, and to serve the amended writ upon the person 
 or persons so named in such plea in abatement, and to 
 proceed against the original Defendant or Defendants, and 
 the person or persons in such plea in abatement : provided 
 that the date of such amendment shall, as between the 
 person or persons so named in such plea in abatement and 
 the Plaintiff, be considered for all purposes as the com- 
 mencement of the action. 
 
 82. " In all cases after such plea in abatement and amend- 
 ment, if it shall appear upon the trial of the action that the 
 person or persons, so named in such plea in abatement, was 
 or were jointly liable with the original Defendant or De- 
 fendants, and resided in the County or City where the 
 action is brought, the original Defendant or Defendants 
 shall be entitled as against the Plaintifts to the costs of 
 such plea in abatement and amendment; but if at such 
 trial it shall appear that the original Defendant or any of 
 the original Defendants is or are liable, but that one or 
 more of the persons named in such plea in abatement is 
 or are not liable as a contracting party or parties or does 
 or do not reside in the County or City where the action 
 is brought, the Plaintiff shall nevertheless be entitled to 
 judgment against the other Defendant or Defendants who 
 shall appear to be liable ; and every Defendant who is not 
 so liable shall have judgment, and shall be entitled to his 
 costs as against the Plaintiff, who shall be allowed the same, 
 together with the costs of the plea in abatement and amend- 
 ment, as costs in the case against the original Defendant or 
 Defendants who shall have so pleaded in abatement the 
 non -joinder of such person : provided, that any such De- 
 fendant who shall have so pleaded in abatement shall be at 
 liberty on the trial to adduce evidence of the liability of the 
 Defendants named by him in such plea in abatement, and
 
 PRELIMINARY PROCEDURE. 41 
 
 of their residence in the County or City where the action is 
 brought." 
 
 In the foregoing sections, the Plea in Abatement is fre- 
 quently mentioned ; the law of which, the Student is sup- 
 posed not, as yet, to understand. It will be treated of 
 hereafter in its proper place. Until then, the Student will 
 suspend his attention in regard to it. 
 
 JOINDEE OF CAUSES OF ACTION. 
 
 This is an important part of law procedure. When a 
 person has several different causes of action, and is about 
 to enforce them, it is important to know, whether he can 
 embrace them all in one action, or must bring more than 
 one. Under the old system of procedure this was an 
 exceedingly difficult matter to know. Forms of action, of 
 which I have heretofore spoken, created artificial distinc- 
 tions which prevented causes of action from being joined, 
 which in themselves might be conveniently tried together. 
 We have seen, that if a log of wood be thrown upon a man 
 and breaks his arm, he must under the old law bring an 
 action of trespass ; but if he falls over the log after it has 
 fallen, and breaks his arm, he must bring an action on 
 the case ; the difference in the forms of action consisting in 
 the insertion or omission of the words vi et armis. Now if 
 it so happened that a person had received injuries both 
 ways, from the same person, he could not have joined the 
 two causes of action in one suit ; because trespass and case 
 could not be joined. (1st Chit. Plead. 182. Saund. Ecp. 
 117, note h.) Forms of action created difficulties in two 
 ways ; first, in the application of the wrong form of action 
 to a particular case ; and secondly, in the mis-joinder of 
 forms of action. If a wrong form was ap})lied, it was fatal 
 to the action ; and if causes of action were joined which 
 the forms of action forbid, it was, fatal too.
 
 42 PRELIMINARY TROCEDURE. 
 
 The supposal of forms of action was, that they were 
 founded upon substantial distinctions which prevented in- 
 congruous and dissimilar causes of action from being incon- 
 veniently mixed together in the same suit. But this is not 
 so. For causes the most dissimilar in their intrinsic nature 
 might be joined under the doctrine of forms of action, 
 while those almost identically alike could not be joined. 
 "The Plaintiff might join in one action a claim on a pro- 
 missory note, on a breach of promise of marriage, and a 
 complaint of negligence against an attorney ; in a second, 
 he might join a claim for criminal conversation with tres- 
 pass to his person, his lands or his goods ; in a third, he 
 might sue for the seduction of his daughter, infringing his 
 patent, and for negligently driving over, and for slandering 
 him ; because in all these cases the form of action was the 
 same." The joinder therefore of the most incongruous 
 causes of action might occur under the old procedure with 
 its forms of actions supposed to guard against it. The Act 
 of Simplification, has, as we have seen, abolished forms of 
 action, and permits a Plaintift' to join any causes of action, 
 except Eeplevin and Ejectment, in the same suit. The 
 whole matter of such joinder is left to the sound sense 
 and the self-interest of the Plaintiff. As Plaintiffs did not 
 embarrass themselves under the old system, by joining 
 together in one action, the incongruous causes which could 
 be joined under it, it is concluded that they will not join 
 such under the new, which permits them to join or not to 
 join the causes of action in one suit. And as before the 
 Consolidating Act, 1825, Ch. 167, which compels Plaintiffs 
 to join certain causes of action, which convenience and 
 economy require to be joined. Plaintiffs never did join 
 them, though there was no technical difficulty in the way, 
 it Avill be contrary to experience to suppose, that Plaintiffs 
 will now join incongruous causes of action to the embar- 
 rassment of trials. Whereas, by permitting Plaintiffs to 
 exercise their discretion in the matter, causes of action, 
 which it is proper should be joined, but which technical
 
 PRELIMINARY PROCEDURE. 43 
 
 difficulties, created by tlie forms of action, prevented here- 
 tofore from being joined, may be joined to tlie advancement 
 of a just administration of the law, and to the avoidance of 
 the delay and expense which sometimes occurred under the 
 old procedure from a mis-joinder of causes of action con- 
 gruous in themselves, but technically inconsistent. 
 
 Because of such considerations, the Act of Simplication 
 leaves it optional with the Plaintiff to join any causes of 
 action in the same suit, except those for which Eeplevin 
 and Ejectment are brought. These actions, as I have here- 
 tofore explained, are provided for the specific recovery of 
 property ; the first for personal property ; the second for 
 real property. They act on the specific thing claimed ; and 
 therefore require specific judgments. These exceptions, 
 too, make a natural division of causes of action into those 
 for the recovery of satisfaction in money, whether due on 
 contract or for wrong ; and those for the specific recovery 
 of each of the two kinds of property, which are recognized 
 as distinct under all systems of laws, personal and real. A 
 simple practice is thus founded, on obvious and natural 
 distinctions, between the classes of things claimed in actions 
 at law. 
 
 But if it should happen, that a Plaintiff does join causes 
 of action, which it is embarrassing to try in one suit, the 
 Court has power under the simplified procedure to order 
 them to be tried separately. The practice of the whole 
 subject of joinder of causes of action is regulated by the 
 thirty-third section of the Act of Simplification, in these 
 words ; 
 
 33. " Causes of Action of whatever kind, provided they 
 be by and against the same parties, and in the same rights, 
 may be joined in the same suit ; but this shall not extend 
 to lieplevin or Ejectment ; but the Court shall have power 
 to prevent the trial of different causes of action together, 
 if, in the opinion of the Court, such trial would be inex- 
 pedient; and in such case, the Court may, when the caso
 
 44 PRELIMINARY PROCEDURE. 
 
 J comes on for trial, or before, direct separate cases to be 
 I docketed, and separate trials to be had in tlieir order of 
 \ priority, either immediately or at such time or times as the 
 
 jl Court shall deem most equitable and just." 
 
 The Act of 1825, ch. 167, affects the subject matter of the 
 joinder of causes of action, as I have already intimated. 
 By the first section, " it shall not bo lawful to institute more 
 than one suit on a joint and several bond, penal or single 
 bill, where the persons executing the same are alive, and 
 reside in the same county ; and if more than one suit be 
 instituted on any such bond, penal or single bill, judgment 
 of non pros shall be entered against the plaintiff," &c. 
 
 And by the fifth section, " in all cases where two or more 
 actions of debt or obligations conditioned for the payment 
 of money, or two or more actions on the case arising ex- 
 contractu by and between the same Plaintiff or Plaintiffs, 
 and the same Defendant or Defendants shall hereafter be 
 brought *at one and the same term, the Court in which said 
 actions are pending, shall, upon motion of the Defendant or 
 Defendants, order said actions to be consolidated ; and when 
 the said actions are consolidated, the Court shall order and 
 direct the Clerk to tax the costs of but one action." 
 
 The Act of Simplification does not affect the foregoing 
 sections of the Act of 1825, ch. 167. A Plaintiff must still 
 bring but one suit in the cases specified in the first section. 
 And a Defendant may still have separate actions consoli- 
 dated in the cases mentioned in the fifth section. The prac- 
 tice of consolidating actions, to save costs, is an ancient one 
 long used in England. Our Act of Assembly does but 
 apply an old principle in the cases enumerated. It is a 
 wholesome practice and should be continued.
 
 EULES OF PLEADING. 45 
 
 CHAPTER II. 
 
 PLEADING. 
 
 The Defendant having appeared to the Writ of Sum- 
 mons, the next step in the regular progress of an action, is 
 the delivery, by the respective parties, in alternate order, to 
 the Clerk of the Court, to be filed in the case, the state- 
 ments in ^yriting of their respective grounds of complaint 
 and defence, Avhich are called the Pleadings. 
 
 It is necessary, in order that the Student may understand 
 the simplified Pleading, that he should have exhibited 
 before him the Common Law system of Pleading, as it 
 stood before it was simplified. And as nothing can be so 
 well understood, when considered merely in itself, as when 
 in contrast with its opposite, I will consider the Common 
 Law Pleading in contrast with the Civil Law Pleading; 
 as by the contrast, the peculiar character and merit of the 
 Common Law Pleading can be better exhibited and ex- 
 pounded. For the Common Law of England and the Civil 
 Law of Ancient Imperial Rome, as far as their administra- 
 tive principles and forms of procedure are concerned, are 
 the opposites of each other. 
 
 The purpose of judicial proceedings is to ascertain and 
 to decide upon disputes between parties. In order to do 
 this, it is indispensable that the point or points in contro- 
 versy be evolved and distinctly presented for decision. 
 The Common Law and the Civil Law have different modes 
 for accomplishing this purpose. The rules of Common Law 
 Pleading are designed to develop and present the precise 
 point in dispute upon the face of the written pleadings or 
 record, without requiring any action on the part of the 
 Court for the purpose. The parties are required to plead 
 alternately, until their allegations terminate in a single
 
 46 RULES OF PLEADING. 
 
 material issue, as it is called, either of law or fact asserted 
 on one side and denied on the other, the decision of which 
 will dispose of the cause and settle the dispute. 
 
 By the Civil Law, the parties are not required to plead, in 
 such a way, as to evolve upon the record by the allegations 
 themselves, the point or points in dispute : but are per- 
 mitted to set forth all the facts, which constitute the cause 
 of action or the defence, at large ; the questions of law not 
 being separated from the questions of fact, as they are in 
 the Common Law Pleadings: but the whole case is pre- 
 sented in gross to the Court for its determination. Under 
 this system, the Court has the labor of reviewing the com- 
 plex allegations of both parties, and methodising them and 
 evolving the real points on which the controversy turns. 
 
 When the Court of Chancery in England begun to take 
 judicial cognizance of disputes between parties, it adopted 
 the Civil Law mode of procedure. This Court assumed to 
 eschew the strict and technical Eules of the Common Law, 
 and to proceed upon the broad equities of the cause ; and 
 therefore naturally required the statement of the facts, by 
 both parties, at large. As the mode of trial by jury did 
 not pertain to this Court, the inconvenience of mingling 
 questions of law and fact was not felt ; as they were both 
 decided by the Court, and therefore needed not to be 
 separated on the record, as in Courts of Law, where they 
 are decided by different tribunals. And besides, the Chan- 
 cellor could take time for the examination of the questions 
 both of law and fact involved in the allegations. There is 
 therefore nothing in the organization of the Court of Chan- 
 cery which forbids the use of the Civil Law mode of 
 pleading. 
 
 But this mode of Pleading is not applicable to Common 
 Law Courts. In these Courts, questions of law are decided 
 by the Court, while questions of fact are decided by the 
 jury. It is therefore, at least, convenient that these ques- 
 tions, which are decided by different tribunals, should be 
 separated on the record before the case is presented for trial.
 
 RULES OF PLEADING. 47 
 
 The real points, about wliicli tlie parties differ, cannot be so 
 easily evolved from the complicated mass of facts, in the 
 hurry of a trial, as they can be, by Pleadings carefully 
 framed before-hand, by learned lawyers, in accordance with 
 Eules and Forms which require all issues to be certain and 
 single, and to be framed on the record itself by an affirma- 
 tive and a negative statement of the parties. And it is 
 sufficiently manifest, that it will facilitate the due adminis- 
 tration of justice, to have the record of every case dis- 
 encumbered of all extraneous matter, and of every thing 
 irrelevant and immaterial, and nothing but the naked point 
 in dispute, whether of law or of fact presented distinctly to 
 the Court and the jury ; as is done by special or Common 
 Law Pleading. And when the decision is made, no matter 
 how loosely the opinion of the Court may be expressed, or 
 how many irrelevant dicta it may enounce, the pleadings in 
 the case give definiteness to the point or points decided, 
 and excluding all others, preserve them forever as a pre- 
 cedent for the guidance of future judges. 
 
 As, in actions at law, questions of fact as well as questions 
 of law are necessarily involved ;' and as questions of fact are, 
 for the most part, determined by the oral testimony of wit- 
 nesses deposing in open Court during the trial : it becomes 
 a matter of paramount importance, that the pleadings should 
 be so framed, as to render the relevancy and irrelevancy of 
 testimony obvious, and consequently its admissibility or 
 inadmissibility easily determined ; as such determination 
 must be made in the hurry and bustle of the trial. In this 
 prime requisite, the Common Law Pleading is greatly su- 
 perior to the Civil Law Pleading; as it separates questions 
 of fact from those of law, and presents the precise question 
 to be determined, thereby indicating the evidence required 
 to prove it, as also the rebutting evidence. Whereas, when 
 detailed statements by the Plaintiff" and Defendant arc jicr- 
 mitted, as under the Civil Law Pleading, the exact point in 
 dispute will often be left so obscure, that the evidence must 
 be latitudinous and vague, and many topics intnxluccd in
 
 48 RULES OF PLEADING. 
 
 the testimony whicli have nothing to do with the real 
 questions in dispute. 
 
 There is no part of the practice of the law more important 
 than that which relates to the admission and rejection of 
 evidence. For there can be no security for rights, however 
 clearly they may be defined in the system of jurisprudence, 
 if in judicial proceedings improper evidence is admitted 
 and proper evidence rejected. And it can only be under a 
 system of pleading where single issues are formed, that 
 there can exist a distinct and definite law of evidence by 
 which the admissibility and inadmissibility of evidence is 
 to be determined. This is exemplified by the difference be- 
 tween the law of evidence under the Common and the Civil 
 Law. Under the Civil Law it is vague and uncertain ; 
 while under the Common Law it is precise and plain. 
 Lord Campbell, the present Chief Justice of England, 
 though a great admirer of the Civil Law, when speaking 
 of the principles of the Common Law which regulate the 
 admission and rejection of evidence, is constrained to say : 
 "These place the English law, for once, above the Civil law 
 itself, which notwithstanding its general exquisite good 
 sense, is here arbitrary and capricious." Lord Bacon too, 
 even in his day, noted the superiority of the Common Law 
 in regard to evidence : " For trials (says Bacon) no law ever 
 took a stricter course that evidence should not be perplexed, 
 nor juries inveigled, than the Common Law of England ; 
 or, on the other side, never law took a stricter or more 
 precise course with juries, that they should give a direct 
 verdict." It is thus seen that a definite law of evidence is 
 an off-shoot from the system of Special or Common Law 
 Pleading. 
 
 The Student has, now, it is hoped, discerned the peculiar 
 and distinguishing character of the Common Law Pleading 
 which gives certainty to trials at law : by making the ques- 
 tions to be decided precise; the admission and rejection of 
 evidence definite, and easily determined ; and retaining on 
 the record, after the trial, precision in every step from the
 
 RULES OF PLEADING. 49 
 
 Summons to tlie Judgment, So that it can be known what 
 was in dispute, what was proved, and what was adjudged. 
 
 I ^ril\ look still further into the Common Law Pleading, 
 with a Adew to exhibit the cardinal defect which the Sim- 
 plification was intended to remedy, so that the Student, by 
 knowing what was the great evil it was intended to avoid, 
 as well as, what is the special object it was intended to 
 accomplish, may the more readily understand the simplified 
 pleading. 
 
 The system of Common Law Pleading is a natural sys- 
 tem. Considered with reference to its leading principle, it 
 will be found to be the natural logical process which the 
 mind is necessitated, by the very laws of thought, to pursue 
 in the analysis and evolution of any question whatever. 
 The plaintiff states his cause of action. The Defendant is 
 then placed in the ordinary logical dilemma of either deny- 
 ing or confessing and avoiding the Plaintiff's case. And 
 the Plaintiff" is then in the same dilemma. And so alter- 
 nately, through every stage of Pleading. Kow, this is the 
 ordinary logical operation which the mind is necessitated 
 to pursue in every subject of investigation. 
 
 But in order to regulate this logical process of alternate 
 statements by the Plaintiff and Defendant, so as to secure 
 the practical results of proper litigation, it has been found 
 necessary to have fixed Eules and Forms. These Eules 
 and Forms are all designed, with reference to the great end 
 of bringing the parties to specific issues of an affirmative on 
 one side and a negative on the other, which can be easily 
 comprehended by the Court or the jury who are to decide 
 them. These Eules and Forms make up the whole sj^stem 
 of Pleading ; and' it is these Eules and Forms simplified 
 together with some substitutions and additions, that con- 
 stitute the simplified Pleadings ; as will be seen when we 
 come to consider them. 
 
 The Eules of Pleading are the regulative principles which 
 the experience of Courts has found the most efficient and 
 convenient, for conducting the logical process, and for 
 
 4
 
 of) RULES OF PLEADING. 
 
 IVaming tlie modes of stating a cause and the defences in 
 the business of disputes at law. These Eules, as we shall 
 jiresently see, divide themselves into two classes: those 
 which relate to Substance, and those which relate to Form, 
 
 The Forms of Pleading are the authoritative modes in 
 which the allegations of alternate pleadings are stated. It 
 is these Forms that give to the system of Pleading its prac- 
 tical efficiency. Without fixed Forms, the application of 
 the Eules of Pleading would be exceedingly precarious. 
 Indeed, well-contrived Forms are the consummate excel- 
 lence in every department of legal practice. As Convey- 
 ancing is nothing without Forms, so is Pleading nothing 
 without them. Forms are the only contrivance to secure 
 precision, certainty and fiicility. 
 
 The Rules and Forms of Pleading are eminently aux- 
 iliary to the mind of the lawyer in the analysis which is 
 required in the investigation and preparation of a cause for 
 trial, as well as, for stating the results of that analysis in 
 the alternate allegations on the record. A case never ap- 
 pears so definite to the practitioner as when he is puting it 
 into the Forms of Pleading. Then it reveals itself And 
 the help of Rules and Forms enables the Court, in the 
 hurry and bustle of a trial to see through the case, to sift 
 and assort the materials of which it is constituted better 
 than any other possible device. 
 
 But, in constructing the system of Pleading there were 
 times, when the love of mere art took the place of practical 
 considerations. Pleading came to be pursued for its own 
 sake ; and the nice devices of the system, considered merely 
 as an abstract art, became all in all to the enamored pleader, 
 without any thought of its being an instrument of adminis- 
 tering justice. In this way elaborate refinements were 
 engrafted on the system, that encumbered it and embar- 
 rassed its practical efficiency. Rules were established for 
 framing these mere refinements, as well as Rules for fram- 
 ing the substantial parts of the Pleadings. In this way 
 two sets of Rules arose ; Rules which relate to Form, and
 
 RULES OF PLEADING. 51 
 
 Eules wMch. relate to Substance. Tlie Rules whicli relate 
 to Form were more numerous than those which relate to 
 Substance. And it was the just reproach of the system, 
 that it had a strong tendency to decide causes upon points 
 of mere Form. This was a great evil. If it be possible, a 
 suitor should never be turned out of Court for mere defect 
 in Form, when there is a substantial cause of action set 
 forth in his Pleading. It was the great purpose of the 
 Simplification to correct this evil in the old Pleadings of 
 deciding cases upon mere matters of form, or of delaying 
 their ultimate decision, by raising questions of mere form. 
 A great many Eules, which relate to Form, have been 
 eliminated from the system by the Simplification, thereby 
 diminishing the difficulty of acquiring a knowledge of it, 
 as well as rendering the system more effective as a mean of 
 judicial investigation. 
 
 Form holds so important a place in the old Common 
 Law Pleading, that it is necessary we should have a precise 
 idea of its meaning, in order to understand fully the difler- 
 ence between the Rules which relate to Substance and those 
 which relate to Form. 
 
 The broadest distinction of Form is that of its contrast 
 with Substance. And such it is in its abstract sense. But 
 we are not dealing with abstractions. We are within the 
 sphere of practical realities. And in this sphere, there is, 
 as a general fact, no such thing as Form without Substance, 
 or Substance without Form. But the Common Law Plead- 
 ing does contain a Form which has no substance, i. e. a Form 
 which is wholly independent of the merits of a cause of action or 
 of a defence. In the language of Pleading, substance means 
 merits; and therefore there can be, in Pleading, a Form 
 without Substance, i. e., without merits. The Form which 
 does not relate to merits is called Technical Form ; and all 
 the statements in Pleading of this character, are said to be 
 purely formal, i. e., independent of the merits of the cause. 
 
 By referring to the Statutes, which have from the earliest 
 times been passed in England to remedy the evil of ad-
 
 52 RULES OF PLEADING. 
 
 lierence to mere technical Form, it will be found, tliat the 
 distinction is, as I have stated it, between Form and Merits- 
 These Statutes make the distinction between defects in the 
 " very right of the cause and the matter in law appearing 
 on the Pleadings," and " formal defects, imperfections, omis- 
 sions, defaults in Form, and lack of Form." Tlic Form 
 which does not embody the merits of the cause might, under 
 the old system of Pleading, be disregarded; and except upon 
 its being objected to by a special demurrer, the Pleading 
 would be good, and such foi'mal defect be of no account. 
 
 But there is what may be called Form of Substance, which 
 necessarily results from the differences between different 
 causes of action, and the differences between different de- 
 fences. Different cavises of action, and different defences 
 must, of course, be stated in different words. And as different 
 facts constitute different causes of action or defences, so do the 
 different words, in which they are expressed, constitute dif- 
 ferent forms of statement. And as one certain combination 
 and order of particular words must express the cause of action 
 or defence more accurately than any other, this combination 
 and order of words are the best form in which the cause 
 of action or defence can be expressed. And such a form 
 should be a precedent for all similar cases. For certainly, 
 it is more convenient to use such forms, than to let each 
 pleader state his case in his own less perfect way. Forms 
 of Suhstaiice are therefore retained in the Simplified Plead- 
 ing to answer the important ends which such forms sub- 
 serve. For though useless Forms have been abolished, it 
 were a reproach to any enlightened law-reform, to suppose 
 that it retained or prescribed no Forms at all. 
 
 I have thus shown, that the system of Common Law 
 Pleading, which has been simplified, is a natural system 
 composed of rules and forms wliich have been found by 
 experience, best adapted for regulating the respective state- 
 ments of the litigating parties, and ascertaining the real 
 points for decision : but that many of the rules had nothing 
 to do with the merits of the cause, but created and upheld
 
 RULES OF PLEADING. 53 
 
 artificial distinctions and forms wliicli embarrassed Pleading 
 as a practical mean of litigation; and that the great end, 
 intended to be accomplished by the Simplification, was to 
 disencumber the system of these rules and artificial forms. 
 
 With these retrospective and prospective considerations, 
 it is hoped that the Student is prepared to enter upon the 
 study of the simplified Pleading, with more intelligence 
 than if he had been brought abruptly upon a system, that 
 has relations to another system which is necessarily con- 
 stantly referred to, without knowing what those relations 
 are or what the peculiarities of that system were. 
 
 THE SIMPLIFIED PLEADING. 
 
 I will now enter upon the consideration of the second 
 chapter of the Act of Simplification, which begins at the 
 thirty-fourth section of the Act. 
 
 The second chapter of the Act of Simplification embraces : 
 the Fundamental Eules regulative of the alternate statements 
 by Plaintiff and Defendant ; and the Kules for framing the 
 machinery, which constitutes the system of Pleading that 
 peculiar contrivance, by which, a special issue, either of 
 law or of fact, is always formed and presented, for deter- 
 mination, to one of the tribunals of which a Common Law 
 judicial institution is composed — the Court or Jury. The 
 reader has already anticipated, that this peculiar feature of 
 Common Law Pleading, from the importance which I have 
 ascribed to it, would be embraced in the Simplified System. 
 Accordingly, it is laid down, as the Fundamental Rule of 
 tlie Simplified System, in the thirty-fourth section of the 
 Act, in these words : 
 
 " FUNDAMENTAL RULE." 
 
 34. "The Pleadings sliall be so conducted, as to evolve 
 upon tlie record by the efl'ect of the allegations themselves,
 
 54 RULES OF PLEADING. 
 
 the questions of law and of fact disputed between the par- 
 ties, and present them as the subject-matter agreed upon for 
 decision." 
 
 The Court has, therefore, at the very head of the Chapter 
 on Pleading, continually before its eyes, the Fundamental 
 Eule of the whole system to guide its judgment in mode- 
 rating and controlling the contending statements of claim 
 and of defence, through the whole series of allegations. 
 And the Bar, too, in framing the alternate Pleadings, are 
 ever kept in mind that they must conform to tlie require- 
 ments of this paramount rule of the whole series of Plead- 
 ings, in their alternate order. 
 
 The Act of Simplification next propounds the General 
 Eule, by which the foregoing Fundamental Rule is made 
 effective in practice. This Rule is embraced in the thirty- 
 fifth section, which is as follows : 
 
 "general rule." 
 35. " The Plaintiff shall first state his cause of action in 
 a Declaration. After the Declaration, the parties shall, at 
 each stage, demur, or plead by way of traverse, or by way 
 of confession and avoidance. And in case a party does 
 neither, but confesses the right of the adverse party or says 
 nothing, the Court shall give judgment for the adverse 
 party." 
 
 This General Rule connects the foregoing Fundamental 
 Rule, with all the subsequent Rules embraced in the Act of 
 Simplification, and through the machinery of a Declaration, 
 a Demurrer, a Traverse and a Confession and Avoidance, 
 makes all these Rules auxiliary to the great purpose of 
 forming an issue in law or fact for decision. This Rule 
 requires the Plaintiff to state his cause of action in a Decla- 
 ration, and requires the Defendant to object to the Declara- 
 tion, by one or other of three m'odes of defence allowed by 
 the Rule. And Avhich ever mode of defence, the Defendant
 
 RULES OF PLEADING. 00 
 
 uses, will lead to tlie formation of a distinct issue, accord- 
 ing to the requirements of the Fundamental Eule. The 
 Demurrer will lead to an issue in law ; the Traverse will 
 lead to an issue in fact ; and so will the Confession and 
 Avoidance. 
 
 Thus, it is seen, that whatever course is taken in Plead- 
 ing, the parties will be under the guidance of the Funda- 
 mental Eule requiring the formation of a specific issue. 
 This, thej are compelled to form, or else by the General 
 Eule, or thirty-fifth section, judgment shall be given against 
 the party declining or neglecting to do so. 
 
 Having thus shown how the principle of forming an 
 issue controls the use of the machinery of Pleading, I will 
 now proceed to consider the Eules descriptive of the ma- 
 chinery of Pleading. This machinery consists of the Decla- 
 ration, the Demurrer, the Traverse, and the Confession and 
 Avoidance. 
 
 It must be noted, that the Eules, which we are about to 
 consider, are those descriptive of the machinery of Pleading ; 
 and not the Eules for framing the machinery. These Eules 
 will be considered afterwards, as they stand, afterwards, in 
 the Act of Simplification. 
 
 In the order of law practice, the Eules descriptive of the 
 
 Declaration would come first under consideration : but the 
 
 Act of Simplification, for the advantages of a more lucid 
 
 order, has not placed them first ; and I shall consider them 
 
 ^ in the order in which they stand in the Act. 
 
 Following the order of the Act of Simplification, I will 
 first consider the Eules descriptive of the Demurrer. 
 
 OF DEMUEEEE. 
 
 It is proper, as a little reflection will show, to consider 
 the Demurrer before any other part of the machinery of the 
 Simplified Pleading ; because it was the Demurrer, by 
 which, all tlie objections, for defects of mere form, were
 
 56 RULES OF TLEADING. 
 
 made under the old system of Pleading. Therefore, in 
 defining the scope of the Demurrer under the new system, 
 we are, at once, led to see the characteristic difference 
 between the old system and tlie new; which is that no 
 objection, for mere formal defects, can be made under the 
 new. The Demurrer, therefore, under the new system is 
 stripped of the function of making formal objections to a 
 Pleading. Under the new system its function is confined 
 to making objections to defects of substance. If a good 
 cause of action be set forth in the Declaration, or a good 
 defence in the Plea, or a good reply in the Eeplication, and 
 so of every other Pleading, no matter how informal the 
 Pleading may be, it is not liable to Demurrer. The differ- 
 ence in the scope of the Demurrer under the old and the 
 new sj'stem, represents accurately the difference between 
 the two systems. All the different forms of action, and the 
 innumerable technicalities to which they gave rise through- 
 out the whole course of the Pleadings down to the judgment 
 inclusive, together with the other mere technical forms of 
 the old system, are abolished, as we have already seen, and 
 will more fully see, and consequently do not now exist to 
 be objected to by Demurrer. Neither does the violation of 
 any Eule, which relates merely to form, that is prescribed 
 by the simplified system afford ground for Demurrer. The 
 Court under the Act of Simplification has such ample 
 power of amendment, as we shall see, as to be able to com- 
 pel the parties to plead in such a way, as to conform to that 
 fo7-m of substance, which I have expounded in the preliminary 
 remarks of this chapter, and which is exemplified in the 
 simplified Forms given in the Act of Simplification, which 
 will be considered in the next chapter of this book. The 
 practical advantages, in thus getting rid of the delays, and 
 perplexities heretofore attendant upon demurrers for defects 
 in form will be manifest. 
 
 But while the Act of Simplification has abolished De- 
 murrer for defects of form, it has made the Demurrer, for 
 substance, special. Under the old system, a general De-
 
 RULES OF PLEADING. 57 
 
 murrer, wticli specified no particular defect, but merely 
 stated generally that tlie Pleading demurred to was insuffi- 
 cient in law, was all that was required to reach defects in 
 substance in a Pleading. The Simplified Pleading has 
 changed this, and makes the party demurring, state in what 
 particular, the Pleading is defective in substance. It may, 
 however, sometimes happen, that the general statement of a 
 General Demurrer may be as specific as the case will admit 
 of. In order not to be embarrassed by the occurrence of 
 such a case, the Simplified Pleading provides that the party 
 demurring shall first state that the Pleading is bad in sub- 
 stance, and then state some question of law involving the 
 23oint which he intends to argue on the Demurrer. This 
 mode, for which a Form is given in the Act, will suit all 
 cases and obviate every practical difficulty as to precision 
 in the statement of the cause of Demurrer. The very rea- 
 sons, which books on Pleading give for the use of a general 
 Demurrer, show that it ought never to have been tolerated, 
 and that the Act of Simplrfication is wise in excluding it. 
 " Where a General Demurrer (says Stephen, p. 160,) 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 objec- 
 tion, it is attended with the inconvenience of enabling him 
 to prepare to maintain his Pleading in argument, or of lead- 
 ing him to apply the earlier to amend." Surely, no such 
 ambuscades, as a general Demurrer is here described to be, 
 ought to be allowed in proceedings devised for the adminis- 
 tration of justice. 
 
 The doctrines which we have been considering, and the 
 Rules enforcing them, arc embodied in the thirty-sixth, 
 thirty-seventh and fortieth sections of the Act of Simplifi- 
 cation. The sections are as follows : 
 
 36. " Either party may object by Demurrer to the Plead- 
 ing of the opposite party, on the ground that such pleading 
 does not set forth sufficient ground of action, defence, or
 
 58 'RULES OF PLEADING. 
 
 reply, as the case may be. But no pleading sliall be deemed 
 insufficient for any defect "which could heretofore only be 
 objected to by special demurrer, nor for the violation of any 
 rule hereinafter prescribed which relates only to form, unless 
 specially provided for." 
 
 87. "Every Demurrer shall particularly express the 
 causes of the same, not in general terms, but in a specific 
 statement, of some point of law showing in what respect the 
 pleading is insufficient in substance. And the form of a 
 Demurrer shall be as follows, or to the like effect : 
 
 "The Defendant {or Plaintiff) by his Attorney {or in 
 Person) says that the Declaration {or Plea, d:c.) is bad in 
 substance ;" 
 
 and some substantial matter of law intended to be argued 
 showing the defect in the pleading shall then be stated; 
 and if any Demurrer without such statement, or with a frivo- 
 lous statement, shall be filed, it may be set aside by the 
 Court, and judgment may be entered up for want of a plea. 
 
 40. " When issue is joined on Demurrer, at any stage of 
 the cause, the Court shall consider the allegations through 
 the whole series of pleadings, and give judgment according 
 as the very right of the cause and matter in law shall appear 
 unto it, without regarding any imperfection, omission, defec- 
 tion, or lack of form, for the party who on the whole appears 
 to be entitled to it. And no judgment shall be arrested, 
 stayed or reversed for any such imperfection, omission, 
 defect or lack of form." 
 
 It is observable, that, by the last clause of the thirty- 
 seventh section, if a Demurrer, not conforming to the Kule 
 prescribed in the section, shall be filed, the Court may set 
 it aside, and give judgment for want of a plea. 
 
 And by the fortieth section, it is seen, that the Court,
 
 RULES OF PLEADING.' 59 
 
 upon issue joined on Demarrer, at any stage of tlie cause, 
 shall look through the whole case and give judgment accord- 
 ing to the real merits in law of the case, without any regard 
 to defects of form : and this means, not only what would be 
 defects of form under the old system, but what are defects 
 of form under the new; as appears by these concluding 
 words of the thirty-sixth section : " nor for the violation of 
 any rule hereinafter prescribed which relates to form, unless 
 specially provided for ;" and there is no special provision 
 for any formal defect. 
 
 The thirty-eighth section of the Act of Simplification 
 prescribes the form of a Joinder in Demurrer ; and is in 
 these words : 
 
 38. " The Form of a Joinder in Demurrer shall be as 
 follows, or to the like effect : 
 
 " The Plaintiff (or Defendant) says that the Declaration 
 (or Plea, cfcc.) is good in substance." 
 
 "When the one party has filed in the cause a Demurrer in 
 the Form prescribed by the thirty-seventh section, and the 
 opposite party has filed a *Joinder in Demurrer in the form 
 prescribed by this section, the case is ready for trial on the 
 law ; because the facts stated in the pleading demurred to, 
 are admitted ; as is seen by the thirty-ninth section of the 
 Act, which is as follows : 
 
 39. " Every Demurrer shall be taken as a confession of 
 all the facts pleaded without regard to form." 
 
 Under the old Common law pleading, a Demurrer con- 
 fessed all matters formally pleaded, but not such as were 
 informally pleaded. But as the Statutes of 27 Elizabeth, 
 ch.o ; and 4 and 5 Anne, ch. 16, made it necessary to object 
 
 * N. B. It is not necessary to file a Joinder iu Demurior at all; as 
 an issue in law is formed without it.
 
 60 RULES OF PLEADING. 
 
 specially to defects of mere form, and no longer allowed 
 them to be raised upon a general Demurrer : by force of 
 these Statutes, a general Demurrer would confess all matters 
 pleaded informalhj as well as those pleaded formally. (1st 
 Saund. E. 337, note 3.) So by this section of the simplified 
 pleading, all matters are confessed by a demurrer without 
 regard to form. 
 
 By the forty-first section of the Act of Simplification, 
 there shall not be a Demurrer upon a Demurrer ; because 
 there is already an issue in law to be decided. This was 
 the old law. 
 
 41. " There shall not be a Demurrer upon a Demurrer." 
 
 OF THE EFFECT OF PLEADING OVER WITHOUT 
 DEMURRER. 
 
 It may sometimes happen, that a party may overlook a 
 substantial defect in his adversary's pleading, and instead of 
 demurring, plead to it. It thus becomes necessary to pro- 
 vide for such a contingency. The Act of Simplification 
 contains two rules on the subject, which answer all the 
 exigencies of such cases. The first is, that where the De- 
 claration is defective in substance, and the defendant pleads 
 over, and his plea supplies, by express statement, the defect 
 in the declaration, such defect shall be thereby cured. Thus, 
 in an action of trespass for taking a hook, where the plain- 
 tiff omitted to allege in the declaration, as he should have 
 done, that it was Ins hook, or even that it was in his posses- 
 sion, and the Defendant pleaded a matter in confession and 
 avoidance justifying his taking the hook out the Plaintiff'' s 
 hands, the Court, on motion in arrest of judgment, held that 
 as the plea itself showed that the hook was in the possession 
 of the Plaintiff, the objection, which would otherwise have 
 been fatal, was cured. (Steph. Plead, p. 165.) In this case 
 it appeared clearly to the Court, from the pleadings, that
 
 RULES OF PLEADING. 61 
 
 the Plaintiff was entitled to recover. But tlie rule should 
 be confined, as it is in the Act of Simplification, to an 
 express statement in the plea of the fact omitted, and not 
 extended to an implied statement or admission of the fact. 
 And it is confined, too, in its scope, to a mere omission of 
 some fact or facts ; otherwise the rule would have trenched 
 upon another rule, which will be considered hereafter, that 
 a Plaintiff must recover upon the ground stated in his declara- 
 tion, and not upon another disclosed by the Defendayifs plea. 
 The Eule under consideration is contained in the forty- 
 second section of the Act of Simplification, which is as 
 follows : 
 
 42. "If a declaration be defective in substance, and the 
 Defendant pleads over ; and the plea supplies, by express 
 statement of fact, but not otherwise, the defect in the de- 
 laration, such defect shall be thereby cured." 
 
 The other Rule on this point is that when the issue 
 joined necessarily required, on the trial, proof of the facts 
 omitted or imperfectly stated, the defect shall be cured by 
 verdict. It is futile to object, after trial, to an omission in 
 the statement of a cause of action, when the cause of action 
 has been found by a jury upon proof of it. This rule, how- 
 ever, should be applied, by the Court, with great caution. 
 It lies so nearly upon the boundary between expediency 
 and inexpediency, as to require circumspection in a})plying 
 it to cases as they arise. The rule is embodied in the forty- 
 thii-d section of the Act of Simplification, in these words: 
 
 43. "Where there is any imperfection, or omission Avhat- 
 ever in any pleading, which would be a fatal objection on 
 Demurrer, yet if the issue joined be such as necessarily 
 required on the trial proof of the facts so imperfectly stated 
 or omitted, such imperfection or omission shall be cured by 
 the verdict."
 
 62 • RULES OF PLEADING. 
 
 ■ OF TRAVERSE. 
 
 The Traverse or Denial is the piece of tlie macliinery 
 of Pleading which next comes under consideration. This 
 is by far the most important plea in the whole system ; 
 because of its more frequent use than any other. Great 
 difficulty, too, has been experienced in all eras of the law 
 in developing its principles, and forming Rules for its prac- 
 ' tical guidance. The Act of Simplification has made great 
 changes in this part of Pleading. In the old system, there 
 were a great many forms of Traverse called General Issues, 
 and the Replication de injuria^ (Steph. Plead. 172-5 ;) and 
 also a Special Traverse with an absque hoc. (Steph. Plead, p. 
 188, 198.) By the Act of Simplification, all those forms of 
 Traverse are abolished, and two forms only are substituted 
 in their stead. 
 
 The reasons for this change are these. The General 
 Issues, instead of being alike in their scope, as their com- 
 mon name would import, were extremely diverse. Under 
 some of them, almost any legal and equitable defence might 
 be given in evidence. They merely denied h'ahility, and 
 any thing which tended to show no liability could be offered 
 in evidence. This virtually abrogated the fundamental dis- 
 tinction between pleas by way of Traverse, and pleas by 
 way of Confession and Avoidance ; which the system of 
 Pleading was studious to preserve in theory, because the 
 exigencies of fair trial require it, and yet in these General 
 Issues it practically disregarded it. In the most compre- 
 hensive General Issues, while the p?ea was in denial, the 
 evidence was often in confession and avoidance. Thus the 
 proof did not conform to the issue ; as it always ought to 
 do, to insure fair trials without surprise to either party. 
 And besides, as the General Issues differed in comprehen- 
 siveness, a great many questions as to the admissibility of 
 evidence, thereby arose in practice. Under some General 
 Issues, any defence, as I have already said, could be given
 
 RULES OF PLEADING. 63 
 
 in evidence. But otliers were somewliat narrower, and 
 others narrower still ; until the form, of the issue, from 
 being nothing, because it admitted every thing to be proved, 
 became every thing, because it admitted scarcely any thing 
 to be proved. These anomalies in the doctrine of General 
 Issues led to uncertainties in practice, and difficulties as to 
 the admissibility of evidence. And besides, little might be 
 kno^m to either party, under these Greneral Issues, of what 
 would turn out to be the real question between them. The 
 Plaintiff might be entirely in the dark as to the matters to 
 be set up in answer to his claim ; and thus be exposed to 
 defeat from facts, which, if he had known them, would have 
 induced him to abandon his case, and thereby save the 
 trouble and expense of a trial. 
 
 I will now explain the nature of the Special Traverse 
 with an absque hoc. The reasons for abolishing it will 
 appear, when we come to consider the form of plea which 
 has been substituted for it, in the new system. 
 
 The great object of Pleading, as I have endeavored to 
 show, is to bring the parties, as soon as practicable, to a 
 definite issue or question which involves the whole matter 
 in dispute. In order to do this, the Courts have built up 
 the system of Pleading in such a form, as to require the 
 parties so to state their cases, that the allegations of the 
 one party shall be answered, by the other, directly; and not 
 leave the sense to be collected by inference or argument. 
 The Courts, therefore, established it as a fundamental rule, 
 that every affirmative shall be answered by an express and 
 direct denial. On this ground is based the rule against, 
 what is called, argumentativeness^ which means that no plea 
 shall be argumentative, or a mere indirect denial. The rule 
 excludes all indirect denials. 
 
 But the purposes of justice sometimes require that matter, 
 which is merely an indirect denial of the adverse allegations, 
 shall be pleaded specially. It is sometimes impoi'tant, that 
 the special matter, of the defence relied on, should be stated 
 in the plea, in order that the Plaintiff may have the privi-
 
 64 RULES OF TLEADING. 
 
 lege of demurring to it, if he thinks it insufficient in law as 
 a defence ; without the delay, expense and troul)le of raising 
 the same question of law, by a prayer to the Court, upon 
 the same facts when brought out by the Defendant in evi- 
 dence upon a trial before a jury. It was to accomplish this 
 purpose, loithout violating the rule against argumentativeness^ 
 that this peculiar species of plea was invented by the subtle 
 ingenuity of the ancient pleaders. The plea consists of two 
 substantial parts : an Inducement^ and an Absque hoc^ as 
 they are respectively called. The Inducement contains the 
 *■ special matter, which is an indirect denial of the Plaintiff's 
 p case. The Absque hoc contains a direct denial of the 
 Plaintiff's case; and is added to the indirect denial con- 
 tained in the Inducement, to conform the plea to the rule 
 against argumentativeness, which requires that every plead- 
 ing by way of Traverse shall be a direct denial of the adverse 
 allegation. As this special matter was pleaded in the In- 
 ducement merely to enable the Plaintiff to deriw.r to it, he 
 could not plead to it; and if he did not choose to demur, he 
 could only reply to the Absque hoc, by merely repeating 
 the allegations of the Declaration, which the barbarous for- 
 mula of the Absque hoc denied directly. This was the most 
 artificial and subtle plea of the ancient system of Pleading ; 
 and though it was seldom used, still it was essential to a 
 complete system of Pleading in facilitating the settlement 
 of cases that sometimes occurred in the administration of 
 of the law.* 
 
 That peculiar form of Traverse called the Eeplication de 
 injuria is also abolished by the Act of Simplification. This 
 species of Traverse was confined to actions of Trespass and 
 Trespass on the case; and even in these actions could only 
 be used in the Eeplication. This Replication alleged that 
 the Defendant did the act complained of, of his oiun ivrong^ 
 and loithout the cause alleged. In the two actions mentioned, 
 this was the proper form of replication whenever the plea 
 in bar was traversed by the Plaintiff. But yet, if the plea 
 
 *See the Form of a Special Traverse, Stepli. Plead, p. 190.
 
 RULES OF PLEADING. 65 
 
 in bar consisted of matter of either title or interest; or autho- 
 rity of law; or authority in fact derived from the Plaintiff; 
 or matter of record: tins replication could not be used. (Step. 
 Plead, pp. 186, 188, 276, 383.) It is sufficiently manifest that 
 this form of traverse makes distinctions between defences 
 where none exist in the nature of things ; and is an extreme 
 anomaly even in the old system of Pleading. 
 
 These different forms of Traverse are abolished, and two 
 other forms substituted for them, by the forty-fourth section 
 of the Act of Simplification, in these words : 
 
 4-4. " There shall be only two forms of Traverse, viz. : a 
 Direct Traverse, and an Indirect Traverse. The General 
 Issues, and the Replication de injuria^ and the ^Formal 
 Traverse with an Absque hoc shall not be used," 
 
 I will now proceed to consider what has been substituted, 
 for the Greneral Issues and the Replication de injuria., in the 
 Simplified Pleading. And then I shall consider the sub- 
 stitute for the Formal or Special Traverse. 
 
 OF DIRECT TRAVERSE. 
 
 The Act of Simplification has substituted for the General 
 Issues, a Direct Traverse consisting of a direct denial of the 
 facts alleged by the opposite party. By this form of denial, 
 the evidence is conformed to the issue ; and the anomalies, 
 relative to the admissibility of evidence under the General 
 Issues, are removed from practice. No evidence can be 
 adduced by the Defendant but such as tends to contradict, 
 that is, negative, the allegations of the Plaintiff. Matter of 
 excuse or justification, or of discharge or release, cannot be 
 >^ adduced under the Direct Traverse. The Rule, regulating 
 the matter, is contained in the forty-fifth section of the Act 
 of Simplification, in these words : 
 
 * The Special Traverse is also called Formal. 
 5
 
 66 RULES OF PLEADING. 
 
 45. " A Direct Traverse sliall consist of a direct denial of 
 the facts alleged by the opposite party ; and it shall always 
 be expressed in the negative, unless opposed to a precedent 
 negative, then it may be expressed in the affirmative." 
 
 In order to bring the Replication de injuria^ or rather the 
 instances or cases in which it Avas the proper form of tra- 
 verse under the old system, within the principles of the 
 Direct traverse, the Act of Simplification makes it impera- 
 tive on a Plaintiff, in all actions for injury to person or 
 character or property, when matter of excuse or justification, 
 is pleaded by the Defendant, to deny in his Replication, the 
 excuse or justification pleaded, in the words of the excuse 
 or justification ; as was done even under the old system, as 
 I have shown, when the Defendant's plea consisted either 
 of matter of title or interest^ or authority of law^ or authority 
 of fact derived from the plaintiff, or matter of record. There 
 is no reason in the nature of the special cases of Trespass 
 and Trespass on the case, for a peculiar form of traverse, in 
 replying to a Defendant's plea of excuse ov justification. -The 
 Act of Simplification therefore conforms these cases to the 
 General System, by a Rule in the forty-sixth section, in 
 these words : 
 
 46. " Where, to any action for injury to person or character, 
 or property, any matter of excuse or justification is pleaded, 
 the Plaintiff shall, in the Replication, deny it in the words 
 of the excuse or justification or to the like effect, or may 
 plead some special defence." 
 
 OF INDIRECT TRAVERSE. 
 
 I will next consider what has been substituted in the 
 simplified pleading for the Special Traverse with an absque 
 hoc. In order to understand the substitute, it will be well, 
 to refer to what has been said of the purpose for which the
 
 RULES OF PLEADING. 67 
 
 Special Traverse was devised. It was to enable tHe Defend- 
 ant to plead the special matter of his defence, in order that 
 the plaintiff might know what it is, and if he thought it 
 insuf&cient in law as a defence, demur to it, and draw out 
 the question of law from the issue of fact, and, perhaps, have 
 the case decided, without the trouble and expense of a jury 
 trial. But under the old system of pleading, special de- 
 fences, which amount to an indirect denial, could not be 
 pleaded except in the barbarous form of a Special Traverse 
 with an absque hoc. As it will sometimes, though not often, 
 happen, that special matter amounting to an indirect denial 
 should be pleaded, the Act of Simplification has devised a 
 mode of pleading an indirect denial without any of the tech- 
 nicalities which encumbered it under the old system. The 
 new mode of pleading the indirect denial, of course, violates 
 the rule against argumentativeness^ as any such form of plea 
 necessarily must. But the su]3posed evil of such violation 
 is prevented, by the rules which regulate the reply to such 
 a pleading under the new system. The purpose of the 
 rule against argumentativeness was to compel the parties to 
 come to issue. It supposes that if indirect denials were 
 allowed, the parties might plead on alternately, and never 
 come to issue. But this difficulty is prevented, under the 
 new pleading, by compelling the Plaintiff, when an indirect 
 denial is pleaded to his declaration, if he does not demur to 
 it, to deny its allegations directly ; or else plead some matter 
 of excuse or justification or discharge ; and in either case, the 
 Defendant shall join issue. By either of which Replications 
 and Joinder by the Defendant, an issue will be formed. 
 And thus the purpose of the Special Traverse is accom- 
 plished, without any of its embarrassments. The Direct 
 Traverse, however, will be generally used, and therefore is 
 the more important plea. The Rules regulating the Indirect 
 Traverse, are embraced in the forty-seventh and forty-eighth, 
 sections of the Act of Simplification, in these words : 
 
 47. "All defences, except a direct denial of the facts 
 alleged, shall bo pleaded specially."
 
 68 RULES OF PLEADING. 
 
 48. ""Wherever a Defendant sliall plead special facts 
 ■which deny indirectly the facts alleged by the Plaintiff", 
 if the Plaintiff do not demur, he shall in the Keplication, 
 either deny directly the special facts so pleaded, or plead 
 some matter by way of confession and avoidance, and in 
 either case the defendant shall join issue." 
 
 It must be obvious to the reader, from the provisions 
 already passed in review, that the primary object of the 
 Act of Simplification is to produce special issues regulated 
 by the principles of common logic, and unfettered by arti- 
 ficial technicalities ; so that the admissibility of evidence, 
 to prove or disprove the affirmative of the issue, can be 
 judged of by our natural reason ; the evidence being con- 
 formed to the ordinary meaning of the language of which 
 the issue is formed. If the affirmative, for example, be a 
 promise, and the Defendant denies the promise, all the 
 evidence will be confined to the simple issue, of promise or 
 no promise. "With a view to accomplish this purpose, all 
 the General Issues (which were certain pleas of Traverse 
 appropriated, by ancient usage, as the different forms of 
 general denial, to the different forms of action,) are abol- 
 ished ; as we have seen. But this does not reach the evil 
 of the class of cases to which the general issue of Non- 
 assumpsit applies. Because the plea must still be, virtually 
 the same ; as a promise would be still alleged in the Decla- 
 ration, and must be denied. The action of Assumpsit, as it 
 was called, was the proper remedy for the breach of all 
 simple contracts, whether express or implied. In cases of 
 implied contracts the promise was a mere fiction; and yet 
 all the Pleadings were framed as if there was a promise in 
 fact. There had been established, as a principle of law, that 
 a promise must be implied wherever there is an existing 
 debt or liability. This was done by the Courts in order to 
 bring, a large class of cases, within the scope of the action 
 of Assumpsit, which could before only be reached by an 
 action of Debt. The Declaration stated the special facts of
 
 RULES OF PLEADING. 69 
 
 tlie case showing tlie indebtedness or liability; and tben 
 said, tliat being so indebted or liable, in consideration 
 thereof, the Defendant made a certain proviise to the Plaintiff. 
 The General Issue then was. That the Defendant did not 
 undertake and promise in manner, &c, which is called the 
 plea of N'on-assumpsit. According to the language of the 
 plea, it merely denies the fact of the promise set forth in the 
 Declaration. But as the law implies a promise, wherever 
 there is an existing debt or liability — and the Declaratioli 
 set forth facts showing such debt or liability, the Plaintift 
 maintained his action not by proving a promise, as there 
 was in fact none, but by proving the debt or liability on 
 which the implied promise was raised by the law ; and the 
 Defendant was of course, under his plea of no j^romise, allowed 
 to prove any circumstance which tended to disprove the 
 debt or liability; such as performance or a release, &c. 
 This being the necessary scope of the General Issue in im- 
 plied promises, the Courts extended it to express promises. 
 Therefore, in any case of Assumpsit, the Defendant could 
 under the General Issue show not only that no promise was 
 made, or that the promise was an invalid one ; but could 
 show any matter, with few exceptions, which tended to deny 
 the debt or liability. Until then, the principle of law, That 
 an existing debt or liability imjylies a promise^ be changed, the 
 scope of a plea of no promise must be the same as the 
 General Issue, Non-assumpsit. This principle of law is so 
 pervasive of our books on contracts, that it cannot be 
 changed. The Act of Simplification has, therefore, reme- 
 died the evil, by changing the mode of Pleading in cases of 
 implied contracts or promises. By the fifty-third section, 
 which will be reviewed hereafter, the statement of 23^'omises 
 in Indebitatus counts, as counts or declarations on implied 
 promises are called, shall be omitted. And by the hundred 
 and thirty-seventh section of the Act, the Forms of Declara- 
 tion, from one to twelve inclusive, have been prescribed for 
 the cases where under the old system, were declared on im- 
 plied promises. And by the same section of the Act, a
 
 TO RULES OF TLE A DING. 
 
 Plea has been prescribed, applicable to these Declarations, 
 in these words : " That he never was indebted as alleged." 
 By these forms of declaration and this form of plea, a special 
 issne is formed according to the real facts of the cases, where 
 jpromises were, under the old system, implied and made the 
 basis of the Pleadings. The Pleadings confine the parties 
 to the indebtedness or liability, as was the case before the 
 doctrine of implied promises was invented by a perverse 
 ingenuity. 
 
 In cases of express promises, the promise must be stated 
 in the Declaration ; and the Act of Simplification has pre- 
 scribed two forms, 13 and 14, as examples; and has pre- 
 scribed a Plea in such cases where the promise is denied, 
 " That he did not promise as alleged." Under this Plea, 
 though it is equivalent in language to the General Issue of 
 Non-assumpsit, the parties are confined to promise or no pro- 
 mise. Because by the fiftieth section of the Act of Simplifi- 
 cation, which will be presently considered, all matter of 
 justification or excuse, or of discharge or release, shall be 
 pleaded specially, and consequently can never be given in 
 evidence under any Plea of Traverse. But as, notwith- 
 standing the fiftieth section, any matter, such as duress and 
 other like matter which shows that there never was a valid 
 promise, though there was a promise in fact, might be given 
 in evidence under the plea prescribed for express promises, 
 it was necessary to institute a Rule requiring them to be 
 pleaded specially. The Act of Simplification has, there- 
 fore, by the forty-ninth section, required such matters to be 
 pleaded specially. The section is as follows : 
 
 49. " Any defence, showing that a parol contract or deed 
 sued on is void or voidable, or the fact that the alleged 
 deed was delivered to a third person as an escrow, shall be 
 pleaded specially." 
 
 This section of the Act of Simplification also narrows 
 the issues in cases of implied promises, to which under the
 
 RrLESOFPLEADIXG. • 71 
 
 Simplified Pleaclincr, the Plea, "That lie never was indebted 
 as alleged," is prescribed as a General Traverse. Because 
 the logical import of the Plea is such, that any matter which 
 tends to show, that there never was a valid liability — such 
 as fraud, infancy, coverture, lunacy and the like — could be 
 given in evidence under it, in cases where such matters 
 would be a defence. And implied promises, though no 
 longer declared on as such, are not abolished, and are em- 
 braced in the section under the designation, " Parol Con- 
 tract." (1st Chit. Plead, p. 87.) Therefore all matters which 
 show that the liability or obligation is void or voidable, 
 must be pleaded to any one of the twelve declarations pre- 
 scribed for such cases; and cannot be given in evidence 
 under the general Plea prescribed for them. 
 
 This section is seen to embrace cases of deeds as well as 
 parol contracts, sued on, and requires any defence showing 
 the deed to be void or voidable, or that it was delivered as 
 an escrow, to be pleaded specially. Under the old sj^stem 
 of pleading, Debt was the proper form of action on a sealed 
 instrument or deed. And if the Defendant was a party to 
 the deed and wished to traverse it he was compelled to plead 
 non est factum; as this was the General Issue established by 
 ancient usage to such action. Under this Plea, the De- 
 fendant might contend, either that he never executed the 
 deed, or that its execution was absolutel;^ void by reason of 
 lunacy, infancy, coverture or other like disability, or that 
 he delivered it as an escrow. Now, in the Act of Simplifi- 
 cation, as we shall see hereafter, there is a Plea, " That the 
 alleged deed is not his deed." This Plea must have the 
 same scope as the General Issue non est factum^ unless it be 
 limited by some express rule. Because, under it, any 
 matter showing that the deed was void or was delivered as 
 an escrow could be given in evidence, just as under the 
 General Issue for which it has been substituted, and to 
 which it is equivalent in language. 
 
 In order, therefore, to draw out the defences of duress, 
 infancy, lunacy, coverture, delivered as an escrow, and
 
 72 RULES OF TLEADING. 
 
 other like matters, from the General Traverse formed by 
 the Simplified Plea which we have been considering, into 
 the Pleadings, it was necessary to have the Special Kule 
 contained in the forty -ninth section of the Act of Simpli- 
 fication. 
 
 Uniformity, too, is gained by the Eule contained in this 
 section. Under the plea of Non-assumpsit^ matters which 
 show the contract to be void or voidable could be given in 
 evidence ; but under the plea of non est factum^ matters 
 which show the deed to be void could be given in evidence, 
 while matters which show it to be voidable only could not, 
 but must bo pleaded. (Steph. Plead, p. 177, note X.) 
 
 OF CONFESSION AND AVOIDANCE. 
 
 The next subject to be considered in the order of the Act 
 of Simplification, is the pleas of justification and excuse, 
 and of discharge and release, called pleas by way of Con- 
 fession and Avoidance. The pleas of justification and excuse 
 confess the act charged : but avoid it by showing that the 
 Plaintiff never had any right of action, because the act 
 charged was lawful ; as that the battery charged was in self- 
 defence. The pleas of discharge and release admit that the 
 Plaintiff once had a right of action, but avoid it, by show- 
 ing that it is discharged or released by some matter sub- 
 sequent. (Steph. Plead, pp. 219-20.) As a great leading 
 purpose of the simplified pleadings is to make the evidence 
 conform to the form of the issue in every case, matters of 
 Confession and Avoidance cannot be given in evidence 
 under the issue formed by a traverse in any instance what- 
 ever. For if the Defendant be charged with an express 
 promise, and only such promises can now be declared on as 
 promises, and his case be, that after making the promise it 
 was released or performed^ this plainly confesses and avoids the 
 declaration ; and to allow the Defendant, to give this in evi- 
 dence, under the denial of a 'promise, as the old pleadings did, 
 is to lose sight of the distinction between the two great classes
 
 RULES OF PLEADING. 73 
 
 . of i^leas in bar, those by way of Traverse and those by way 
 of Confession and Avoidance; a distinction that cannot be 
 broken down without great damage to the just administration 
 of the law. Such defences therefore should be pleaded. 
 Accordingly the Act of Simplification requires such defences 
 to be pleaded specially, as they ought always to have been 
 from the necessities of fair trial, when the form of the issue 
 indicates that the facts are denied and not justified. And as 
 justification or excuse is a conclusion of law which results 
 from a given state of facts, the facts should be set forth in 
 the pleadings, that the Court may see whether they are a 
 good defence, and the opposite party have the opportunity of 
 demurring to them. The rule regulating pleas by way of 
 Confession and Avoidance is embraced in the fiftieth sec- 
 tion of the Act of Simplification, in these words : 
 
 50. " Any ground of defence, that admits the facts alleged 
 in the Declaration or in any other pleading, but avoids 
 their legal effect, by some matter of justification, or excuse, 
 or of discharge or release, shall be specially pleaded." 
 
 In the law regulating pleas in Confession and Avoidance, 
 there was a fiction called " Express Color." By this fiction, 
 a plea which in reality is not a plea in Confession and Avoid- 
 ance, was clothed in the garb of one by a fictitious confes- 
 sion which the opposite party was not allowed to gainsay 
 though he knew it to be false. Every pleading by way of 
 Confession and Avoidance must give color as it is called in 
 technical language, that is, must admit an apparent rigid in 
 the opjpjosite party ^ and rely upon some new matter by which 
 that apparent right is defeated. For example, a Defendant 
 is charged with a breach of covenant. The Defendant ad- 
 mits in his plea, that he executed the covenant and com- 
 mitted the breach, and would, therefore, prima facie, be 
 chargable with the damage: but alleges that the Plaintiff 
 afterwards executed to him a release. The Plaintifi', in his 
 Replication admits that such release was executed as alleged
 
 74 RULES OF PLEADING. 
 
 in the pica ; and the Defendant would tliereby be apparently 
 discliarged : but alleges that the release was obtained by 
 duress. In this case, the plea gives color to the Declaration ; 
 and the Replication gives color to the plea. The plea must 
 from its very nature give color, that is, admit an apparent 
 right ; else it is not a plea by way of Confession and Avoid- 
 ance. This inherent quality in the very nature and struc- 
 ture of a Pleading by way of Confession and Avoidance is 
 called implied color in the old pleading, to distinguish it 
 from another kind which was in some instances inserted in 
 a pleading, to give it the appearance or form of such a 
 pleading, called '■'express color." This express color is "a 
 feigned matter j^leaded by the Defendant in an action of 
 trespass, from which the Plaintiff seems to have a good 
 cause of action, whereas he has in truth only an appearance 
 or color of case." (Steph. Plead, p. 225.) As this fictitious 
 matter was inserted only to give the plea a formal suffi- 
 ciency, the Plaintiff was not allowed to contest the fictitious 
 matter ; and as though pleading was a masquerade, the plea 
 was introduced in disguise where, according to the facts of 
 the case and the fundamental rules of the old system, it 
 could not be in its naked truth. This form of plea, like 
 the Special Traverse, was invented for the purpose of bring- 
 ing the legal questions involved in the facts of the defence 
 in the personal action of trespass in which alone it was, at 
 last, used, before the Court, and withdrawiug them from the 
 jury. It was confined to pleas and did not extend to other 
 pleadings. (Steph. Plead, pp. 229-30.) The Act of Simpli- 
 fication by the fifty -first section has abolished Express Color 
 in these words : 
 
 51. " The fiction of Express Color shall not be allowable." 
 
 We have now passed in review, the Rules defining the 
 functions and forms of the different pieces of the machinery 
 of the simplified pleading. The machinery of pleading con- 
 sists of the Declaration, the Demurrer, the Pleas of Direct
 
 RULES OF PLEADING. 75 
 
 and Indirect Traverse, and the Plea by way of Confession 
 and Avoidance. It lias been shown that this machinery 
 is much more simple and natural than the old. All the 
 Genera] Issues, with the perplexities in practice produced 
 by their differences in comprehensiveness, have been abol- 
 ished ; and so has the Special Traverse with its fine-woven 
 cobwebs of doctrine ; and also that perplexing fiction of 
 Express Color. The system of doctrine, too, has been ren- 
 dered simple by abolishing anomalies and incongruities, and 
 making uniform the admissibility of evidence, so far as it 
 is dependent on the forms of issues. But much remains 
 to be shown of what has been done towards simplifying 
 pleadings. This will disclose itself more and more, as we 
 proceed, until we reach the Simplified Forms, when a com- 
 parison of them with the old Forms will make the simplifi- 
 cation manifest to direct inspection. 
 
 EXILES FOE FEAMING THE PLEADINGS. 
 
 I will now consider the Eules for framing the respective 
 pleadings which constitute the simplified machinery for 
 administering the law. 
 
 The Demurrer is so simple in its form — its office being 
 merely to raise some question of law — that it is unnecessary 
 to say any thing more in regard to it, than has been already 
 said. The rules and the form, by and in which, it must 
 always be constructed have been explained. The pleader, 
 who is to use it, is, of course, supposed to be familiar with 
 the question of law which he purposes to raise by it. If so, 
 he can have no difficulty in stating the question in the pre- 
 scribed form. 
 
 The other pleadings, as they embody statements of facts, 
 are more difiicult of construction, than the Demurrer ; and 
 consequently, they require a large number of rules relative 
 to the various combinations of facts which constitute causes 
 of action and grounds of defence. Because the rules must
 
 76 RULES OF PLEADING. 
 
 be moulded according to the nature of the objects wliicli 
 they regulate ; and in proportion to the diversity of these 
 objects must the rules be numerous and multiform ; and the 
 number of the rules, concurring to the same end, only dis- 
 plays the more clearly the unity of the principle which per- 
 vades the whole system. But still, the rules are not as 
 numerous as, might, at first thought, be supposed. For the 
 logical conditions of all the possible combinations which 
 causes of action and grounds of defence can assume are com- 
 paratively few, and can be stated in a few rules. 
 
 The grand primary purpose, which all the machinery of 
 special pleading is designed to accomplish, as I have shown, 
 is to bring the parties to an issue which involves the merits 
 of the cause. All the rules, therefore, for the construction 
 of the different pleadings, are subordinate to this primary 
 purpose. They direct the pleader, in whatever he does, in 
 such a way as to accomplish this primary purpose of the 
 whole scheme of pleading. This must be kept constantly 
 in mind by the student while considering the rules I am 
 about to explain. 
 
 There are certain rules that apply to all pleadings^ from the 
 Declaration to the end of the series. These, to prevent repeti- 
 tion, as well as for the greater light of systematic views, 
 shall be considered first ; then, those which relate exclusively 
 to the Declaration ; next, those which appAy to the pileadings 
 subsequent to the Declaration. Under these three heads, all 
 the fundamental rules will be embraced. Other rules, which 
 are merely auxiliary, will afterwards be discussed under 
 their proper heads. And finally, the simplified Forms will 
 be considered under the light which the whole discussion 
 will have shed over them. This is the order in which the 
 respective subjects stand in the Simplifying Act.
 
 RULES OF PLEADING. 77 
 
 OF PLEADINGS IN GENEEAL. 
 
 We now enter upon the consideration of the Eules for 
 framing pleadings. The first thing to be considered is the 
 material of which pleadings are, under the simplified system, 
 to be constructed, A great many matters, which were 
 required to be introduced into the structure of the different 
 pleadings under the old system, are not allowed at all under 
 the new. The fundamental rule, upon the basis of which 
 all the other rules repose under the simplified pleading, 
 regulating the material of which pleadings shall be con- 
 structed, is embraced in the fifty-second section of the Act 
 of Simplification, in these words : 
 
 52. " "Whatever facts are necessary to constitute the 
 ground of Action, Defence, or Reply, as the case may be, 
 shall be stated in the Pleading, and nothing more ; and facts 
 only shall be stated, and not arguments, or inferences, or 
 matter of law, or of evidence, or of which the Court takes 
 notice ex officio^ 
 
 It is seen, that this rule is both affirmative, showing what 
 material shall be used, and negative, showing what shall not 
 be used. It, of course, implies that the student is already 
 acquainted with causes of action and grounds of defence ; 
 and that he can distinguish facts from arguments and infer- 
 ences, and from matters of law, and matters of evidence, and 
 from matters of which the Court takes notice, ex officio. It 
 is not the province of Pleading to teach these distinctions ; 
 for, if so. Pleading would embrace the whole system of 
 jurisprudence. It is obvious, that it would be improper to 
 state matters of law ; because the law is involved in the facts, 
 and the Court sees it in them ex officio. And that it would 
 be improper to state mere matter of evidence, is equqjly 
 obvious ; for, besides being useless, it would extend the 
 pleadings to the greatest prolixity.
 
 78 RULES OF PLEADING. 
 
 The latter part of the above rule implies, tliat tliere are 
 matters, besides those of law, of which the court takes notice 
 ex officio. These are : matters antecedently mentioned in the 
 record or pleadings ; the course of the almanac ; the divi- 
 sion of the State into Counties and Judicial Circuits ; the 
 ordinary measurement of time ; legal weights and measures ; 
 and other matters which are enumerated, though some of 
 them do not pertain to Maryland practice, in 1 Chit. Plead, 
 pp. 196-205. 
 
 This section is but a reiteration of the rule of the old 
 system of pleading, without any new limitation. All the 
 exclusions of this rule were embraced in it under the old 
 pleading. But there were many matters allowed by this 
 rule, and required by others, to be stated in pleadings, which 
 the Act of Simplification excludes from the material for 
 framing pleadings. Some of these are embraced in the fifty- 
 third section of the Act, in these words : 
 
 53. " All statements which need not be proved, such as 
 the statement of Time, Quantity, Quality, and Value, where 
 these are immaterial ; the statement of losing and finding, 
 and Bailment, in actions for goods or their value; the state- 
 ment of acts of Trespass having been committed with force 
 and arms, and against the peace, dignity and government of 
 the State of Maryland ; the statement of taking in Actions 
 of Eeplevin ; the statement of Promises which need not be 
 proved, or promises in Indebitatus counts, and mutual 
 promises to perform agreements, and all statements of a like 
 kind, shall be omitted." 
 
 Many of the statements embraced in this section were 
 fictions which grew out of forms of actions, and were 
 required to be stated in order to sustain the form of action. 
 For example, the statement of losing andfindiruj^ and in some 
 ca^es, of bailment, were absolutely necessary in Actions of 
 Detinue and Trover, to recover goods or their value ; and 
 yet the gist of the action of Detinue was the wrongful
 
 RULES OF PLEADING. 79 
 
 detention, and of the action of Trover, the wrongful con- 
 version to the defendant's use of the plaintiff's property, 
 without any dependence whatever upon the mode of getting 
 possession of them, as these fictitious statements would 
 imply. So the statement of taking in Actions of Eeplevin, 
 and of promises in Indebitatus counts, from what I have 
 heretofore said on these respective subjects at their proper 
 places, is manifestly fictitious; and therefore irrelevant in 
 the simplified pleadings, which aim at the exclusion of mere 
 technical form. This rule, though stated under the general 
 rules, applies almost exclusively to the Declaration. 
 
 The two rules or sections, which I have considered, are 
 the only ones, under this head, which relate to the material 
 of which pleadings shall be constructed. The others, which 
 I will now proceed to consider, relate to the framing of 
 pleadings so as to make them certain in their meaning and 
 precise and simple in their form. 
 
 The first of these is embraced in the fifty-fourth section, 
 in these words : 
 
 54, "An allegation shall not have two intendments: but 
 it shall state one point distinctly, so that the adverse party 
 may know on what to join issue. And if an allegation shall 
 have two intendments, it shall, upon motion, be considered 
 by the Court as a nullity," 
 
 This rule points at what is called a negative i^regnant, and 
 such like ambiguous statements, A negative pregnant is such 
 a form of negative expression as may imply, or carry within 
 it, an affirmative. And so an argumentative pleading is 
 pregnant with, or may imply, a negative. For examples, 
 see Step. Plea, pp. 381-4. 1st Chit. Plead, p. 4G1. 
 
 By the old system, a pleading inconsistent with, or repug- 
 nant to, itself, was, on that account, bad and demurrable. 
 But if the second allegation, which created the repugnancy, 
 was superfluous, and could be rejected without materially 
 altering tlie sense, it did not vitiate the pleading. (^Stepli.
 
 80 RULES OF PLEADING. 
 
 Plead, pp. 378-9.) In order to rcmed}^ the evil of this rule, 
 the Act of Simplification has, in the fifty-fifth section, estab- 
 lished the following rule : 
 
 55. " Where there are material allegations in a pleading, 
 that are repugnant to each other, the first in order shall be 
 considered the proper one, and all others inconsistent with 
 it shall be rejected, even though the pleading be thereby 
 left without an allegation of some material fact." 
 
 Under the old system, a declaration for taking and carry- 
 ing away certain timber for the completion of a house then 
 lately built, was bad for repugnancy ; for the timber could 
 not be for the building a house already built. (1st Salk. 
 213.) Under the above section, the words "then lately 
 built" will be rejected, and the declaration will be good. 
 This change in the rule was but following the general doc- 
 trine of construction of deeds. If two clauses in a deed be 
 repugnant, the first shall be received, and the last rejected. 
 If one make a lease for ten years at will, this is a good lease 
 for ten years certain, and the latter words are void for repug- 
 nancy. (2d Term Eep. p. 562.) The Act of Simplification, 
 in the above section, rejects all the repugnant allegations, 
 even though the first allegation, because of the omission of 
 some material fact, should be thereby rendered void. The 
 rule could not, practically, be less thorough-going; for if 
 the repugnant allegations be rejected at all, they must be 
 rejected entirely, and not in part. 
 
 As superfluous matter will, sometimes, get into Plead- 
 ings, through the ignorance of the pleader, it is important 
 that it should be so disposed of, as to produce as little 
 mischief as possible. The Act of Simplification has pro- 
 vided a Rule on the subject in the fifty-sixth section, in 
 these words : 
 
 56. "No superfluous allegation, whether it be consistent 
 or inconsistent with the necessary and material allegations, 
 nor any impertinent allegation shall vitiate a Pleading."
 
 RULES OF PLEADING. 81 
 
 It may sometimes happen, that a pleading, by design or 
 through ignorance, may be so framed as to embarrass the 
 fair trial of a cause. It is therefore important, that the 
 Court should have ample power over such a pleading. 
 From the earliest times the Courts have exercised a control 
 over their practice. They not only establish a practice for 
 themselves, but they set aside rules of practice. The Court 
 at one time altered the rule for computing interest. (2d 
 Black. E., p. 696, Rice vs. Shute.) And when flagrant 
 faults occur in the framing of a pleading, the Courts have, 
 at all times, visited them with censure, and ordered them to 
 be corrected at the cost of the offending party. And the 
 mode of calling the attention of the Court to such evils 
 in practice and pleadings as these, has been, by motion, and 
 not by demurrer. Therefore, the Simplifying Act has, in 
 all cases of formal defects in the pleadings, or other mal- 
 practice, made the motion the proper mode of calling the 
 attention of the Court to the matter. One of the most 
 important Rules relative to the class of evils of which we 
 are speaking, is contained in the fifty-seventh section of the 
 Act of Simplification, in these words : 
 
 57. "If any pleading be so framed as to prejudice, em- 
 barrass or delay the fair trial of the action, the opposite 
 party may move the Court to strike out or amend such 
 pleading, and the Court shall make such order respecting 
 the same, and also respecting the costs, as the Court shall 
 see fit." 
 
 This Rule gives the Court the most ample power, whether 
 it possessed the power before or not, over all tricky plead- 
 ings, and all cases of mere colorable or pretended amend- 
 ments. 
 
 By the old law, if a party relies on a deed, to wliich he is 
 a party, and which is in his possession, he must make prof ert 
 of it, that is, aver that he brings tlie deed into Court; and 
 
 6
 
 82 KULES OF PLEADING. 
 
 •while the deed is thus in Court, if the adverse part}^ wishes 
 it, he might crave oyer of it; that is, hear it read. The 
 Maryland practice of profert was to leave the deed, or a 
 copy, at the Clerk's office, where the pleading, making pro- 
 fert, was filed. If then, the party, craving oyer, wished to 
 use any part of the deed in his plea, he must set out the 
 whole deed, no matter how long ; and the deed then became 
 a part of the pleading of the party making the profert. 
 No such practice obtained in regard to writings not under 
 seal. There is now, no matter what there may have been 
 in earlier ages, no reason why the two kinds of writings 
 should be placed upon a different footing. The practice of 
 profert and oyer encumbered the pleadings with unneces- 
 sary matter, and gave them a clumsy form ; though it was 
 not usual to actually insert the deed in the pleading until 
 a record was made out. The Act of Simplification has 
 abolished profert and oyer, and substituted another practice, 
 by the fifty-eighth and fifty-ninth sections, in these words : 
 
 58. "It shall not be necessary to make profert of any 
 deed or other document mentioned or relied on in pleading ; 
 and if profert shall be made, it shall not entitle the opposite 
 party to crave oyer of, or set out upon oyer such deed, or 
 other document." 
 
 59. "A party pleading, in answer to any pleading in 
 which any document is mentioned or referred to, shall be 
 at liberty to set out the whole, or such part thereof as may 
 be material, and the matter so set out, shall be deemed and 
 taken to be part of the pleading in which it is set out." 
 
 The first of the sections abolishes the old practice ; and 
 the second establishes a new one. The new practice ex- 
 tends to all documents, whether under seal or not, and is 
 so simple that the Rule sufficiently explains itself. 
 
 The practice of profert and oyer extended to letters testa- 
 mentary and of administration, &c. The forms of making
 
 EULES OF TLEADIXG. 83 
 
 profert and craving oyer, may be seen in Stephen or Chitty 
 on Pleading, or in Harris' Entries. 
 
 Wherever a man does any thing by force of a vrarrant or 
 authority, as a bailift" acting under a precept ; or does an act 
 where an instrument of writing is required ; such precept, 
 and such instrument of writing, were required, by the old 
 law, to be mentioned in a pleading in regard to such acts. 
 The sixtieth section of the Simplifying Act has introduced 
 a different Rule in such cases, as follows : 
 
 60. "Where in a pleading, any thing is alleged generally 
 to have been done, it shall be considered as meaning legally 
 done, and, by the proper instrument of writing where one 
 is required, without stating how or in what manner it was 
 done." 
 
 In an action on a contract where the Defendant's per- 
 formance is to depend on some act to be done or forborne 
 by the Plaintiff, the Plaintiff must aver the performance or 
 fulfilment of such condition precedent, in order to show 
 that he has a cause of action. And where a Defendant has 
 to do some act before the condition precedent is incumbent 
 on the Plaintiff, in order to take advantage, as a defence for 
 his own non-performance of the condition subsequent, of 
 the Plaintiff's non-performance of the condition precedent, 
 he must allege performance by himself of such act. In 
 these cases and the like, the Plaintiff and the Defendant 
 were required by the old law to state " a certain and exact 
 performance." The sixty-first section of the Simplifying Act 
 has given the following Rule for such cases: 
 
 61. " It shall be lawful for the Plaintiff or Defendant in 
 any action, to aver performance of conditions precedent 
 generally, and the opposite party shall not deny such aver- 
 ment generally, but shall specily in liis pleading the con- 
 dition or conditions precedent, the performance of which ho 
 intends to contest."
 
 84 EULES OF TLEADIXG. 
 
 By tliis Rule tlic Plaintiff or Dcfcnclaut may aver that he 
 has performed all things on his part to be performed; and this 
 •will be sufficient to necessitate the opposite party to specify, 
 in his next Pleading, the condition or conditions precedent 
 Avhich he denies the performance of. The doctrine of con- 
 ditional contracts, like the doctrine of contracts generally, 
 IS a part of the law, and does not come within the scope of 
 a treatise on Pleading or Procedure. 
 
 In order to prevent the retardation of the issue, it is 
 manifestly necessary, that both the Plaintiff and Defendant 
 shall be confined to the grounds they at first take in the 
 action. While the parties are respectively confined to the 
 grounds they first take in their Declaration and Plea, the 
 process of pleading must exhaust, after a few alternations, 
 all the facts involved in the cause ; and thereby evolve the 
 question in dispute. But if a new ground be taken in any 
 part of the series, the result is necessarily postponed. And 
 if one departure, as it is called, be allowed, why not more ? 
 The Simplifying Act has therefore preserved the Rule 
 against departure in pleading, as it was called in the old 
 system. It is embraced in the sixty-second section as 
 follows : 
 
 62. " Parties shall be respectively confined to the grounds 
 both of fact and of law which they take in the Declaration 
 and the Plea, and shall not resort to another in any subse- 
 quent pleading." 
 
 A departure obviously cannot take place earlier than the 
 replication ; but it has most frequently occurred in the 
 rejoinder. The Rule implies that there may be a departure 
 either in law or fact. A departure in law, is where a party 
 puts the same facts on a new ground in point of law ; as if 
 he relies on the effect of the Common Law, in his Declara- 
 tion, and on a custom, in his Replication ; or on the effect 
 of the Common Law in his Plea, and a Statute in his
 
 RULES OF PLEADING. 85 
 
 rejoinder. An example of a departure in fact, is where tlie 
 Plaintiffs, as executors, declared on several promises alleged 
 to liave been made to the testator. The Defendant pleaded, 
 that she did not promise within six years before the bring- 
 ing of the action. The Plaintiffs replied, that within six 
 years before the action, letters testamentary were granted 
 to them; whereby the action accrued to them^ within six 
 years. In the Declaration the Plaintiffs lay the promises 
 to the testator ; and in the Pteplication allege the right of 
 action to accrue to themselves as executors. They should 
 have laid the promises to themselves in the Declaration as 
 executors, if they meant to rely upon that ground. (Steph. 
 Plead, pp. 405-11.) 
 
 It is not necessary, in pleading, for a party to state matter 
 which would come more properly from the other side. This 
 principle the Act of Simplification has set forth in the sixty- 
 third section in these words : 
 
 63. "A pleading should not anticipate the answer of the 
 opposite party. It is sufficient that each pleading contain 
 facts which constitute a good prima facie claim or defence 
 or reply, without reference to possible objections not yet 
 urged. 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 
 in the first instance, though it may be such as would other- 
 wise properly form the subject of objection on the other 
 side." 
 
 This rule divides itself into two parts. The first part 
 is exemplified thus: In a declaration of debt on a bond, it 
 Is unnecessary to allege that the Defendant was of full age 
 when he executed it ; for though a person under age can 
 not execute a bond, yet it is for the other party to show 
 this by the plea of infancy, and it need not be denied by 
 anticipation. So, where there was a covenant in a charter-
 
 8G nULES OF PLEADING. 
 
 party, " tliat no claim should be admitted or allowance made 
 foi- short tonnage, unless such short tonnage "vvere found 
 and made to appear on the ship's arrival, on a survey to he 
 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, tliat if 
 such tonnage had not been taken, this was matter of defence, 
 which ought to have been shown b}'- the Defendants ; and 
 refused to arrest the judgment, (1 T. E. 638.) 
 
 The second half of the rule, which is a qualification of 
 the first half, is exemplified by the following case : In an 
 action brought by a commoner against a stranger, for 
 putting his cattle on the common, because he could not enjoy 
 the common in so ample a manner as he ov.ght, 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 alleged in the plea. (2 Mod. 6. See Steph, Plead. 
 pp. 354-7.) 
 
 As the great purpose of simplification was to abolish all 
 useless forms, and to so frame the machinery of pleading as 
 to make substance, or the merits of the case, the sole matter 
 of dispute in litigation, the Act of Simplification, besides 
 provisions which expressly abolish useless forms specifically 
 mentioned, has a general provision, which, out of abundant 
 caution, declares that form shall in no instance control sub- 
 stance. This rule is contained in the sixty-fourth section 
 in these words:
 
 RULES OF PLEADING. 87 
 
 64. "The Form of a Pleading sliall in no case whatever 
 control its substance. Matter, though alleged in the form 
 of inducement, if it be of the substance of the cause, may be 
 pleaded to. And so, in all like instances." 
 
 It is hard to anticipate, by example, the possible applica- 
 tion of this rule ; for the rule itself contains the only ex- 
 ample tha{ I can think of, that of inducement. Inducement 
 is the technical name for introductory or explanatory matter, 
 and. was, in the old pleading, stated in the form of introduc- 
 tory allegation. And the rule, above, means that if matter 
 of substance should be stated, as though it was merely intro- 
 ductory, it shall not thereby lose its substantial import. 
 The rule as embodied in the case of inducement,' was the 
 rule of the old pleading. (Steph. Plead. 258.) 
 
 It was a rule under the old system of pleading, that a 
 "party fnigUt traverse a material allegation of title or estate to the 
 extent to ivhich it was alleged^ though it need not have been 
 alleged to that extent^ and that the title or estate must he proved 
 to the extent alleged. In an action of replevin, for example, 
 the defendant avowed the taking of the cattle, as damage 
 feasant, in the place in which, &c. ; the same being the free- 
 hold of Sir F. L. To this the Plaintiff pleaded, that he loas 
 seised in his demesne, as of fee ^ of B. close, adjoining to the 
 place in which, &c.; that Sir F. L. was bound to repair the 
 fence between B. close, and the place in which, &c.; and 
 that the cattle escaped, through a defect of that fence. The 
 defendant traversed, that the Plaintiff was seised in his de- 
 mesne as offee^ of B. close ; and on demurrer, the Court was 
 of opinion, that it was a good traverse ; for though a less 
 estate than a seisin in fee would have been sufficient to sus- 
 tain the Plaintiff"'s case, yet as the Plaintiff' who should best 
 know what estate he had, had pleaded a seisin in fee, his 
 adversary was entitled to traverse the title so laid. So in an 
 action for trespasses committed in a close of pasture, contain- 
 ing eight acres, in the town of Tolland Eoyal, the Defend-
 
 88 RULES OF PLEADING. 
 
 ant pleaded, tluit W. Earl of Salisbury, was seised in fee, 
 and of right, of an ancient chase of deer, called Cranborn, 
 and that the said chase did extend itself, as well in and 
 through the said eight acres of pasture, as in and thi'ough 
 the said town of Tolland Koyal : and justified the trespasses, 
 as committed in using the said chase. The Plaintiff tra- 
 versed, that the said chase extended itself as well to the eight 
 acres, as to the ichole town; and issue being joined on this 
 plea, it was found for the plaintiif. It was objected, that 
 the issue and verdict were faulty, and ought not to preclude 
 the Defendant; because if the chase extended to the eight 
 acres only it was enough for the Defendant ; and therefore 
 that the fact that it did not extend as well to the whole 
 town as to the eight acres did not conclude against the De- 
 fendant's right in the eight acres which was only in ques- 
 tion. But as the Defendant had put more in his plea than 
 was needed, it was his fault, and must prove it as alleged. 
 In order to obviate the evil of such cases as these, where 
 upon the face of the pleadings and the proofs at the trial, it 
 was manifest that the losing party had a just case, the Sim- 
 plifying Act, in the sixty-lifth section, gives this rule : 
 
 65. " If the Plaintiff allege a greater title or estate than 
 is necessary to sustain his cause of action, and it be tra- 
 versed to the full extent, he shall not be compelled to prove 
 more than is necessary to sustain his action. And if a De- 
 fendant puts into his plea more than is needed for his 
 defence, he shall not be compelled to prove more than is 
 needed for his defence." 
 
 The next rule in the Act of Simplification is contained in 
 the sixty-sixth section, in these words : 
 
 QQ. " AVhen a pleading can be taken two ways, it shall be 
 taken in that which is most against' the party pleading it." 
 
 This is a mere precautionarj^ rule, that will hardly ever
 
 RULES OF PLEADING. 89 
 
 be applicable to a pleading under the simplified system. 
 Its import is so obvious as to need no comment. 
 
 As every pleading ouglit to be authenticated as the act 
 of the party pleading, the Act of Simplification, by the 
 sixty-seventh section, makes it necessary that the party, or 
 his Attorney, shall sign it. This is the best possible mode 
 of authenticating the pleading. Without such signature, 
 therefore, there can be no pleading. Any writing, though 
 purporting to be a pleading, would be a nullity without such 
 signature. The section of the Act is in these words : 
 
 67. " Every pleading shall be in writing, and signed either 
 by the party or his Attorney." 
 
 The sixty-eighth section of the Act of Simplification 
 requires every pleading to have, at the commencement, a 
 superscription of the Court in which it is filed. It may be 
 
 in this form : " In the Circuit Court for County ;" or as 
 
 the case may be. If, however, the title of the Court be 
 omitted, the pleading would not thereby be a nullity. The 
 Court could direct the clerk to superscribe the title of the 
 Court; it being a mere formal defect, and not demurrable. 
 The section is in these words : 
 
 68. " Every Declaration and other Pleading shall be enti- 
 tled of the proper Court." 
 
 As it would have led to prolixity, to have specified in 
 every rule every pleading to which it was intended to apply, 
 and as the omission of any one would have been a defect, 
 the Act of Simplification has obviated the evil, by a rule 
 contained in the sixty-ninth section, in these words : 
 
 60. " Whenever any rub of pleading, contained in this 
 code, shall specify in terms only one or more species, as 
 Declaration, Plea, or any other, yet if in its nature and scope
 
 90 RULES OF PLEADING. 
 
 the rule be applicable to otlier pleadings also, it sliall be 
 taken to apply to all to which it is applicable." 
 
 I have now concluded the examination of the rules wliich 
 apply to all pleadings. I will next consider the rules which 
 apply to the Declaration. 
 
 OF THE DECLARATION. 
 
 The Declaration is the first step in pleading, and the 
 chronological order would have required me to consider it 
 first. But it was found important to postpone its considera- 
 tion until this stage of our exposition ; and to place its spe- 
 cial rules after those which apply to all pleadings, in order 
 to prevent repetition. These considerations determined the 
 same order in the Simplifying Act, which I follow through- 
 out in this treatise. 
 
 The rules which we have just considered bear so fully 
 upon the declaration, that there are but few rules which 
 relate to it exclusively. The statements of causes of action 
 necessarily vary according to the facts of each case. I have 
 already, in considering the fifty-second section of the Act of 
 Simplification, pointed out what is the proper material for 
 framing a declaration, as well as other pleadings. The rules 
 which I am now about to consider can have no application 
 to any pleading but the declaration. 
 
 The pleader is, of course, assumed to be familiar with 
 causes of action, or, in other words, with claims that can be 
 sustained by an action at law. For pleading does not teach 
 the doctrine of rights, or even of remedies ; but only the 
 mode of stating claims or injuries, according to forensic 
 usage, for their consideration and determination by the Court 
 and the jury. The doctrines of rights and injuries are, of 
 course, not affected by the Act of Simplification : but that 
 of remedies is greatly simplified, as I have shown in the 
 first chapter of this treatise. And it has been through the
 
 RULES OF PLEADING. 91 
 
 Simplification of Remedies that the Simplification of Plead- 
 ing has been effected. Under the old system, the statement of a 
 cause of action liad to be varied, not only according to the 
 circumstances of each case, but according to the form of 
 action, whether in Assumpsit, Debt, Covenant, Detinue, Case, 
 Trover, Replevin, or Trespass, which involved the nature and 
 special applicability of all those remedies or forms of actions. 
 But now, remedies are narrowed down to Summons, Reple- 
 vin and Ejectment ; and even in these, substance is every- 
 thing and form nothing ; so that, in pleading now, the cause 
 of action alone is to be considered, in framing the statement 
 of the declaration. 
 
 The first rule relative to the declaration is contained in 
 the seventieth section of the Act of Simplification, in these 
 words : 
 
 70. " A Plaintiff shall recover only in respect of the 
 ground of action stated in his declaration, and not in respect 
 of another disclosed by the Defendant's plea." 
 
 This has always been the law; at all events, ever since 
 pleading became systematic. This rule may perhaps seem 
 to conflict with the forty-second section of the Act of Sim- 
 plification, relative to the effect of pleading over without 
 demurring. But it does not. That section applies merely 
 tp the curing of a defect in the declaration, by the Defend- 
 ant's plea; whereas this applies where the Plaintiff has 
 wholly failed in stating his cause of action, but one is dis- 
 closed by the Defendant's plea, as has sometimes happened 
 in the experience of Courts. The rule, too, may seem to be 
 little more than the repetition of the sixty-second section of 
 the Act of Simplification, as far as that rule bears on the 
 declaration. But it will be remembered, that that section 
 prevents the Plaintiff from shifting his cause of action from 
 one of his own pleadings to anotlicr — from the declaration 
 to the rej)lication — that is, taking a different ground in tho 
 latter from that taken in the first ; whereas, this rule pre-
 
 92 KULES OF PLEADING. 
 
 vents liim from shifting liis ground of action from liis own 
 pleading to that of the Defendant. 
 
 I have all along kept it prominently in view, that the 
 great purpose of the simplified pleadings is to make the 
 parties disclose their respective cases as soon as possible. In 
 furtherance of this purpose, and to make the Plaintiff dis- 
 close the real character of his case at once, so that an issue 
 can be speedily formed upon the merits, the seventy-first 
 section of the Act of Simplification prescribes the following 
 rule : 
 
 71. " AYhenever a Plaintiff claims a right derogator}^ from 
 the general law, or when his claim is founded upon an 
 exception of any kind, he shall set forth such claim or such 
 exception particularly in his declaration." 
 
 Cases, to which this rule points, do not often occur : but 
 when they have occurred, they have been attended with 
 embarrassment, from the Plaintifi:''s stating his case in a 
 general way, instead of specif3dng it as an exception. For 
 example : The Plaintiff brought an action of trespass for 
 fishing in his fishery. The Defendant pleaded that the place 
 is an arm of the sea, in which every subject has a right to fish. 
 
 The Plaintiff in his replication, for the first time, dis- 
 closed his claim as an exclusive prescriptive right. The 
 rule under consideration is designed to compel a Plaintiff, iu 
 such a case, and all like it, to disclose the precise cause of 
 action, as being exceptional, in his declaration, and not de- 
 lay to do so till the replication. 
 
 Where the cause of action, is founded on a contract of 
 any kind whatever, it must consist in a breach of that con- 
 tract. Therefore, in all actions on bonds with conditions, 
 the breach of the condition must be stated in the pleadings. 
 The usual practice, under the old system of pleading, was 
 to declare on the bond as though it were single, that is, 
 without conditions ; and for the Defendant to plead general
 
 RULES OF PLEADING. 93 
 
 performance; and then for the Plaintiff in his replication to 
 assign the breaches of the conditions, or, in other words, to 
 state his real cause of action. By this mode of pleading the 
 declaration was useless, and the replication took its place. 
 In order to prevent this prolonged and vexatious pleading, 
 the seventy-second section of the Simplifying Act establishes 
 the following rule : 
 
 72. " In all actions on bonds with conditions, the Plain- 
 tiff shall in the declaration notice the conditions, and allege 
 the breach or breaches relied on." 
 
 As this rule merely shifts the statement of the breaches 
 from the replication to the declaration, the mode of stating 
 the breaches remains as under the old system, except as far 
 as the form of these statements may be affected by the dif- 
 ferent sections of the Act of Simplification abolishing the 
 formal })arts of declarations in all cases. Therefore, as the 
 statement of breaches is a difficult part of pleading, I pro- 
 pose to state the general docti-ine upon the subject, while, 
 at the same time, I will illustrate the rule under considera- 
 tion. 
 
 No one possible form of statement will suit every breach ; 
 for each breach must depend on the particular stipulation 
 broken, and these are as various as the transactions em- 
 braced in the agreements amongst men. Breaches must 
 therefore be stated according to the special facts of each 
 case which constitute the violation of that special contract. 
 And as there are many different forms of contract, so there 
 must be many different forms of breaches. In order there- 
 fore to explain the different forms of breaches, it becomes 
 necessary to advert to the different forms of contracts. ''I'he 
 forms of contract, of which I now speak, are not those tech- 
 nical forms — of contracts under seal, and contracts not under 
 seal. But the forms of which I now speak constitute the 
 substance of the contracts, making them differ from each 
 other as the different wants and wishes of the contracting
 
 94 RULES OF r LEADING. 
 
 parties dilYer from each other. Sometimes the contract is 
 simply a promise, upon a consideration already enjoyed by 
 the person promising, to pay to the person from whom the 
 consideration passed, a certain sum of money. Or the con- 
 tract may consist of stipulations dependent on each other ; 
 where the obligation to perform the one may depend on the 
 prior performance of the other. Or, the contract may con- 
 sist of mutual stipulations to be performed at the same time. 
 Now, it is manifest, that statements of the breaches of these 
 different contracts must, of necessity, differ in form as well 
 as substance, from each other. In the first example, the 
 breach would be sufficiently stated, by simply avering, that 
 the money promised to he pcdd^ had not been paid.' But in the 
 second example, as the obligation to perform the thing sti- 
 pulated, depends on the prior performance of something on 
 the part of the Plaintiff", he must aver his prior performance 
 and then allege the non-performance hy the Defendant^ to show 
 a breach. And in the third example, the party suing must 
 allege that he ivas ready and ivilling to perform his ^^a?*^, and 
 that the Defendant neglected or refused to perforin liis part. 
 
 The pleader therefore, before assigning the breaches, must 
 understand the nature of the contract, and determine what 
 facts are necessary to constitute a breach of it on the part of 
 the Defendant. The class of contracts which oppose the 
 greatest difficulty are those like the second example given 
 above, called Dependent Covenants. Whether the Cove- 
 nants are dependent or independent, is to be collected from 
 the evident sense and meaning of the parties; and however 
 transposed the covenants may be in the deed, their prece- 
 dency must depend on the order of time in which the intent 
 of the transaction requires their performance. And there 
 are no precise technical words to make a Stipulation a con- 
 dition precedent or subsequent : but in all cases the real im- 
 port of the words must alone be considered in the special 
 case. 
 
 In point of form, an averment of a breach may be in any 
 words amounting to an express allegation. The statement
 
 RULES OF PLEADING. 95 
 
 must be positive, and not by way of recital, or inference. 
 The breacb should be assigned in the words of the contract 
 either negatively or affirmatively as the case may require, 
 or in words that are co-extensive with the import and 
 effect of the contract. And if the contract be in the dis- 
 junctive^ the breach ought to be assigned, that the Defendant 
 did not do either act ; as on a promise to deliver a horse by 
 a particular day, or pay a sum of money. And no inconve- 
 nience can result from laying the breach as extensively as 
 the contract ; for the Plaintiff" can recover, though he only 
 prove part of the breach laid. What the degree of particu- 
 larity must be in each case can be determined by no rule. 
 Less particularity is, however, required where the breach 
 lies more in the Defendant's than the Plaintiff's knowledge. 
 At the Common Law, in an action on a bond with a con- 
 dition for the performance of any thing, the Plaintiff" could 
 assign only one breach of the condition ; because the bond 
 was forfeited by the breach of one covenant as much as of 
 several covenants ; and the assignment of more than one 
 breach would make the declaration bad for duplicity.* The 
 Plaintiff therefore, because of one breach, had judgment to 
 recover the penalty of the bond together with his costs ; and 
 was entitled to take out execution for the whole without any 
 regard to the damage which he had actually sustained by 
 the breach of covenant. The Defendant was therefore con- 
 strained to go into equity to obtain relief against an uncon- 
 scientious demand of the whole penalty in cases where small 
 damages only had accrued. In order therefore to protect 
 Defendants against such unconscientious judgments, the 
 Statute 8 &; 9 W. 3, c. 11, s. 8, enacted that — *' In all actions 
 in any court of record upon any bond, or on any penal sum, 
 for non-performance of any covenants or agreements con- 
 tained in any indenture, deed or writing, the Plaintiff' may 
 assign as many breaches as he shall think fit," &c. This 
 statute gives Plaintiff's relief up to the extent of the damages 
 
 * Duplicity will Ijc coiisidLTcd hereafter.
 
 96 RULES OF PLEADINCx. 
 
 sustained, and protects Defendants against tlie payment of 
 further sums than are in conscience due. The Plaintiff 
 must therefore (the word may in the statute is interpreted 
 must by the Courts,) assign all the breaches of the bond on 
 which he means to rely ; and if the Defendant plead to issue, 
 the jury upon the trial must assess damages for such of the 
 breaches assigned as the Plaintiff shall prove to have been 
 broken. Bonds may be conditioned either for the perform- 
 ance of certain matters set forth in the condition, or of the 
 covenants or other matters contained in an indenture or 
 other instrument, collateral to the bond, and not set forth in 
 the condition. The mode of pleading is the same in both 
 cases ; and the rule under consideration is ai^plicablc to 
 both. 
 
 Injuries that are not breaches of contract constitute 
 another great class of causes of action. They are injuries 
 to the person ; or to character ; or to property. They are 
 called lorongs. 
 
 Injuries to the person are so simple in their nature, and 
 are so easily stated in the declaration, that I shall give no 
 special direction in regard to them: but merely refer the 
 student, to the Forms for such declarations in the third 
 chapter of this treatise. 
 
 The declaration, in cases of injury to character, was so 
 artificial under the old system of pleading, that the Act of 
 Simplification has established the following . rule, in the 
 seventy-third section : 
 
 73. "In all actions of Libel or Slander, the Plaintiff shall 
 be at liberty to aver that the words or matter complained of 
 were used in a defamatory sense, specifying such defamatory 
 sense, without any prefatory averment, to show how such 
 words or matter were used in that sense, and such averment 
 shall be put in issue by the denial of the alleged Libel or 
 Slander ; and when the words, or matter set forth, with or 
 without the alleged meaning, show a cause of action, the 
 Declaration shall be sufficient."
 
 RULES OF PLEADING. 97 
 
 Where the words used are not actionable in themselves 
 but derive their slanderous or libellous meaning from ex- 
 trinsic facts, it was necessary, under the old system of 
 pleading, to state these extrinsic facts in an introductory 
 part of the declaration. The mode of doing this was, first, 
 to state the facts in reference to which the words were spoken 
 or written ; secondly, to show that the words were published 
 of and concerning such facts ; thirdly, to connect the words 
 with such previous facts. This was effected by technical 
 forms, called colloquiums and innuendoes. The section, of the 
 Act under consideration, makes it sufiicient to state in what 
 defamatory sense the words were used ; and, if it be proved 
 to the satisfaction of the jury that the words were used in 
 that particular defamatory sense, the plaintiff shall have 
 verdict, and judgment. The student is referred to the 49 
 page of Stephen on Pleading for an old form of declaration 
 in Libel, which will exemplify to him, when contrasted with 
 the simplified form in our third chapter, the burdensome 
 technicalities of the old form. 
 
 The mode of stating injuries to property will be considered 
 hereafter, under the sections of the Act of Simplification 
 specially applicable to such injuries. 
 
 OF COMMENCEMENTS AND CONCLUSIONS OF 
 DECLAEATIONS. 
 
 It was a rule, under the old practice, that every pleading 
 must have its proper comment and conclusion. The Decla- 
 ration commenced with a venue^ that is, the name of a County 
 and the words, "to wit." The object of the venue was 
 originally, that the cause might be referred, in Courts whose 
 jurisdiction extended over several Counties, to the jury of 
 the proper County. * It has no such use now in Maryland. 
 After the venue followed a recital of the oi-iginal wi'it. If 
 the riaintiff was a man, he was called a yeoman, and if a 
 single woman, she was called a spinster or widow. And if 
 
 7
 
 98 RULES OF TLEADING. 
 
 the action was trespass, tlie words, "with force and arms," 
 and "against the peace, government and dignity of the 
 State of Maryland" were recited. And in all actions, there 
 were equally artificial commencements to the declarations. 
 
 The conclusions, too, to declarations were very artificial. 
 The student can sec the old forms of Commencements and Con- 
 clusions to declarations in the 1 Yol. Evans Harris' Entries. 
 
 The seventy -fourth section of the Act of Simplification 
 has established a very simple form of Commencement and 
 Conclusion for declarations. The section is as follows : 
 
 "7-i. Every Declaration shall commence as follows, or 
 to the like effect: 
 
 " County {or City) A. B. by S. T. his Attorney {or 
 
 in Person as the case may be,) sues C. D. for, {here insert the 
 cause of action:)-^'' 
 
 And shall conclude as follows, or to the like effect : 
 
 "And the Plaintiff claims $ "(or if the action is 
 
 hronght to recover specific goods,) " the Plaintifi" claims a return 
 of said goods or their value, and $ for their detention." 
 
 Under the old system of pleading, the declaration in all 
 personal actions, alleged a damage of the Plaintiff', and spe- 
 cified the amount of the damage. If the action was brought 
 for the specific recovery of a liquidated or certain sum of 
 money or of a chattel, damages were claimed only for the 
 detention of such debt or chattel ; and the damages, not being 
 the main object of the action, were laid in a small sum. 
 But where the damages, as was the case in all personal ac- 
 tions besides those just mentioned, were the main object of 
 the action, they were laid liigh enough to cover the whole 
 demand. 
 
 As, by the Act of Simplification, the formal distinction 
 between debt and damages, in all actions where the Plaintiff 
 recovers a sum of money, has been, as we shall see, abolished, 
 and the judgment is rendered without any such distinction,
 
 RULES OF PLEADING. 99 
 
 the conclusion of the declaration is the same in all cases 
 where the Plaintiff seeks to recover money whether liqui- 
 dated or unliquidated. The Plaintiffj in the conclusion of 
 his declaration in such cases, claims a certain sum in dollars, 
 laro'e enoug;h to cover his Avhole demand or demands. As 
 it would be impossible in many cases, especially where sev- 
 eral causes of action are joined in the suit, for the plaintiff 
 to foreknow what amount would be allowed to him, it would 
 be necessary in such cases to claim a sum different from the 
 one that might be recovered ; and as the Plaintiff cannot 
 recover more than he claims, it is best, in all cases for the 
 recovery of money, to claim a round sum in dollars, large 
 enough to cover the real demand or demands, and take 
 judgment for the real amount allowed. 
 
 In replevin for the specific recovery of a chattel, the 
 damage being only for the detention of the chattel, and not 
 for its value, will, of course, be graduated in amount ac- 
 cordingly. 
 
 Any causes of action, numbered as hereinafter required, 
 stated between the commencement and conclusion given 
 above, will be a good declaration under the Act of Simpli- 
 fication. And the mere numbering of the separate causes 
 of action designates each as a different count, without any of 
 the formal statement, required by the old system of its being 
 a separate count, and without the corresponding commence- 
 ment and conclusion. 
 
 OF PLEADINGS SUBSEQUENT TO THE DECLA- 
 RATION. 
 
 "We now enter upon the consideration of the rules exclu- 
 sively for framing the Pleadings which occur after the 
 Declaration. These Pleadings are : 1. The Plea, which is 
 the Defendant's answer to the Declaration ; 2. The Replica- 
 tion, which is the Plaintiff's answer to the Plea; 3. The 
 Rejoinder, which is the Defendant's answer to the Replica-
 
 100 RULES OF PLEADING. 
 
 tion ; 4. The Surrejoinder, Avliicli is tlic Plaintiff's answer 
 to the Kejoinder; 5. The Eebutter, which is the Defendant's 
 answer to the Surrejoinder ; 6. The Surrebutter, which is 
 the Plaintiff's answer to the Eebutter, There is no name 
 for any further pleading; and it seldom occurs, that the 
 pleadings extend beyond the rejoinder; as the rejoinder 
 must support and not depart from the plea. (1st Chit. Plea. 
 563.) The demurrer can, of course, be used instead of 
 either of these pleadings. 
 
 The plea is, by far, the most important of the pleadings 
 which occur after the declaration ; and many of the rules 
 which we are about to consider, as will be seen, apply exclu- 
 sively to it. Pleas, which go to the merits of the case, and 
 deny that the Plaintiff ever had any cause of action; or 
 admitting that he had, insist that it is determined by some 
 subsequent matter, are Galled pleas in bar. And it is to this 
 class of pleas, that the rules about to be considered apply. 
 It is entirely out of the scope of pleading to state the various 
 defences in actions. These the Student must learn from 
 the general law. The of&ce of pleading is merely to de- 
 fine their scopes and to show the mode of stating them. The 
 defences, however, which most usually occur in practice, 
 will be given in the Forms in the third chapter of this 
 treatise. 
 
 The first of the rules under this head, is embraced in the 
 seventy-fifth section of the Simplifying Act, in these words : 
 
 75. " Every pleading must be an. answer to the whole of 
 what is adversely alleged ; but where there are several allega- 
 tions, each of which is essential to the support of the Plead- 
 ing, the opposite party may traverse one or more of them, 
 as he pleases." 
 
 This rule defines the scope of every pleading subsequent 
 to the declaration. Each must be an answer to the whole 
 of what is alleged in the pleading which it answers. Or, 
 what is the same thing, it must answer some allegation that
 
 RULES OF PLEADING. 101 
 
 is essential to tlie adverse pleading. In eitlier case, the 
 adverse pleading will be overthrown, if the subsequent 
 pleading be sustained. 
 
 And the seventj-sixth section of the Simplifying Act 
 gives a rule that is a consequent of this one. It is as 
 follows : 
 
 76. " Whenever a plea does not answer the whole decla- 
 ration, whether it professes to do so or not, the Plaintifi' may 
 have judgment, as by nil elicit^ against the Defendant, in 
 respect of what is not answered." 
 
 For example: in an action for breaking a close, and 
 cutting down three hundred trees, if the Defendant pleads, 
 as to cutting down all but two hundred trees, some matter 
 of justification or title, and as to the two hundred trees says 
 nothing, the Plaintiff is entitled to sign judgment as by nil 
 elicit^ against him, in respect of the two hundred trees, and 
 to demur or reply to the plea as to the remainder of the 
 {respass. Under the old pleading there was a distinction 
 in a case like this, where the Defendant's plea professed to 
 answer, and where it did not profess to answer the whole 
 trespass. In the first case, the plea was considered insuffi- 
 cient, and the Plaintiff could not sign judgment for the part 
 not answered, but must demur to the plea for insufficiency, 
 else, as we shall presently see, the action would be discon- 
 tinued. The simplified rule abolishes this distinction; and 
 in either case, a judgment, as by nil dicit^ can be entered for 
 the unanswered part. 
 
 Another rule, kindred to the two just considered, is con- 
 tained in the seventy-seventh section of the Act of Simplifi- 
 cation, in these words : 
 
 77. "Every pleading shall be considered as confessing 
 such traversable matters alleged on the other side, as it does 
 not traverse ; but facts not traversed shall not be taken as
 
 102 RULES OF PLEADING. 
 
 admitted for any otlier action between the same parties, if 
 the present issue be found for the person traversing." 
 
 If a party did not wish facts Avhich he does not traverse, 
 to be taken as admitted by him, in another suit that might 
 grow out of the same transaction under the old Pleading, 
 he protested as it was called, as to such facts — which was a 
 sham denial made merely to save him from the implied con- 
 fession of the facts not traversed, if another suit should be 
 instituted, in case the present one should go in his favor. The 
 rule under consideration does away with the necessity of 
 the protestation ; as, by it, the facts not traversed shall not be 
 considered as admitted for another suit, if the issue in the 
 present one be found for the party traversing. The Student 
 curious to see the Form of the Protestation, will find it in 
 Steph. Plead. 236. 
 
 As we have already seen, the Court, on demurrer, will 
 consider the whole series of pleadings and give judgment 
 for the party who, on the whole, appears to be entitled to 
 it. Thus, on demurrer to the replication, if the Court think 
 the replication bad, but perceive a substantial fault in the 
 2:>lea, they will give judgment, not for the Defendant, but 
 the Plaintiff, 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. 
 (Steph. Plead. 162.) From this, it is seen, that a pleading- 
 does not admit the sufficiency in law of the facts which it 
 answers. This rule is contained in the seventy-eighth sec- 
 tion of the Simplifying Act, in these words : 
 
 78. " A pleading shall not be considered as admitting 
 the sufficiency in law of the facts adversely alleged." 
 
 We have seen, by the fifty-second section of the Simplify- 
 ing Act, that matter of law must not be stated in a pleading. 
 If though such matter should be stated, it cannot be tra-
 
 RULES OF PLEADING. 103 
 
 versed. Questions of law are raised only by demurrer ; 
 therefore, the party wishing to deny a legal inference, which 
 may chance to be stated in a pleading, must do it by 
 demurrer. For example: to an action for fishing in the 
 Plaintiff's fishery, the Defendant pleaded, that the locus in 
 quo was an arm of the sea, in which every subject of the 
 realm had liberty and privilege of free fishing; and the 
 Plaintiff, in his replication, traversed that in the said arm 
 of the sea every subject of the realm had the liberty and 
 privilege of free fishing. This was held to be a traverse of 
 a mere inference of laiv, and therefore bad. But where an 
 allegation is mixed of law and fact, it may be traversed. 
 Thus, in answer to an allegation that a man was taken out 
 of prison by virtue of a certain writ of habeas corpus, it 
 may be traversed, that he was taken out of prison by virtue 
 of the writ. (Steph. Plead, pp. 215-16.) This matter is 
 regulated by the seventy-ninth section of the Simplifying 
 Act as follows : 
 
 79. " A traverse must not be taken upon matter of law : 
 but where a mere legal inference is stated in a pleading, 
 and the opposite party wishes to deny it, his course shall 
 be to demur. But where an allegation is mixed of law and 
 fact, it may be traversed." 
 
 It is not necessary to state in a pleading, matter that is 
 implied in it. For example : If a man pleads that he is 
 heir to A., he need not say that A. is dead ; for it is implied, 
 as no one can be the heir of a living man. But the opposite 
 party may, instead of denying that ho is heir to A., plead 
 specially, that A. is not dead. This is authorized by the 
 eightieth section of the Act of Siniplilication. 
 
 80. "A traverse must not bo taken u[)0u matter not 
 alleged; but it may be taken upon matter, which, though 
 not expressly alleged, is ucccssarily implied."
 
 10-1: RULES OF TLEADING. 
 
 Where a Plaintifi' is, by law, entitled to recover in 'pro 
 portion to the loss or injury he has actually sustained, or the 
 service he has rendered, it follows that a traverse which ties 
 him up to prove the whole damage or claim stated in his 
 declaration, ought not to be allowed. Thus, on a policy 
 of insurance, the Plaintiff averred, tliat the ship insured did 
 not arrive in safety ; but that the said ship, tackle, apparel, 
 ordnance, munition, artiller}^, boat, and other furniture were 
 sunk and destroyed in the said voyage. The Defendant, 
 instead of denying disjunctively^ that the ship or tackle, &c., 
 was sunk or destroyed, denied conjunctively that the ship, 
 tackle, apparel, ordnance, munition, artillery -boat, and other 
 furniture, were sunk and destroyed in the voyage. As the 
 Plaintiff would be entitled to recover compensation /or any 
 part of that which was the subject of insurance, and had 
 been lost, the Defendant, obviously, ought not to be permitted 
 so to plead, that if issue be joined on his Plea, and he should 
 prove that only a cable or anchor arrived in safety, he 
 would be acquitted of the whole loss, as a traverse in the 
 conjunctive form would authorize. Therefore, upon de- 
 murrer, the traverse was adjudged bad. (2 Saund. 206.) So 
 in an action for compensation for the Plaintiff's service, as 
 a hired servant, the Plaintiff alleged that he served from 
 the 21st March, 161:7, to 1st November, 1664. The De- 
 fendant denied, that the Plaintiff served until the 1st of 
 November, 1664. This traverse ties up the Plaintiff, to 
 prove that he served the whole time alleged ; whereas he is 
 entitled to compensation pro tanto^ for any period of service. 
 The traverse is therefore bad. (1 Saund. 267-8, n, (1).) 
 The principle of these cases is contained in the eighty-first 
 section of the Simplifying Act, in these words : 
 
 81. "Where a part of the facts stated constitute a cause 
 of action or a defence, the part must be denied as well as the 
 whole ; and if the part be proved it will be sufficient. And 
 where a sum of money is alleged to be due, the denial must 
 be, that no part of it is due ; and a general denial, or a
 
 EULES OF PLEADING. 105 
 
 denial that the whole sum is not due, shall be taken to 
 mean that no part of the sum is due." 
 
 The eighty- second section of the Simplifying Act, con- 
 tains a rule of kindred import with the one just considered. 
 Its design, like the one just considered, is to remedy the 
 evil of pleading too broadly, and thereby letting the real 
 issue slip through the alternate pleadings. It compels a 
 party, who is to answer a pleading, which is too broad to 
 plead in such a way as to na-^row the pleading of his adver- 
 sary, by denying it in a way that will enable the adversary 
 to sustain himself, if he really have a cause of action or a 
 defence, but less general than the one stated. This evil is 
 not likely to occur in practice, with the Kules for specific 
 statement prescribed by the Simplifying Act. This section, 
 like some others, is therefore, inserted out of abundant 
 caution. It is in these words : 
 
 82. " "Where an allegation, less general than the one set 
 forth in a pleading, would constitute a cause of action, or a 
 defence, or a reply, the Defendant or Plaintiff shall not deny 
 it generally, but shall so plead as to deny any cause of 
 action or defence in the case." 
 
 The next section of the Act grows out of the same diffi- 
 culty with the preceding section. It enacts, that where the 
 Plaintiff tenders such a traverse to the Defendant's plea, as 
 to enable himself to recover without proving any right in 
 himself, the pleading shall be amended. It will, perhaps, 
 be a little startling to even the most experienced lawyer, 
 that the exigencies of judicial investigation should be 
 thought to require such a Rule. But there have been 
 cases, where judgment has been given for a Plaintiff', though 
 he had proved no right in himself; owing to the issue 
 formed by the pleadings being too broad ; as for instance : 
 In an action for fishing in the Plaintiff''s fishery, the De- 
 fendant pleads that all persons have the right to fish in it,
 
 106 RULES OF TLEADING. 
 
 • and the Plaintiff replies that all persons have not the right. 
 Upon such an issue the Plaintiff would have judgment by 
 showing that it was the separate right of any person ; and 
 his own right might not come into controversy at all. Just 
 such a case as this, was argued several times in the Exche- 
 quer Chamber in England, before the Court could bring 
 themselves to reverse the judgment. Though the Court 
 did at last say in their judgment, that " from the moment 
 it appeared that upon the pleadings the Plaintiff might 
 have recovered a verdict in an action of trespass, without 
 having either possession or right, it seemed very difficult to 
 support the judgment." The section is as follows: 
 
 83. " Whenever the traverse tendered by a Plaintiff" to 
 the Defendant's plea is such as will enable the Plaintiff" to 
 recover, without proving his right, it shall, upon motion, be 
 amended by the Court." 
 
 "We have seen, that by the seventy -fifth section of the 
 Simplifying Act, every pleading must be an answer to the 
 whole of what is adversely alleged. This was the rule 
 under the old system of pleading ; and if the Defendant's 
 plea did not answer the whole Declaration, and the Plaintiff 
 failed to take judgment for the part not answered, but only 
 demurred or replied to the plea, there was thereby produced 
 an interruption or chasm in the pleading, called, in tech- 
 nical phrase, a discontinuance. The eighty-fourth section of 
 the Act of Simplification is designed to prevent a discon- 
 tinuance in such cases. It is as follows : 
 
 8i. " Whenever a plea does not answer the whole de- 
 claration,- and the Plaintiff demurs to it, without entering 
 judgment for that part of his declaration which is not 
 answered by the plea, the action shall not be discontinued, 
 but the demurrer shall apply to the plea, in the same man- 
 ner, as if judgment had been entered for the part of the 
 declaration not answered."
 
 RULES OF PLEADING. 107 
 
 The seventv-sixtli section of tlie Simplifying Act is co- 
 operntive with the eighty-fourth section, as has been seen, 
 in remedying the evil when a plea does not answer the 
 whole declaration. The two sections must, therefore, be 
 considered together. 
 
 The next section of the Act of Simplification is in these 
 words : 
 
 85. " It shall not be allowable, both to plead and demur 
 to the same matter ; but if the demurrer be overruled, then 
 the party shall be allowed to withdraw the demurrer and 
 to plead." 
 
 This rule, it will be observed, only prohibits the pleading 
 and demurring; to the same matter. It does not forbid this 
 course in regard to distinct statements. A man may plead to 
 one count, or one plea, and demur to another. (Step. Plead. 
 296.) 
 
 We have, heretofore, shown that the demurrer is the 
 pleading, by which "questions of law are raised. But it 
 must be observed, that the whole proceeding of trial by 
 jury, takes place under the superintendence of a Judge, 
 who decides all points as to the admissibility of evidence, 
 and directs the jury on all such points of law arising on the 
 evidence, as are necessary for their guidance in appreciating 
 its legal effect, and drawing the proper conclusion in their 
 verdict. These questions of law that spring out of the 
 application of the evidence to the pleadings, are raised, by 
 either part}^, by a prayer, as it is called, to the Court for its 
 instruction on the questions to the jury; and the "jury are, 
 in civil cases, bound by the instruction of the Court on all 
 such questions of law, just as the decision of the Court, in 
 questions of law raised by demurrer, must be considered 
 the la,w of the case. This principle is embodied in the 
 eighty-sixth section of the Simplifying Act, as follows :
 
 108 RULES OF PLEADING. 
 
 86. " All questiqjis of law, unless raised by demurrer, 
 shall fall uuder the decision of the Jury in the issue in fact, 
 subject to the direction of the Court, upon a praj^er for that 
 purpose." 
 
 The eighty-seventh section of the Simplifying Act pro- 
 vides for the case where a pleading amounts to neither a 
 traverse nor a confession and avoidance. It is in these 
 words : 
 
 87. " When a party pleads, it must be either by Avay of 
 traverse, or of confession and avoidance; and if the plead- 
 ing amounts to neither of these modes of answer, it shall, 
 upon motion be set aside." 
 
 In pleading it may sometimes happen, that the pleadings 
 of both parties will be afiirmative in the forun of ivords, and 
 yet are sufficiently affirmative and negative in effect to form 
 a good issue. Thus if the Defendant plead that he was born 
 in France, and the Plaintifi:' that he was born in Maryland, 
 an issue will be formed. But the two affirmatives may not 
 impliedly negative each other ; and the simplifying Act has 
 provided a rule for such a case as follows : 
 
 88. " Whenever in pleading, there shall be two affirma- 
 tives which do not impliedly negative each other, the next 
 pleading to be pleaded shall deny the last affirmative ; and 
 the other shall go for nothing." 
 
 This rule can hardly ever be needed in practice ; it being 
 precautionary against a possible evil only. 
 
 It certainly comports with every notion of justice that the 
 parties to an action should be at liberty, to place before the 
 tribunal which is to decide upon their disputes, all the 
 grounds upon which they can fairly rest their claim or de- 
 fence. But then it is clear to all who have experience in
 
 RULES OF PLEADING. 109 
 
 judicial investigations, that some limit sliould be put to tlie 
 liberty of pleading or replying several matters whether of 
 fact or law. To devise a rule, which will afford sufficient 
 liberty to the parties of presenting all the grounds of their 
 claim or defence, without allowing them a license which 
 they can abuse, is no easy matter. The Act of Simplifica- 
 tion gives the fullest liberty to both Plaintiff and Defendant, 
 subject to the discretionary control of the Court. The dis- 
 cretionary control of the Court is better than any fixed rule 
 of limit ; because such a rule must in some cases operate 
 unjustly, as it cannot anticipate and provide for every con- 
 tingency ; whereas a wise discretion can j^rovide for it when 
 it does arise. But to prevent the discretion of the Court 
 from being exercised arbitrarily, it is limited by the affidavit 
 of the parties. And the parties too are checked by their 
 oaths, and by costs. The section of the Act is in these words : 
 
 89. " The Plaintiff" in any action may plead, in answer to 
 the plea or any subsequent pleading of the Defendant, as 
 many several matters as he shall think necessary to ^stain 
 his action: and the ' Defendant in any action may plead, in 
 answer to the Declaration, or other subsequent pleading of 
 the Plaintiff", as many several matters as he shall think ne- 
 cessary for his defence ; provided, that the party so pleading 
 or his Attorney makes affidavit, if required by the Court, 
 to the effect, that he is advised and believes that he has just 
 ground to traverse the several matters proposed to be tra- 
 versed by him, and that the several matters sought to be 
 pleaded as aforesaid, by way of confession and avoidance, 
 are respectively true in substance and in fact. And the 
 costs of any issue, either of fact or law, shall follow the find- 
 ing or judgment upon such issue, and be adjudged to the 
 successful party, whatever may be the result of the other 
 issue or issues." 
 
 At the common law a Defendant could plead only one 
 defence to the Plaintiff"'8 claim, no matter how many valid
 
 110 RULES OF PLEADING. 
 
 defences he had. But as the rule was found by experience, 
 to operate injustice, the Statute of 4 & 5 Anne, ch. 16, sec. 4, 
 gave the Defendant the liberty to plead several pleas to the 
 same claim or complaint, " with leave of the Court." The 
 Simplifying Act has extended the principle of the Statute 
 of Anne beyond the plea, to which that statute confined it, 
 to all the subsequent pleadings. 
 
 Under the old system, pleadings subsequent to the Dec- 
 laration were required to have their proper formal com- 
 mencements and conclusions. These defined the character 
 of the pleadings : showing whether they were intended as 
 being in abatement, or in bar, &c. Accordingly, if a plea 
 commenced and concluded, as in bar, but contained matter 
 sufficient only to abate the writ, it was a bad plea in bar, 
 and no plea in abatement. And if a plea commenced and 
 concluded, as in abatement, and showed matter in bar, it 
 was a plea in abatement, and not in bar. And as the con- 
 clusion of all pleadings, which did not tender issue as it was 
 called^ prayed the judgment of the Court, it was in such 
 cases called, the prayer of judgment. The commencement 
 to a plea in bar was called Actionem non; to a plea in bar 
 founded on matter arising after the commencement of the 
 action, was called Actionem ulterius non ; to a plea in bar, to 
 an action of debt on bond, showing that the Plaintiff never 
 had any right of action, as that the bond was void for ille- 
 gality, was called Onerari non ; and to a replication to a plea 
 in bar, was Precludi non. The Simplifying Act has by the 
 ninetieth section abolished all these and the like formula, as 
 follows : 
 
 90. " In a Plea or subsequent pleading it shall not be 
 necessary to use any allegation of Actionem non, or Actionem 
 ulterius non, or Onerari non, or to the like effect, or any 
 Prayer or Judgment, nor shall it be necessary in any Eepli- 
 cation or subsequent Pleading, to use any allegation of Pre- 
 cludi non or to the like effect, or any Prayer of Judgment."
 
 RULES OF PLEADING. Ill 
 
 The old system also required Pleas to he pleaded with 
 defence^ w-hich was a certain form of words, by which the 
 plea was introduced ; the form varying in some degree 
 according to the nature of the action. In trespass it was as 
 follows : " And the said Defendant by T. T. his attorney, 
 comes and defends the force and injury when," &c. In all 
 other personal actions : " And the said Defendant by T. T. 
 his attorney, comes and defends the wrong and injury 
 when," &c. The ninety-first section of the Act of Simplifi- 
 cation abolishes this formal defence and introduces a very 
 simple commencement, and requires no conclusion, for 
 Pleas. It is as follows: 
 
 91. "No formal defence shall be required in a Plea, or 
 Avo^^Ty, or Cognizance, and it shall commence as follows, 
 or to the like effect : 
 
 " The Defendant by his Attorne}^, {or in person, as 
 
 the case may be) says that [here state First Defence)'''' 
 
 And it shall not be necessary to state in a second or other 
 Plea, or Avowry, or Cognizance, that it is pleaded by leave 
 of the Court, or according to the form of the Statute, or of 
 the Act of Assembly, or to that efiect ; but every such Plea, 
 Avowry, or Cognizance shall be written in a separate para- 
 graph, and numbered, and shall commence as follows, or to 
 the like effect : 
 
 "And for a Second (&c.) Plea the Defendant says that 
 {here state Second {<&c) Defence:)^'' or if pleaded to part only, 
 then as follows, or to the like effect : 
 
 "And for a Second (&;c.) Plea to {stating to ivhat it is 
 pleaded) the Defendant says that," &c., 
 
 and no formal Conclusion shall be necessary to any Plea, 
 Avowry, Cognizance, or other subsequent Pleading." 
 
 It is seen that the terms, Avoicry and Cognizance are used 
 in the above section. They arc pleadings peculiar to the 
 action of lieplevin. If the Defendant pleads some matter
 
 112 RULES OF PLEADING. 
 
 confessing tlic detaining of tlie property, but showing lawful 
 title or excuse, such pleading is not (as it would be in other 
 actions) called a plea in bar, but an avowry or cognizance ; the 
 former term, applying to the case where the Defendant sets 
 up right or title in himself: the latter, where he alleges 
 right or title to be in another person by whose command he 
 acted. The answer to the avowry or cognizance is called a 
 23lea^ then follows the replication, ka. ; the ordinary name of 
 each pleading being postponed one step. The avowry and 
 cognizance are, in fact, of the nature of a declaration. 
 
 The ninety-second and ninety-third sections of the Sim- 
 plifying Act enable a party to plead any defence which may 
 arise after the commencement of the action, or after the last 
 pleading, without any other form than that which the nature 
 of such pleadings must necessarily have, in the language 
 wdiich expresses them the most exactly. These two sections, 
 together with the two immediately preceding, make the form 
 of all pleas as simple as the most exact demands of a com- 
 mon sense system of law procedure can require. The sec- 
 tions under special consideration are in these words : 
 
 92. " Any defence arising after the commencement of any 
 action shall be pleaded according to the fact, without any 
 formal commencement or conclusion ; and any plea, which 
 does not state whether the defence set up arose before or 
 after action, shall be deemed to be a plea of matter arising 
 before action. 
 
 93. " Any defence w^hich may arise after the last pleading, 
 in any case, may be pleaded with an allegation that the mat- 
 ter has arisen since the last pleading," 
 
 By the ninety-fourth, fifth and sixth sections of the Act 
 of Simplification, in all actions, except for causes into which 
 some degree of criminality enters (which are enumerated), 
 the defendant, or one or more of several defendants, shall be
 
 RULES OF PLEADING. 113 
 
 at liberty to pay into Court a sum of money,- by way of 
 compensation or amends ; and tbe plaintiff" shall either accept 
 or reject the sum so paid in. And in case he shall reject the 
 sum, and the jury shall find that it is sufficient, the defend- 
 ant shall be entitled to his costs of suit, and the plaintiff 
 only to the sum paid into Court. And a proper form of 
 plea is provided for the case. 
 
 These sections are intended to encourage the settlement 
 of cases without trial. The rights of plaintiff and defendant 
 are equally considered. If the plaintiff does not accept the 
 sum paid into Court, he runs the risk of paying the costs of 
 the suit. And as the defendant is precluded from denying the 
 claim of the plaintiff, if he pleads a sum in satisfaction, so 
 far as the matter to which it is pleaded is concerned, he will 
 hardly make such an offer, except in cases where justice 
 requires it. The excepted cases involve an injury to the 
 plaintiff's feelings, and are not properly within the justice of 
 the rule ; as in such cases a plaintiff ought to have a free 
 course of redress, to deter men from wrongs to their neigh- 
 bours. The sections are as follows: 
 
 9-i, " It shall be laAvful for the defendant, or for one or 
 more of several defendants, in all Actions (except Actions 
 for Assault and Battery, False Imprisonment, Libel, Slander, 
 Malicious Arrest or Prosecution, Criminal . Conversation, or 
 debauching of the Plaintiff's daughter or servant), to pay 
 into Court a sum of money, by way of compensation or 
 amends ; and the money shall be paid to the Clerk, subject 
 to the order of the Court, and the Clerk shall give a receipt 
 for it upon the back of the plea, and the said sum shall be 
 paid out to the Plaintiff) or his Attorney, upon a written 
 authority from the Plaintiff' on demand. 
 
 95. " When money is paid into Court, such payment shall 
 be pleaded as near as may be in the following form : 
 
 " 'The Defendant, by , his Attorney {or in person^
 
 ll-t RULES OF PLEADING. 
 
 d-c.,) (if plefided to part, sa}', as to $ , parcel of the money 
 
 claimed), brings into Court the sum of $ , and says that 
 
 the said sum is enough to satisfy the claim of the Plaintiff, 
 in respect of the matter therein pleaded to.' 
 
 96. " The Plaintiff, after the delivery of a plea of Pay- 
 ment of Money into Court, shall be at liberty to reply to the 
 same, by accepting the sum so paid into Court in full satis- 
 faction and discharge of the cause of Action, or of the mat- 
 ter in respect of which it has been paid in, and he shall be 
 at liberty in such case to have his costs taxed, and if they 
 be not immediately paid, he shall have judgment for the 
 costs so taxed ; or the Plaintiff may reply that the sum paid 
 into Court is not enough to satisfy the claim of the Plaintiff, 
 in respect of the matter to which the plea is pleaded ; and, 
 in the event of an issue thereon being found for the Defend- 
 ant, the Defendant shall be entitled to his costs of suit, and 
 .the Plaintiff to the sum paid into Court." 
 
 There are certain causes of action which may be con- 
 sidered to partake of the character both of breaches of 
 contract and of wrongs. It may, therefore, sometimes be 
 doubtful whether the plea should treat the declaration as 
 framed for a breach of contract or for a wrong. The ninety- 
 seventh section 9f the Simplifying Act applies to such cases 
 the following rule : 
 
 97. ""Whenever there may arise a doubt whether the 
 cause of action is of the nature of a breach of contract or 
 of a wrong, the Court shall give the Defendant the benefit 
 of the doubt ; and any Plea in such case, which shall be 
 good in substance, shall not be objectionable on the ground 
 of its treating the Declaration, either as framed for a breach 
 of contract or for a wrong." 
 
 It is a rule of pleading, that an entire plea is not divisible. 
 Therefore, if a plea be pleaded to the whole declaration, and 
 is not an answer to all the counts, though it be to some, the
 
 RULES OF PLEADING. 115 
 
 plea being indivisible, is no answer to the connts to wliicli 
 it would be an answer if pleaded to tliem onlj^. Tbe plea 
 of set-off, under tlie old system of pleading, was no excep- 
 tion to this rule, and if pleaded to the wbole declaration, and 
 the Defendant proved some amount of set-off, but not exceed- 
 ing or equalling the Plaintiff's aggregate demands, the De- 
 fendant could have no allowance for so much as proved, but 
 the Plaintiff would have verdict for his whole claim. (1st 
 Saund. E. 28, n. 2, and n. d) The Act of Simplification 
 has changed the rule in regard to set-off, and other pleas 
 which are, like it, distributive in their nature, by the follow- 
 ing section : 
 
 98. " Pleas of payment and set-off, and other pleadings 
 capable of being construed distributively, shall be taken 
 distributively, and if issue is taken thereon, and so much 
 thereof as shall be sufficient answer to part of the causes 
 of action proved, shall be found true by the Jury, a verdict 
 shall pass for the Defendant in respect of so much of the 
 causes of action as shall be answered, and f^r the Plaintiff 
 in respect of so much of the causes of action as shall not 
 be answered." 
 
 The ninety-ninth section of the Act of Simplification pre- 
 scribes a simple form of pleading, which will amount to a 
 denial, in the words of the allegation denied, of a plea or 
 any subsequent pleading and a joinder of issue thereon. It 
 is in these words : 
 
 99. " Either party may plead, in answer to the Plea or 
 Subsequent Pleading of his adversary, that he joins issue 
 thereon, which Joinder of Issue may be as follows, or to the 
 like effect : 
 
 '"The PLaintif[" joins issue upon the Defendant's 1st, &c., 
 {specifying vjJuit or lohal part,) Plea.' 
 
 " ' The Defendant joins issue upon the Plaintiff's Koplica- 
 tion to the 1st, &c., {specifying ivhat,) Plea.'
 
 IIG RULES OF PLEADING. 
 
 " And sucli Form of Joinder of Issue shall be deemed a 
 direct denial of the Substance of the Plea, or other Subse- 
 quent Pleading, and an issue thereon." 
 
 The hundredth section of the Simplifying Act is in these 
 AYords : 
 
 100. " Whenever any particular fact is selected and directly 
 denied, as well as where all the facts are directly denied, by 
 any pleading, the party to plead next, shall merely add a 
 joinder of issue." 
 
 By the old system of pleading, where ever an express 
 denial of fact occurred in pleading, issue must, at the same 
 time, be tendered on the fact denied. For, as by the con- 
 tradiction, it sufficiently appears, what is the issue or matter 
 in dispute between the parties, the pleadings ought to be 
 closed, and the method of deciding the issue be adjusted. 
 Tendering issue, meant an offer to refer the issue or matter 
 in dispute, to some mode of trial; and this was done by 
 annexing to the traverse an appropriate formula, proposing 
 either a trial by the country (i. e. by jury) or such other mode 
 as by law belonged to the point. The formula, tendering 
 an issue to be tried by a jury, was called the conclusion to 
 the country, and was as follows : " And of this, the said C. 
 D. puts himself upon the country." When the issue was 
 thus tendered, it being well tendered, nothing Avas left to 
 the opposite party but to accept or join in it, which might 
 be done in these words : " And the said A. B. doth the 
 like." This formula was called the similiter. 
 
 As by the ninety -first section of the Act of Simplification, 
 no formal conclusion is necessary to any plea or subsequent 
 pleading, the formula of tendering issue, and of joining in 
 it are done away. The hundredth section, therefore, is in- 
 troduced to compel a party to add a joinder of issue, where, 
 under the old system, one was necessarily tendered and 
 accepted. This joinder may be in the form given above in
 
 RULES OF PLEADING. 117 
 
 tlie ninety-nintli section of tlie Act of Simplification. And 
 sucli joinder of issue closes tlie pleadings. 
 
 The nest section, tlie one linndredth and one, is similar in 
 purpose \\4tlL tlie preceding. Whenever the defendant 
 cannot take any other issue, without a departure, than the 
 one formed by his plea, the Plaintiff may cut the pleadings 
 short at once, by adding a joinder of issue for the defend- 
 ant. The section is as follows: 
 
 101. "Whenever a Defendant cannot take any new or 
 other issue in his rejoinder, than the matter he has pleaded, 
 without a departure from his plea, or when the issue on the 
 rejoinder would be the same in substance, as on the plea, 
 the Plaintiff shall, in his Replication, plead that he joins 
 issue on the Defendant's plea, and may add a joinder of issue 
 for the Defendant." 
 
 The next two sections of the Act of Simplification relate 
 to traverses of immaterial matter. The first of the sections 
 applies where the traverse is exclusively of immaterial 
 matter. The second applies, where it is only partially of 
 immaterial matter. As the precise and simple mode of 
 statement employed in the simplified pleadings, leaves out 
 a great deal of immaterial matter which was required, for 
 the sake of form, in the old pleadings, the evil of traversing 
 immaterial matter will not occur so often as heretofore. The 
 sections are as follows : 
 
 102. " If a traverse be taken upon an immaterial allegation, 
 that is, on matter which is either irrelevant or insufficient in 
 law, or matter which is only introductory or explanatory, or 
 matter of aggravation, the opposite party may have judg- 
 ment as for want of a plea. 
 
 103. "No more of an allegation shall be traversed than is 
 material. The circumstances, which, though forming a part
 
 118 RULES OF PLEADING. 
 
 of the allegation, arc immaterial to the merits of the action, 
 must not be traversed, and, if traversed, the traverse shall 
 upon motion be corrected, the party so traversing paying 
 costs." 
 
 The next section which comes under consideration is in 
 these words: 
 
 10-i. "It shall not be necessary for the Defendant to verify 
 the truth of any plea, except dilatory pleas, by affidavit or 
 affirmation ; nor being heir, executor, or administrator, to 
 obtain leave of the Court, to put in a plea denying that the 
 alleged deed, in the suit, is not the deed of the ancestor, tes- 
 tator or intestate." 
 
 The Act 1785, ch. 80, 3, required a Defendant to verify 
 by af&davit or affirmation the plea of non est factum ; and 
 an heir, executor or administrator, to obtain leave of the 
 Court, npon just cause shown, to plead such a plea. The 
 Act of Simplification has abolished the general issues, and 
 therefore there is now no general issue, non est factum ; yet 
 there is a plea in the same form of negation ; and to prevent 
 disputes as to the effect of the abolishment of general issues, 
 on the third section of the Act 1785, ch. 80, the 104 section 
 of the Act of Simplification was introduced. The section 
 does not dispense with the requirement of the Statute 4th 
 Ann., ch. 16, that the truth of dilatory pleas be proved by 
 affidavit. 
 
 OF NEW ASSIGNMENT. 
 
 The generality of statement allowed in the Declaration in 
 some actions, especially the action of trespass, under the old 
 system of Pleading, sometimes did not sufficiently guide the 
 Defendant to the proper cause of complaint. The Defend- 
 ant, therefore, in his plea, answered a different matter from
 
 KULES OF PLEADING. 119 
 
 the one tlie Plaintiff sued liim for. For example : — Tlie 
 Plaintiff had been assaulted by the Defendant twice, and the 
 first assault was justifiable, having been committed in self- 
 defence ; but the second was committed without any legal 
 excuse. The Plaintiff sues the Defendant for the secqnd 
 assault ; but as time is not material in such an action, though 
 necessary sometimes, as in this instance, to distinguish one 
 assault from another, the Declaration states the time in so 
 general a way as not to indicate to which of the two assaults 
 the action refers. The Defendant, therefore, supposes, or 
 pretends that he supposes, that the first is the assault for 
 which he is sued, and pleads self-defence. Now, as the gen- 
 erality of the Declaration had led the Defendant into a mis- 
 take, if the Plaintiff should traverse the Defendant's plea of 
 self-defence, the Defendant would have the right, under the 
 issue joined upon such traverse, to presume that it was the 
 assault committed in self-defence which he was sued for, and 
 consequently to prove the self-defence. As then, the Plain- 
 tiff could not traverse the Defendant's plea with safety, and 
 having no ground for demurrer, or for pleading in confes- 
 sion and avoidance, he is compelled to correct the mistake 
 occasioned by the generality of his declaration, by a new 
 pleading, and declare that he sued not for the first but the 
 second assault. This pleading is called a new assignment. 
 The matter new assigned must be consistent with the decla 
 ration, and not varying from or more extensive than the 
 trespasses therein enumerated, or those which the Defendant 
 has in his plea professed to answer ; for a new assignment 
 is merely to avoid the effect of the plea which can only 
 operate upon the trespasses thereby admitted. The new 
 assignment always occurs in answer to a plea, and is, there 
 fore, in the nature of a replication repeating the declaration, 
 and distinguishing the true ground of complaint from that 
 covered by the plea. 
 
 The Act of Simplification has three sections on the sub- 
 ject of new assignment. They are as follows ;
 
 120 RULES OF PLEADING. 
 
 105. "Where the Defendant pleads an evasive plea, either 
 as to the whole or a part of the cause of action set forth in 
 the Declaration, the Plaintiff" may avoid the effect of such 
 plea, by restating his cause of action with more particularity, 
 consistently however with the more general statement set 
 forth in the Declaration. 
 
 106. "One new assignment only shall be pleaded to any 
 number of pleas to the same cause of action ; and such new 
 assignment shall be consistent with and confined by the 
 particulars, if any, delivered in the action, and shall state 
 that the Plaintiff proceeds for causes of action different from 
 all those which the pleas profess to justify, or for an excess 
 over and above what the defences set up in such pleas jus- 
 tify or both. 
 
 107. "No plea, which has already been pleaded to the De- 
 claration, shall be pleaded to such new assignment except 
 a plea in direct denial, unless by leave of the Court ; and 
 such leave shall only be granted, upon satisfactory proof 
 that the repetition of such plea is essential to a trial of the 
 merits." 
 
 These sections modify the old law of new assignment, in 
 a way which it is not necessary to mention. But it is hoped 
 that the simplified pleadings will obviate the necessity, in 
 practice for new assignments. 
 
 RULES WHICn MAKE THE ISSUE A CERTAIN 
 
 ONE. 
 
 We have already considered the general rules for framing 
 the machinery of pleadings. We will now consider other 
 rules that are auxiliary, in making the issue certain. The 
 rules, which we have considered, do, of course, contribute to 
 certainty in the issue: but still these auxiliary rules are
 
 RULES OF PLEADING. 121 
 
 necessary to point more specifically, to some matters of 
 "wliich pleadings are composed, tliat could not be well stated 
 in tlie more general rules which we have considered. 
 "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. Now, all the rules for framing the machinery 
 of pleading, tend to develope the question in controversy, 
 by means of that machinery, in a specific shape. But as 
 these general rules cannot point out the degree of specifica- 
 tion with which the question should be developed, it be- 
 comes necessary, to lay down special rules in regard to 
 certain facts that must be particularised in different cases, 
 in order to produce a certain issue. These rules we will 
 now proceed to consider. 
 
 OF NAMES OF PERSONS. 
 
 The rules, of this auxiliary kind, of which I shall first 
 treat, relate to the names of persons, whether parties to an 
 action or only mentioned in a pleading. It is, of course, in- 
 dispensable to all just legal procedure that the parties meant 
 to be affected by it, should be designated so as to be identi- 
 fied as the proper persons. At the same time, it is expe- 
 dient, that the mere misnomer of a person, whether party to 
 the action or not, should not be entirely fatal to an action : 
 provided the person intended to be reached by the process 
 is actually reached, and it can be made so to appear to the 
 Court. And it is further expedient, that all errors of mis- 
 nomer be corrected in the speediest and least expensive mode 
 consistent with justice. The Act of Simplification has de- 
 vised three rules to carrying into effect these views. They 
 are contained in the following sections : 
 
 108. " The Declaration as well as the Summons shall set 
 forth accurately the Christian names and surnames of both 
 parties, and the Christian names and surnames of persons
 
 122 RULES OF PLEADING. 
 
 not parties to the action : but wliere the name of a person, 
 not a party to the action, shall not be known, an allegation 
 of the fact shall be sufficient." 
 
 109. "Whenever a party shall be sued by a wrong Chris- 
 tian name or surname, or both, upon affidavit or other proof 
 to the satisfaction of the Court, at any time before trial, that 
 the writ or process has been served upon the person intended 
 to be sued, the Court shall, upon motion, direct any writ, 
 declaration or other pleading, or any entry, to be amended, 
 by inserting therein, the true name of the party, on such 
 terms as the Court shall deem fit. 
 
 110. " A mistake in the name of either party to the action, 
 or of a person not a party to the action, may be objected to 
 as a variance, at the trial." 
 
 It is seen that, by the hundreth and tenth section, a mis- 
 take in the name of either party to the action or of a person 
 not a party, may be objected to, at the trial, as a variance. 
 The doctrine of variance is this. The proof offered, may in 
 some cases wholly fail to support the affirmative of the issue ; 
 but in others, it may fail by a disagreement in some particu- 
 lar point or points only between the allegation and the evi- 
 dence. Such disagreement is called a variance; and when 
 upon a material point is as fatal to the party, on whom the 
 proof lies, as a total fliilure of evidence; the jury being 
 bound, upon variance^ to find the issue against him. Thus 
 the doctrine of variance, under the old system of pleading, 
 applied to the mistake of the name, of a person not a party 
 to the suit, but not, of o, party to the suit. A mistake in the 
 name of a party to the suit, could only be objected to by a 
 plea in abatement. The Simplifying Act has made the mis- 
 take in both cases a variance, at the trial. 
 
 When a Plaintiff discovers, at the trial, a variance, he 
 usually takes the course of avoiding a verdict, by volunta- 
 rily submitting to a judgment of non-suit; and for that pur-
 
 RULES OF PLEADING. 123 
 
 pose, "he is supposed to absent himself from tlie Court, Sucli 
 judgment does not prevent liim from bringing another 
 action ; but a verdict would bar him forever. 
 
 Misnomer, however, will, under the rules of the two pre- 
 vious sections, be almost always corrected before trial ; and 
 a judgment of non-suit avoided. 
 
 OF TIME. 
 
 As every transaction must occur, and every object exist, 
 in time, it was very natural that the time should be stated 
 in pleadings. But as time, in most matters of litigation, does 
 not pertain to the merits of the controversy, it soon became 
 a rule, that, generally, one time might be stated and another 
 proved ; if the time be laid under a videlicit, which was a 
 technical indication that the true time was not intended to 
 be stated. The Act of Simplification, as we have seen in 
 the fifty-third section, declares that time shall not be stated 
 when it is immaterial. It therefore, left time, when it is 
 material, as under the old law ; and has embodied the rule 
 in the hundreth and eleventh section in these words : 
 
 111, "When Time forms a material point in the merits 
 of a cause, the day, month and year, or when there is a con- 
 tinuous act, the period of its duration, must be alleged, and 
 proved as laid. "When Time is not material, it need not be 
 mentioned, and if mentioned, need not be proved," 
 
 OF PLACE. 
 
 Every matter of litigation must occur or exist in Place 
 as well as Time ; and therefore Place, like Time, would be 
 naturally stated in pleadings. Originally, every fact was 
 laid in the Place where it was really done ; and therefore 
 the written contracts bore date at a certain Place. The ori-
 
 124 RULES OF PLEADING. 
 
 ginal object of tlius designating the Place, or laying a venue 
 as it was called, was to determine the Place from which the 
 jury should be summoned to try the issue in fact ; as the 
 jury in the earliest times consisted of persons who were cog- 
 nizant, of their own knowledge, of the fact in dispute, and 
 were witnesses giving testimony, and not, as now, triers of 
 fact on the testimony of others. Soon a distinction was 
 taken, that in transitory, matters, where Place formed no 
 material part of the issue, one Place might be alleged, and 
 another proved, just as in the case of Time. The Simplify. 
 ing Act therefore, taking advantage of all the mutations in 
 the doctrine of Venue which a long practice of Courts has 
 wrought, has dispensed with the statement of Place when 
 not a material part of the issue, and made it necessary to 
 allege it only when it forms a part of the substance of the 
 issue. The Eule regulating the matter is contained in the 
 hundreth and twelfth section in these words : 
 
 112. "It shall be necessary to allege a Place only when 
 it is descriptive of the subject matter of the action, and 
 forms a part of the substance of the issue ; and it must be 
 proved as laid." 
 
 OF QUALITY OR KIND. 
 
 "We have heretofore with a view to their Pleadings 
 considered causes of action founded on breaches of con- 
 tract. We will now consider causes of action founded on 
 injuries to property, with a view of showing how the prop- 
 erty must be described in pleading. 
 
 When property is involved, in any degree in litigation, 
 it is, of course, necessary to designate it. The most com- 
 prehensive legal designations are real or personal. But this 
 is not sufficient to identify it. It must be so described as 
 to distinguish it from all other real or personal property. 
 
 As regards personal property, this is done by specifying
 
 RULES OF PLEADING. 125 
 
 its kind. Tlie Act of Simplification therefore uses tlie word 
 kind^ as more appropriate than the word quality used by the 
 old law ; the word q^iality being commonly used to signify 
 degree of^ excellence, and not specific difference, as it is required 
 to signify in this instance. As the distinctions of hind are 
 matter of common and not legal designation, the exigencies 
 of pleading need no other rule on the subject, than that 
 personal property shall be described by its kind, as wheat, 
 rye, household furniture, &c. 
 
 But real property requires to be described in a different 
 mode. Its place or location is its fundamental element of 
 designation. It can be accurately designated only by arti- 
 ficial or imaginary lines separating it from all other real 
 property. But, as in actions for injuries to real property, 
 it is oftener the mere fact of the injury, or the title, than 
 the lines which comes into dispute, it is expedient that the 
 plaintiff should not be confined to a description by courses 
 and distances, but be permitted to use other easier modes of 
 description when he pleases to do so. Accordingly the law 
 has always allowed it. And the Plaintiff might under the 
 old law, in his declaration, describe the property by the 
 general name of his close. This indefiniteness of description, 
 upon the plea of liberum ienementum being pleaded by the 
 Defendant, compelled the Plaintiff to new assign, and 
 describe the property more accurately. This circuity, and 
 the consequent delay, ought to be prevented by compelling 
 the Plaintiff to describe the property in the declaration so 
 as to identify it. This, the Act of Simplification does ; and 
 the section is so worded as to embrace injuries to chattel as 
 well as to other interests in land or real property; for 
 though, in law, chattel interests in land are considered per- 
 sonal property, yet their nature is real, and therefore, they 
 must come under the rule describing real property. The 
 Act of Simplification regulates the description of personal 
 property by one section, and that of real pro})crty by 
 another. These sections are as follows :
 
 126 RULES OF PLEADING. 
 
 113. "Ill actions for injuries to goods and chattels, their 
 kind or species shall be alleged in the declaration, and 
 proved as laid. 
 
 114. " In actions for breaking the Plaintiff's close, or for 
 an injury to real property, the Plaintiff shall describe the 
 property, and when the injury is to an incorporeal herdita- 
 ment, shall describe the property in respect of which the 
 right is claimed, (as well as the right itself,) in his declara- 
 tion, either by the name by which the property is patented, 
 or by its abuttals, or by its courses and distances, or by any 
 name which it has acquired *by reputation, or by some other 
 description certain enough to identify it." 
 
 OF QUANTITY AND YALUE. 
 
 Under the old system of pleading, when the declaration 
 alleged any injury to goods and chattels, or any contract 
 relating to them, their quantity and value must be stated. 
 And the quantity and value must be specified by the ordi- 
 nary measures of extent, weight or capacity ; as three bushels 
 of tvheat, of the value of three dollars. 
 
 But these requirements were not always insisted upon 
 even as law ; for two j^cic^^s of flax, and a library of books 
 have been held to be sufficient specification of quantity in 
 declarations in trover ; and on an action for breaking the 
 the Plaintiff's close with beasts and eating his peas, a decla- 
 ration not showing the quantity of peas, has been held good ; 
 " because nobody can measure the peas beasts can eat." And 
 in actions of debt and indebitatus assumpsit for goods sold, 
 the quality, quantity or value of the goods sold was never 
 specified. Therefore, even Under the old system of plead- 
 ing, it was only where quantity and value formed a part of 
 the substance of the issue that, strictly, it was necessary to 
 state them in pleading. The Act of Simplification there- 
 fore, in the fifty-third section, requires that quantity and
 
 EULES OF PLEADING. 127 
 
 value when immaterial shall not be stated. But where they 
 form a part of the substance of the issue, they are required 
 to be stated, by the hundreth and fifteenth section as follows : 
 
 115. "Where quantity forms a part of the substance of 
 the issue, it must be alleged, and specified with reference to 
 the ordinary measures of extent, weight or capacity. And 
 where value forms a part of the substance of the issue, it 
 must be alleged and specified by the current coin of the 
 United States." 
 
 116. " And a verdict shall not be for a larger quantity or 
 value than is alles^ed." 
 
 OF TITLE. 
 
 Under the head of Quality or Kind, I showed how, in 
 actions for injuries to property both personal and real, the 
 property must be described in order to make its identity 
 certain. I will now show to what extent^ and Tiow the title 
 to the property must be alleged. 
 
 There are many different degrees of right or interest in 
 property, personal or real, from mere possession to absolute 
 ownership. Each of these degrees of interest can be injured. 
 Where an action is brought for an injury to property, it is 
 not necessary to disclose any fuller title than will sustain the 
 right which has been injured. If the Plaintiff has a mere 
 possession, he can sustain an action against a wrongdoer ; 
 and therefore in such action a Plaintiff need only allege 
 title of possession, even where he has a fee-simple. 
 
 When a title of possession is alleged with respect to 
 goods and chattels, the statement will be supported by proof 
 of any kind of presentinterest in the m, whether that interest 
 be temporary and special, as that of a carrier or finder, or 
 absolute, as that of an owner. So where a title of possession 
 is alleged in respect of corporeal or incorporeal hercdita-
 
 128 RULES OF PLEADING. 
 
 ments, it will be sufficiently maintained by proving any 
 kind of estate in possession, whether fee-simple, for life, for 
 term of years or otherwise. It is therefore expedient in 
 cases of injury to property to allege only title of possession ; 
 unless the injury be of an interest in remainder or reversion, 
 then, of course, it must be laid accordingly. And in respect 
 of goods and chattels the title can be laid in possession even 
 where there never has been actual possession ; as the pro- 
 perty of the goods and chattels draws to it the possession 
 in law. 
 
 The form of alleging title of possession in respect of goods 
 and chattels is, either to allege that they were " the goods 
 and chattels of the Plaintifl:"," or, that he "was laAvfully pos- 
 sessed of them as his own property." These forms of alle- 
 gation are equivalent ; and any one having a right to the 
 possession of goods and chattels may allege them, to be his 
 property, against a wrongdoer. And in an action of Reple- 
 vin for the specific recovery of the goods and chattels, the 
 allegation of mere title of possession is sufficient, and has 
 always been the mode of allegation in that action. 
 
 The form of alleging title of possession in respect of real 
 property, where the action is for breaking the Plaintiff's 
 close is, "certain land of the Plaintiff," &c.; or where the 
 action is for obstructing his right of way, " was possessed of 
 land, &c., and was entitled to a way from said land," &c. 
 These forms of allegation have been prescribed in the Forms 
 given in the Simplifying Act, as we shall see. 
 
 Having considered the case where a party alleges title in 
 himself, I will now consider the case where he alleges title 
 in his adversary. It is a general rule, that it is not necessary 
 to state the title of an adversary with as much precision, as 
 one's own title. It must, however, be stated sufficiently to 
 show liability in the adversary. 
 
 In showing the liability of the party charged, it is in most 
 cases sufficient to allege title of possession ; which may be 
 done in the same forms as when alleging the same title in 
 the party pleading. And if the interest of the party charged
 
 RULES OF PLEADING. 129 
 
 be in the remainder or reversion, the title must he laid 
 accordingly. In an action for rent against an assignee of a 
 term of j^ears, it would be necessary to allege that he was 
 in possession as assignee. 
 
 There was an exception under the old system of pleading, 
 to the doctrine that it is sufficient to allege mere title of 
 possession against a wrongdoer. In replevin for cattle 
 taken damage feasant, if the Defendant pleaded that he is 
 possessed of a messuage and entitled to common of pasture 
 as appurtenant thereto, and that he took the cattle damage 
 feasant, such mere allegation of possession was not sufficient. 
 He was compelled to allege a fuller title to the messuage 
 and common of pasture. 
 
 There was no reason of practice for such doctrinal excep- 
 tion. For, if the Defendant had brouo-ht an action for the 
 very same damage which he now pleads the cattle were 
 committing, the allegation of mere title of possession would 
 have been sufficient to sustain his action. Though, perhaps, 
 no such case can occur in Maryland, still, out of caution, 
 the Simplifying Act, as we shall presently see, has abolished 
 the exception. 
 
 "Where a person entitled to a right of way or other incor- 
 poreal hereditament over the land of another, in respect of 
 his possession of another piece of land, sues for an injury to 
 such right of way, or other incorporeal hereditament, he is 
 allowed, as I have already stated, to allege mere title of 
 possession of the laud, and the consequent right of way. 
 But if he should be sued by the person over whose land the 
 way runs for a trespass, and he should justify under his 
 right of way, he was, under the old system of pleading, 
 compelled in his plea to allege his precise title to the land 
 in respect of which the right of way was claimed ; and also 
 the particular ground of his right, as whether he claimed by 
 grant, by prescription, by express reservation, or by some 
 other mode. This rendered the pleading on the part of the 
 
 Defendant difficult and various. 
 
 9
 
 130 RULES OF PLEADING. 
 
 The conditions of fair trial do not require the right to be 
 stated more precisely in a plea than in a declaration. If 
 the general statement in the declaration gives sufficient 
 description of the right, it will do so in the plea. The title 
 ■will be involved in a denial of the injury coupled Avith the 
 general allegation in the declaration. Therefore the same 
 allegations in the plea when denied by the replication, will 
 also involve the title. The Simplifying Act has, therefore, 
 in actions relative to incorporeal hereditaments, made the 
 plea a counterpart of the declaration, in cases like those 
 just mentioned. 
 
 The remarks which we have made on the subject of title 
 are in connection with the following sections of the Act of 
 Simplification : 
 
 117. "When in pleading, an 3^ right or authority is set up 
 in respect of property, personal or real, some title to the 
 property must be alleged in the party, or in some other 
 person from whom he derives his authority. And if a party 
 be charged with any liability in respect of property, per- 
 sonal or real, his title to that pro]3erty must be alleged, and 
 proved as laid. 
 
 118. "In no case shall it be necessary to allege title more 
 particularly than is sufficient to show the right or authority 
 claimed, or the liability charged. 
 
 119. "In the action of replevin for cattle taken, damage 
 feasant, it shall be sufficient for the Defendant to allege 
 mere title of possession. 
 
 120. " In an action for breaking the Plaintiff's close, when 
 the Defendant justifies under a right of way or other incor- 
 poreal right over or in the Plaintiff's close, it shall not be 
 necessary for the Defendant, in his plea, to set forth his full 
 title to another close, in respect of which he claims such 
 right ; but he may plead generally, that he was possessed
 
 RULES OF PLEADING. 131 
 
 of his close, and had the right claimed, for the more con- 
 venient occupation of the close ; as a Plaintiff is allowed to 
 do in his declaration, when suing for an injury to such 
 incorporeal rights." 
 
 OF DERIVATION OF TITLE. 
 
 Under the old system of pleading, if the title was an 
 absolute one, as a fee simple, it was sufficient to allege a 
 seisin in fee sim'ple^ without showing the derivation or com- 
 mencement of the estate. But if the title was less than a 
 fee simple, it was necessary to state its commencement, that 
 is, to show the derivation of the title from the last seisin in 
 fee. The Act of Simplification modifies these Rules, and 
 enacts : 
 
 121. "It shall not be necessary to allege the commence- 
 ment of either a particular or of a superior estate, unless it 
 be essential to the merits of the cause." 
 
 As this section implieS; it is sometimes essential to the 
 merits of a cause to show the derivation of the title, both of 
 a fee simple, and a less estate. Thus : If an action be 
 brought by the lessor against the lessee on the covenants of 
 the lease, the Plaintiff need allege no title to the premises 
 demised; because a tenant is estopped from denying his 
 landlord's title. But, on the other hand, a tenant is not 
 bound to admit title to any greater extent than might 
 authorize the lease ; and, therefore, if the action be brought 
 not by the lessor himself, but by his heir, executor, or 
 assignee, the title of the lessor must be alleged ; in order to 
 show that the reversion is now legally vested in the Plain- 
 tiff in the character in which he sues. And if he sues as 
 heir, he must allege that the lessor was seised in fee; for 
 the tenant is not bound to admit that he was seized in fee; 
 and unless he was so, the Plaintilf cannot claim as heir.
 
 *132 ".- TIULES OF PLEADING. • ^ • 
 
 But if lac su?s as executor or assignee of a Icssoi-j who ha4 
 
 : been entitled for a terin of years, thougli it is uecessarj'-, in 
 
 the declaration to •etate the title of the lessor, in order to 
 
 show that the Plaintiff is entitled to maintain 'the action as 
 
 •his representative .or assignee, yet, as .the title is, -ih. this 
 
 case, alleged by way of inducement only (the action being 
 
 mainly founded on the lease i'tsclf,) the particular estate, for 
 
 years, may be alleged in the lessor, even' under the old 
 
 pleading, without showing its comnrejiGement; ^ ' . ■■ 
 
 The Act. of Simplification -has two' oiher Hcctions under 
 • » .» . 
 
 this "head bf derivation,of titlo. ' . Tlaey arc as follows : 
 -• ♦,'»■'' 
 
 122.. " Where'a'i^arty claims by inheritance, cither imme- 
 diate or* n^ediat'e,. he shall allege how he is heir, as son, 
 nepjiew, or otherwise. . 
 
 123. " Where a part}^ claims by conveyance, he may state 
 it according to its legal effect or name." 
 
 The first of these sections may be illustrated by the case 
 given above, of the party sning as the heir of a lessor. In 
 such case, he must show, whether he inherits as son, or 
 nephew, or as the case may be. The latter section may be 
 illustrated by the following example. In an action for a 
 trespass, if the Defendant pleads that E. F., being seised in 
 fee, demised to- Gr. H., under whose command the Defendant 
 justifies the trespass on the land ; and tlie Plaintiff in his 
 Eeplication admits E. F.'s seisin, but sets np 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. Now, the Plaintiff, in alleging the 
 conveyance of the fee from E. F. to himself, may simply 
 state that E. F, conveyed the land to him, in fee siviple, ante- 
 cedent to the lease to G. H. And it is observable, that the 
 Defendant, in alleging the lease to G. H., simply makes use 
 of the word demised. In pleading a conveyance for life or
 
 • • ..; . RULES OF PLEADING-. ' ■' 133 
 
 for years, the tetjlinical form is to allege it^as a demise for life 
 or for -years. But the description of if as a cpnveycvn(5efor life 
 or for years, especially since the simplification of Convey- 
 ancing in Maryland, is the most consistent, ■ and equally 
 correcrform of allegation. 
 
 EULES WHICH MAKE THE ISSUE A- "SINGLE 
 ;■ ' ' ■; •'. ONE. ■ ^ * 
 
 We haves'een, that uAdei: -ihe Ac^of Simplificat,ipn any 
 number of causes of action maybe, sited on 'fin the same 
 action. We have also seenj that the Defendant ma^y ^^lead 
 any number of defences 'to the declaration or* any subse- 
 quent pleading of the Plaintiff"; and'that the "Plaintiff may 
 plead in answer to the plea or any subsequent pleading of 
 the Defendant, as many several matters as he may deem 
 necessary. Yet there is a rule, that pleadings must not be 
 double ; and the object of the rule is defined to be, the 
 avoidance of several issues. Now, it is manifest, that if several 
 causes of action be sued on in the same action, and several 
 pleas be pleaded, that several issues will necessarily be 
 formed. It therefore behooves us, to explain the meaning 
 of the Pule against duplicity or doubleness in pleading. 
 
 The rule applies both to the declaration and sul3sequent 
 pleadings. Its meaning, with respect to the declaration, is 
 that it must not, in support of a single demand, allege several 
 distinct matters, by any one of which the demand is suffi- 
 ciently supported. As, where the Plaintiff declared in an 
 action, that the Defendant was indebted to him in a certain 
 sum, for nourishing one E. L. at the request of the Defend- 
 ant, which the Defendant promised to pay ; and also, that 
 the Defendant promised to pay so much as he reasonably 
 deserved to have, for nourishing the said E. L. during the 
 same time. This declaration is bad for duplicity ; for there 
 are two promises, one to pay a certain sum, and the (jther
 
 .134 RULES OF TLEADING. 
 
 to pay a quantum meruit, cither of wliicli will support tlie 
 demand of the Plaintifl". 
 
 "With respect to the pleadings subsequent to the declara- 
 tion, the meaning of the rule is, that none of them must 
 contain several distinct answers to that which preceded it. 
 Duplicity in a plea may be thus exemplified. In an action 
 for breaking a close, and depasturing the herbage with 
 cattle, if the Defendant pleads that A. had a right of com- 
 mon, and B. also a right of common in the close, and that 
 the Defendant, as their servant, and by their command 
 entered and turned in the cattle in exercise of their rights 
 of common, the plea is bad for duplicity, because the title 
 of either one or other of the commoners, and the authority 
 derived as his servant, would have alone constituted a suf- 
 ficient answer to the declaration. Of duplicity in the 
 rejilication the following is an instance : The Plaintiff de- 
 clared for breaking and entering his stable, cutting asunder 
 a beam, and throwing down the tiles of the roof. The 
 Defendant justified as the servant of H. G., and pleaded 
 that H. G. was seised of a wall, in. his demesne of fee, and 
 because the beam was placed in the wall of the said H. G. 
 without his consent, the Defendant, as his servant, in order 
 to remove this nuisance, did enter the stable, and cut the 
 beam as near to the wall as he could, doing as little damage 
 as possible, and thereby the tiles w^ere thrown down. The 
 Plaintiff replied, traversing that the wall was 11. G.'s ; and 
 then further pleaded, that the Defendant, of his own wrong, 
 did throw down the tiles, for the cutting the beam aforesaid. 
 This Eeplication is bad for duplicity, because, as the first 
 traverse is a complete answer, the second makes the Eepli- 
 cation double. 
 
 The rule, in its terms, points to douhleness only ; as if it 
 prohibited only the use of two allegations and answers : but 
 its meaning extends to the case of more than two ; because 
 if two will produce the evil of several issues, three or more 
 will aggravate the evil.
 
 RULES OF PLEADING. 135 
 
 The object of tlie rule against duplicity, being to enforce 
 a single issue upon a single subject of claim, admits several 
 issues wliere the claims are distinct. The declaration there- 
 fore may, in support of several demands, allege as many dis- 
 tinct matters as are respectively applicable to each. So the 
 plea, though it must not contain several answers to the whole 
 of the declaration may nevertheless make distinct answers 
 to sucb facts of it as relate to different matters of claim or 
 complaint. Thus, in the example which I have given of 
 duplicity in a plea, if the case be a little varied, and the 
 Defendant, being charged with putting five beasts on the 
 common, pleads that A. and B. had respectively rights of 
 common there, and that he, as the servant of A. put in two 
 of the beasts in respect o^his common right, and, as the ser- 
 vant of B. put in three, in respect of las common right, there 
 would no longer be duplicity ; for he pleads the several 
 titles, not as several answers to the same subject of claim or 
 complaint, but as distinct answers to different matters of 
 complaint arising in respect of different cattle. So in the re- 
 plication and other subsequent pleadings. Thus, if an action 
 be brought for trespasses in closes A. and B. and the De- 
 fendant pleads a single matter of defence applying to both 
 closes, the Plaintifl:" may in his replication, give one answer 
 as to so much of the plea as applies to close A. and another 
 answer as to so much of the plea as applies to close B. But 
 neither of the matters thus alleged in answer to such parts 
 of the declaration, as relate to different claims must be such 
 as would alone be a sufficient answer to the whole declara- 
 tion. Thus, if an action be brought on two promissory 
 notes, the Defendant may plead as to one, payment, and as 
 to the other, duress, yet if he pleads as to one, a release of 
 all actions, and as to the other, duress, it will be double ; for 
 the release alone is a sufficient answer to both notes. 
 
 If there be several Defendants, the rule against duplicity 
 does not compel each of them to make the same answer to 
 the declaration. Each is at liberty to plead such plea as be
 
 136 RULES OF PLEADING. 
 
 may tliink proper for liis own defence ; and tliey may either 
 join in the same plea or sever, at their discretion. But if 
 the Defendants have once united in the plea, they cannot 
 afterwards sever at the rejoinder or other subsequent plead- 
 ing. 
 
 Where in respect either, of several subjects, or of several 
 Defendants, a severance has thus taken place in the plead- 
 ing, this may of course lead to a corresponding severance in 
 the whole subsequent series; and, finally, to the production 
 of several issues. And where there are several issues, they 
 may respectively be decided in favor of different parties ; 
 and the judgment will follow the same division. 
 
 A pleading subsequent to the declaration will be double 
 that contains several answers, whether they be of the same 
 kind or not. Thus, if it contains several matters in ahate- 
 ment^ or several matters in har; or one matter in abatement and 
 another in bar, it will be double. Or by containing several 
 matters in confession and avoidance, or several matters by way 
 of traverse; or by combining a traverse Avith a matter in con- 
 fession and avoidance, it will be rendered double. But a 
 matter, will not make a pleading double, that is pleaded only 
 as a necessary inducement to another allegation, though the 
 matter of inducement, if pleaded as an answer; would be of 
 itself a good defence. 
 
 The Rule against duplicity being therefore, to enforce a 
 single issue upon a single subject of claim, but admitting 
 several issues upon several distinct subjects of claim, it is 
 necessary to explain the mode of pleading, where several 
 distinct subjects of claim are joined in the same action. 
 
 Under the old system of pleading, where several causes of 
 action were joined in the same suit, it was necessary to use 
 what were called, several counts in the declaration. These 
 several counts were different sections of the declaration, each 
 containing a formal statement of a separate cause of action, 
 and each constituting a good declaration by itself, so that if 
 the Plaintiff sustained himself upon either count he would
 
 RULES OF PLEADING. 137 
 
 be entitled to judgment upon the cause of action set forth in 
 it, thougli he failed as to tlie others. 
 
 This use of several counts, when applied to distinct causes 
 of action, is entirely consistent with the rule against dupli- 
 city, as the object of that rule, as we have seen, is to prevefit 
 several issues in respect of one demand only ; and not to 
 prevent several issues where there are several demands. 
 But a practice grew up, at a very early period in England, 
 and it was legitimated in Maryland, of allowing several 
 counts, where there were really not distinct claims ; but the 
 several counts were only so many different modes of stating 
 the same cause of action. This took place, when the pleader, 
 in drawing his declaration, having set forth his case in one 
 view, is doubtful whether, as so stated, it may not be insuf- 
 ficient in law, or incapable of proof in point of flict ; and at 
 the same time perceives another mode of statement, by which 
 his difficulty may perhaps be avoided. He therefore, inserts 
 the second form of statement in the shape of a second count, 
 in the same manner as if he were proceeding for a separate 
 cause of action ; and if he saw a still further mode of allega- 
 tion that might be available, he added other counts ; thus 
 giving, in practice, a great variety of counts in respect of 
 the same cause of action. Thus where a person has ordered 
 goods of another, and an action is brought against him for 
 the price, the circumstances maybe such as to raise a doubt 
 whether the transaction ought to be described as one of 
 goods sold and delivered or of ivork and lahor done. In this 
 case two counts, would be used, setting forth the claim both 
 ways ; in order to secure a verdict, at all events, upon one of 
 them. Whether, however, the subjects of the several counts 
 were really distinct or identical, they must always pwyort to 
 be founded on distinct causes of action ; and this was indi- 
 cated, by inserting in each count after the first, such words 
 as "other," "the farther sum," all indicating a separateness 
 and difi'erence. 
 
 The Defendant on his part could demur to the whole de- 
 claration, or plead a single plea to the whole ; or demur to
 
 138 RULES OF TLEADING. 
 
 one couut, and plead to another ; or plead a several plea to 
 each count, or several pleas to distinct parts of the same 
 count; and, by the Statute of Anne, several pleas to the 
 whole declaration or to each count ; for the Defendant may- 
 have several distinct answers to give to the same claim or 
 cause of action. And as the Plaintiff, in the case of several 
 counts found it convenient to vary the mode of stating the 
 same subject of claim, so the Defendant, under the form of 
 pleading distinct matters of defence, stated variously, in va- 
 rious pleas, the same defence ; either by presenting it in an 
 entirely new view, or by omitting merely, in one plea, some 
 circujustances i^lleged in another. But the several defences 
 must each be pleaded as a oiew or further plea, with a formal 
 commencement and conclusion as such ; so that it would be 
 improper to incorporate several matters in ojie j^lea. 
 
 When several pleas are pleaded, either to different mat- 
 ters, or to the same matter, the Plaintiff may, according to 
 the nature of his case, either demur to the whole, or demur 
 to one plea and reply to another, or make a several replica- 
 tion to each plea, or, by the 89th section of the Act of Sim- 
 plification, make several replications to each plea; and in 
 the three last cases the result may be a corresponding sev- 
 erance in the subsequent pleadings, and the production of 
 several issues. But whether one or more issues be produced 
 if the decision, whether in law or fact, be in the Defendant's 
 favor, he is entitled to judgment in respect of that subject 
 of demand or complaint, to which the successful plea re- 
 lates ; and, if it were pleaded to the whole Declaration, to 
 judgment generally, though the Plaintiff should succeed as 
 to the other pleas. 
 
 The Act of Simplification has the two following sections 
 in respect of singleness in pleading : 
 
 12-i. "Any number of facts constituting one cause of 
 action, or one defence, or one reply, or au}'- other pleading, 
 may be combined ; but each cause of action, and each de-
 
 KULES OF PLEADING. 139 
 
 fence, and eacli reply, sliall be stated in a separate paragraph, 
 and shall be numbered. 
 
 125. " If each cause of action, or each defence, or each 
 reply, or other pleading shall not be stated in a separate 
 paragraph, and numbered, the Court, or the Judge, at any 
 time after such pleading is filed, and before it is pleaded to, 
 may, upon suggestion in writing, filed in the cause, stating 
 such defect in the pleading, and a copy of the suggestion 
 being served upon the party so pleading defectively, or his 
 attorney, order the defective pleading to be corrected at the 
 costs of the party so pleading defectively. But if the oppo- 
 site party plead to such defective pleading, such formal defect 
 shall thereby be cured." 
 
 These sections, it is obvious, no not change, in any mate- 
 rial point, the rule against duplicity. The docti-ines which 
 I have stated in exposition of that rule, are still applicable 
 under the simplified system of pleading. The only change 
 effected by these sections is in the mode or form of pleading ; 
 and in the mode or form of correcting the defect of duplicity. 
 Under the old system, each cause of action must be stated in 
 a separate count, and every defence in a separate plea with 
 a formal commencement and conclusion. Under the sim- 
 plified pleading, it is only necessary to state in a separate 
 paragraph, and to number each cause of action, and each 
 plea ; and this paragraphing and numbering will sufllciently 
 designate them as separate and distinct. And the same cause 
 of action, or the same defence, or the same reply, may be 
 stated in various ways ; and if, in separate paragraphs and 
 numbered, will be as separate and distinct, as thoy would 
 have been under the old system, if stated in separate counts 
 and pleas in due technical form. 
 
 Tlic defect of du[)licity, or not ])aragraphing and nvnn- 
 bcring the causes of action or dcl'cnccs, is, under tlic last of 
 these sections, to be corrected upon suggestion in the nature
 
 140 RULES OF TLEADING. 
 
 of a motion ; whereas, it "was corrected upon special demur- 
 rer under the old system. But, if the opposite party plead 
 to such defective pleading, the defect is thereby cured, just 
 as it was under the old system. 
 
 I have now passed, in review, all the rules for construct- 
 ing the Simplified Pleadings. All these rules conduce to 
 form pleadings which end in single issues involving the 
 merits of causes of litigation. 
 
 OF JUDGMENT. 
 
 It is the duty of the Court, upon a point of law being 
 raised by demurrer, to give the proper judgment. So, upon 
 the facts being found by a verdict or shown in any other 
 legal mode, the Court is bound to pronounce the proper 
 judgment. The judgment is entered in such form as is 
 legally appropriate to the particular case. Under the old 
 system of pleading, there was one form for entering the 
 judgment in debt on a sealed instrument, and a different form 
 for a judgment in case on a note not under seal. But as the 
 Act of Simplification, as we have seen, has abolished all 
 forms of action, so that debt and damage may be sued for in 
 the same action, and joined in the same declaration, the Act 
 further authorises that, when a Plaintiff recovers a sum of 
 money, the amount shall be awarded- to him without any 
 distinction between debt and damage. The two sections of 
 the Act, on the subject, are as follows : 
 
 126. "In all actions where the Plaintiff recovers a sum of 
 money, the amount to which he is entitled may be awarded 
 to him by the judgment generally, without any distinction 
 being therein made as to whether such sum is recovered by 
 way of debt or damages. 
 
 127. "The form of all judgments shall be merely a state
 
 RULES OF PLEADING. 141 
 
 ment, in common language, of tlie award of tlio Court, 
 without regard to the forms of action heretofore existing." 
 
 JUDGMENT NON OBSTANTE VEREDICTO. 
 
 Tliough a judgment against a verdict can hardly ever be 
 req-uired, jet the Act of Simphiication has prescribed the 
 condition on which such a judgment can be rendered. The 
 Plaintiff" in a case coming within the condition of the section 
 of the Act would move for a judgment, to be given to him, 
 without regard to the verdict obtained by the Defendant. The 
 section of the Act is as follows : 
 
 128. " Whenever the plea is such as to show to the Court 
 that the Defendant is not entitled to judgment upon the 
 merits, and the issue thereon be found for the Defendant, 
 judgment shall be given for the Plaintiff", non obstante vere- 
 dicto.''^ 
 
 EEPLEADER. 
 
 Where the unsuccessful party, on examination of the 
 pleadings, conceives that the issue joined was not taken on 
 a point proper to decide the action, the practice, though of 
 rare occurrence, is to move for a repleader. Either of the 
 parties may, from misapprehension of law, or oversight, 
 have passed over without demurrer, a statement on the other 
 side immaterial and insufficient in law ; and an issue in fact 
 may have been ultimately joined on such immaterial state- 
 ment, and so the issue will be immaterial, though the parties 
 have made it the point in dispute between them. In such 
 cases, therefore, the Court, not knowing for whom to give 
 judgment, will award a repleader^ thereby ordering the parties 
 to plead de novo, for the purpose of obtaining a better issue. 
 (Sec 7th Ilarr. k John. p. 272.) The Act of Simplification 
 has prescribed the following section in regard to i\'pleader :
 
 142 RULES OF TLEADING. 
 
 129. " Whenever the issue, joined and tried, shall be an 
 immaterial one, the Court shall award a repleader ; and the 
 parties shall begin to replead at the first fault which pro- 
 duced the immaterial issue. And the pleadings in such 
 case, shall be in the forms hereinbefore prescribed for plead- 
 ino-s in general, and shall be substituted for the defective 
 pleadings." 
 
 ABATEMENT. 
 
 I have heretofore directed attention to pleas in bar, as 
 they are called, which are substantial and conclusive answers 
 to the action. They either deny, as I have shown, all or 
 some essenticil part of the averments of the declaration, or, 
 admitting them to be true, allege new facts which obviate or 
 repel their legal effect. 
 
 There is a class of pleas called dilatory pleas. They are 
 either to the jurisdiction of the Court ; or in suspension of 
 the action ; or in abatement of the writ. A plea to the 
 jurisdiction of the Court, shows that another Court has 
 jurisdiction of the matter, and'charges that the present one 
 has not. A plea in suspension of the action, shows some 
 ground for not proceeding, at present, with the action. A 
 plea in abatement shows some ground for abating or quash- 
 ing the writ. 
 
 These pleas are pleaded before pleas in bar, in the order . 
 of practice : but they so seldom occur, that they are post- 
 poned to this later consideration. Of pleas to the jurisdic- 
 tion of the Court, and pleas in suspension of the action, I 
 shall say nothing ; they are so rare in practice, as not to fall 
 within the purpose of this treatise. 
 
 Pleas in abatement relate cither to the person of the 
 Plaintiff or Defendant, showing some personal disability to 
 sue or to be sued ; or to the want, showing, for example, that 
 in an action on a joint contract, all the joint contractors are 
 not named as Defendants, but that one or more is omitted.
 
 RULES OF PLEADING. 143 
 
 Under tlie old system of pleading, tlie commencement and 
 conclusion of a plea were always in sucli form as to indicate 
 whether it was designed as a dilatory plea or a plea in bar. 
 And if matter which goes in bar were pleaded, with a com- 
 mencement and conclusion in abatement, it was a plea in 
 abatement ; but if it only concluded in abatement, it was a 
 plea in bar. If a plea, containing matter in ahatement, con- 
 cluded in bar, it was a plea in bar. And if a plea, begin- 
 ning in bar, contained matter in abatement, and concluded in 
 abatement, it was a plea in 5a?-. 
 
 There was, too, difficulty in determining when a plea in 
 abatement should only conclude with a prayer of judgment, 
 and when it should both commence and conclude with a 
 prayer of judgment; and also when the prayer of judgment 
 should be of the writ only ; and when of the writ and the 
 declaration. At least, such is the state of the authorities. 
 The Act of Simplification has endeavored to remedy these 
 and other difficulties in pleas in abatement, by the following 
 sections : 
 
 130. " It shall not be necessary to use any prayer of judg- 
 ment in any plea in abatement. Xor shall it be necessary, 
 in any plea in abatement,^ to crave oyer of any instrument 
 of writing on which the suit is brought, nor to insert it in 
 the plea. 
 
 131. "No formal defence, and no formal conclusion, shall 
 be required in pleas in abatement. They shall commence 
 in the form hereinbefore prescribed for pleas in bar, or to 
 the like effect. 
 
 132. "In a plea in abatement for the non-joinder of a co- 
 Dcfcndant or co-Defendants, it shall be necessary to allege, 
 and to prove, that the persons mentioned as not joined are 
 still living, and are residing in the county in which the suit 
 is brought, or the City of Baltimore, if the suit be brought 
 there.
 
 1-1:4 RULES OF PLEADING. 
 
 133. " All defects in pleas in abatement shall be cor- 
 rected, upon motion, as in other pleadings under this code." 
 
 It is necessary that a plea in al)atement correct the mis- 
 take of the Plaintiff, so as to enable him to avoid the same 
 objection in bringing a new suit. 
 
 The power of pleading several matters does not extend to 
 dilatory pleas. 
 
 MOTIONS. 
 
 As demurrer, for mere formal, defects in a pleading, has 
 been abolished, the motion has been substituted as a more 
 summary mode of reaching any formal defects wliich may 
 appear in the simplified pleadings. The motion has been 
 always a mean for drawing the attention of the Court to 
 certain defects in pleadings, which the Court would have 
 rectified in a summary way. " In some cases the Courts 
 will, on motion, order superfluous matter to be struck out 
 of the pleadings, and if there be any vexation, will make 
 the party inserting it pay the costs of the application," 
 (1st Chit. Plead. 211.) To this e:!itent did the Courts act, in 
 rectifying defects in the old pleadings, upon motion. The 
 Simplifying Act has therefore only enlarged the power of 
 the Court, in rectifying pleadings upon motion. I have 
 passed in review all the provisions indicating the motion as 
 the proper mode of calling the attention of the Court to 
 the different defects specified in the provisions. It only 
 therefore remains, to call attention to the provision of the 
 Simplifying Act which prescribes the rule in regard to 
 motions. It is as follows : 
 
 134. "Every motion required by this code shall be in 
 writing, and shall assign reasons ; but no particular form 
 shall be necessary."
 
 RULES OF PLEADING. 115 
 
 GENERAL PROVISIONAL RULES. 
 
 As it is impossible to foreknow all tlie possible exigencies 
 of administrative justice, rules cannot be prescribed for all 
 cases tliat may arise in practice. So, in reforming an old 
 system of rules, the reform can liardly be so complete as to 
 embrace every needed change ; therefore the Simplifying 
 Act has prescribed two sections : by the first of which, the 
 simplification may be extended by the Courts, upon the 
 analogies of the changes made, to matters that may not 
 have been simplified ; and by the second, the laws and 
 usages of the State relating to pleading and practice, that 
 are not in antagonism to the Simplification, and can aid its 
 provisions, are expressly continued in force. The provisions 
 are as follows : 
 
 135. "Any matter of pleading, which shall not come 
 within the special provisions of this code, and for which 
 there is not now some rule, which does not .conflict with the 
 principles and rules of this code, shall be provided for upon 
 the analogies of the provRions Avhich seem to bear most 
 upon the matter; and of this the Court shall judge, when- 
 ever any such pleadings shall have been framed in a cause, 
 and the question is raised by motion. And if the Court 
 shall determine such pleading to be erroneously framed, it 
 shall have it corrected ; and in such case the costs of the 
 amendment shall be in the discretion of the Court. 
 
 136. " All laAVS, so for as they are inconsistent with the 
 provisions of this code, are hereby repealed. The laws and 
 usages of this State, relating to pleading, practice and pro- 
 ceedings in civil actions, so far as they arc not inconsistent 
 with the provisions of this code, and as far as the same may 
 operate in aid of those provisions, or to supply some omitted 
 
 case, arc hereby continued in force." 
 
 10
 
 146 RULES OF TLEADING. 
 
 By the first of these sections, it will be observed, that the 
 mode by which the analogies of the simplified pleadings 
 shall be made the basis for change in any matter which may 
 happen not to be simplified, is by the pleading being framed 
 for some case in actual practice, and the propriety of the 
 pleading, excepted to, and brought to the consideration of 
 the Court for its adjudication. In many of the attempts at 
 reform, in other countries, the judges have been empowered 
 to make changes, at their discretion, in furtherance of those 
 begun by the legislature. This has proved to be an imprac- 
 ticable mode of reform. The provision of the Act of Sim- 
 plification seems to be more efl&cient, and at the same time 
 entirely conservative of the spirit of the simplification which 
 has been effected by the Act itself 
 
 It is by the last of these two sections that I felt author- 
 ized to incorporate, in this treatise, the great body of the 
 elementar}^ doctrines, and the rules of pleading, as long 
 practised in this State, with the provisions of the Act of 
 Simplification. These provisions assume the existence of 
 the very doctrines and rules which I have expounded and 
 illustrated. The treatise, therefore, however imperfectly 
 executed, is a consistent whole, and expressly declared 
 legitimate by the hundred and *thirty-sixth section of the 
 Simplifying Act, which I have given as the closing section 
 of this chapter of my treatise.
 
 FORMS OF PLEADINGS. 147 
 
 CHAPTEE III. 
 
 FORMS OF PLEADIXGS. 
 
 The Eiiles of Pleading, as I have sliown, require the 
 question in controversy to be developed in a specific shape : 
 but the degree of specification required, no rule can desig- 
 nate, except in a general way. Hence, established forms, 
 for boih the Plaintiff's and Defendant's pleadings, are the 
 best guides to the pleader ; as they furnish examples of the 
 requisite degree of specification. If, for example, it be said 
 that, the declaration must state every thing that is of the essence 
 of the cause of action^ and that is of the essence of the cause of 
 action^ without whicJi^ judgment cannot he given, (6 Harr. and 
 John. 53,) it gives but obscurely, the substance of the decla- 
 ration required in a given case, in comparison with the 
 form of the declaration established for-the case. S(5, when 
 it is said, of the pleadings subsequent to the declaration, each 
 must he an answer to the ichole of what is adversely alleged^ we 
 do not apprehend the meaning of the rule as clearly as when 
 we see it embodied in the forms of the various pleadings to 
 which it is applicable. The Act of Simplification, therefore, 
 has prescribed forms of the most usual pleadings constructed 
 according to the rules which I have expounded. And in 
 order to supply the deficiency of the Act in this respect, I 
 have added other forms constructed according to the require- 
 ments of the Act, and justified, as we shall see, by the hun- 
 dredth and thirty-seventh section of the Act, as equally 
 legitimate as those contained in the Act itself, if they conform 
 to the requirements of the Act. 
 
 In all actions, which can arise under the simplified pro- 
 cedure, it is necessary to file a "^declaration : even a confes- 
 
 * There arc three classes of cases, iu which it is not uecessary to file
 
 148 FORMS OF PLEADINGS. 
 
 sion of judgment will not cure the omission. (3 Ilarr. & 
 McIIen. 389; lb. 408; 4 Harr. & McHen. 351.) 
 
 Under the old system of pleading, the form of the decla- 
 ration was determined by the form of the original writ. But 
 under the new system of pleading, only the writs of replevin 
 and of ejectment, determine the form of the declaration. 
 The writ of summons does not at all influence the form of 
 the declaration. This wTit applies to all cases except to 
 replevin and ejectment. Therefore, if a summons be issued, 
 a declaration for any cause of action, except those for which 
 replevin and ejectment are the prescribed remedies, may be 
 filed ; and when the declaration is filed, if it does not meet 
 the case of the Plaintiff, it may be amended so as to embrace 
 any of the various causes of action for which assumpsit, case, 
 covenant, debt or dower might under the old system of 
 pleading be brought. Under the old system of pleading, as 
 the form of the original writ was the same in assumpsit and 
 case, the declaration could be amended from one of these 
 actions to the other ; though the one be for a breach of con- 
 tract, and the other for a wrong independent of contract. 
 (1 Hafr. & John. 297.) But, as under the old system, a 
 count on contract, and one on a wrong, as assumpsit and 
 trover^ could not be joined, the declaration could only be 
 amended from one of these cases to the other, by a substitution 
 of one count for the other. But, as now all causes of action, 
 with the exception of those for which replevin and ejectment 
 are the prescribed remedies, can be joined, and coimts for all 
 can be stated together, a declaration can always be amended 
 by merely adding the necessary count or counts. If^ for 
 instance, the cause of action alleged be only the non-payment 
 of a promissory note, and it should turn out that the cause 
 of action was the non-payment of a single bill, or a breach 
 
 a declaration: — 1. Scire Facias; 2. Attachment, 4 Harr. Sc Joliu. 
 18.5 ; 3. Where a case is referred to arbitrators, and an award made, 
 and judgment on the award, 3 Harr. & McHen. 388. But the pro- 
 cedure of the cases is not embraced in the Act of Simplification : nor 
 consequently in this treatise.
 
 FORMS OF PLEADINGS. 149 
 
 of covenant, or any otlier on contract or not on contract, the 
 declaration can be changed so as to meet the case, hj adding 
 the proper cause of action or count, as the causes of action 
 might have been at first joined in the declaration. Ilence is 
 manifest the comprehensiveness, and flexibility and minute- 
 ness of application, of the simplified pleading. 
 
 If a writ of replevin or of ejectment be issued, the decla- 
 ration cannot be amended to any other case ; because these 
 actions are for the specific recovery of personal and real 
 property, and can never be unintentionally misapplied by a 
 Plaintiff, and therefore should be inflexibly fixed to one 
 cause of action. 
 
 Under the simplified pleading there are two classes of de- 
 clarations or counts — the one general^ the other special. The 
 same classification of counts existed under the old system of 
 pleading. "We have seen, that it was a rule of the ancient 
 system of pleading, that pleadings must specify quality^ 
 quantity and value, thereby rendering the declaration or 
 count special. But this rule never applied to the action of 
 debt for goods sold or for work and labour, &c. ; a more 
 general form of declaration having been always allowed in 
 this action. In the latter part of the seventeenth century, 
 there grew into practice counts, called indelitatus assumpsit, 
 framed upon the model of the declaration in debt on simple 
 contract, in which the quality, quantity or value of the goods 
 sold is never specified. This form of count was gradually 
 extended to all cases of a mere money demand, founded 
 upon simple contract, either express or implied. These 
 couifts became of such frequent use, that they acquired the 
 name of common counts. The Act of Simplification has 
 retained these common or general counts in all their ancient 
 significance ; but has simplified the declaration, by prohibit- 
 iug the statement of a promise as Avas done in the old decla- 
 ration when in fact there was none ; and has substituted a 
 new plea in the place of the general issue, non assumpsit ; as 
 has been already shown. 
 
 The first twelve statements of causes of action contained
 
 150 FORMS OF PLEADINGS. 
 
 in tlic Act of Simplification, are tliese general counts in a 
 simplified form. Tliese twelve counts, as will be seen, state 
 tlie causes of action in tlie same form of beginning, " for 
 
 money payable by to for." When a set form 
 
 of words will express a general idea in respect of many dif- 
 ferent causes of action, it is expedient to employ it as a com- 
 mon form. It allows tlie declaration to be put into a more 
 simple and succinct form ; especially when several different 
 causes of action or counts are joined in the same declaration. 
 It will be observed, that all the twelve causes of action or 
 counts can be joined in the same declaration, by employing 
 the set form of words in the statement of the first cause of 
 action or count only. In such a form the declaration is 
 more easily scanned and vinderstood, than when a different 
 set of words are employed, to denote the indebtedness or 
 liability, in stating each cause of action. 
 
 But as great as the advantage of using this set of words 
 is, in frximing and also in understanding the declaration, a 
 still greater advantage is gained, by being thereby enabled 
 to frame a plea in one general form which will answer all 
 the twelve causes of action, and as many more of the same 
 kind as may be joined in the declaration. By this form of 
 the declaration, the first plea in the Act of Simplification, 
 " That he never was indebted as alleged," answers all the 
 twelve causes of action distinctly, by a direct denial ; and in 
 entire conformity to the principles and rules relative to the 
 direct traverse heretofore expounded. The direct traverse 
 imports a denial in the words of the allegation traversed ; 
 and in order to avoid prolixity, it is sometimes better ]?ot to 
 deny in the words of the allegation traversed. The plea 
 under consideration is an instance of the kind ; and it can be 
 used, without the least danger of giving it the generality of 
 the general issue in debt on simple contract, nil debit. The 
 general issue, nil debit, involves a double construction, that 
 he never oived the debt, or, that he has jpaid it. Thus, by this 
 general issue, the distinction between a traverse and a con- 
 fession and avoidance was abrogated. For nil debit (does
 
 FORMS OF PLEADINGS. 151 
 
 not oive,) is adapted to any kind of defence that tends to 
 deny an existing debt. Therefore, not only a defence deny- 
 ing an original indebtedness, but the defences of release, 
 satisfaction, arbitrament and many others are applicable to 
 such a plea. But the plea under consideration does not 
 admit of a double construction. It throws the defence back 
 to the original indebtedness ; and consequently, neither pay- 
 ment, nor any thing in confession and avoidance, can be 
 given in evidence under the issue formed by it. The denial 
 is, in such a form, as not to let in testimony of matters sub- 
 sequent to the original indebtedness. 
 
 But while the plea narrows the issue, and preserves the 
 distinction between a traverse and a confession and avoid- 
 ance, the statement of the causes of action in these general 
 counts have just the same import they had in the indebitatus 
 assumpsit counts. All causes of action remain as they were 
 before the Simplification ; and the simplified statements of 
 them have the same legal import. The counts, for money 
 lent; for money paid ; for nnoney had and received; and for 
 money found due on accounts stated^ have just the same scope 
 and are sustained by just the same proofs, as under the old 
 system of pleading. These counts, and the proofs of them, 
 have been so established in judicial construction ; and the 
 one, for money had and received, imports in law so much more 
 than the words literally express, that it would have pro- 
 duced great confusion if an attempt had been made to 
 change their established significance. These four counts, 
 therefore, with the new plea adapted to them, can be used 
 in e-wery instance where they were applicable, under the old 
 system of pleading, in their form of indebitatus assumpsit. 
 And though the new general plea excludes much evidence 
 which could have been adduced by the Defendant, under 
 the plea of non assiimpsit, and also the evidence which the 
 Plaintiff could adduce to rebut it : yet the evidence in sup- 
 port of the causes of action are not at all changed. Under 
 these counts, for, instance, a promissory note may be given 
 in evidence, as between drawer and payee, or endorser
 
 152 FORMS OF PLEADINGS. 
 
 and liis immediate endorsee, (7 Ilarr. & Johns. 32 ; 4 Harr. 
 k Johns. 535, 336 ;) and this, even wlien it is the note of a 
 firm of which the Defendant is a partner. (2 Harr. & G ill, 
 274.) And under the connt for money had and received, 
 the Plaintiff can recover wherever the Defendant, npon the 
 circumstances of the case, ought, by the ties of natural jus- 
 tice and equity, to refund or not to retain the money. (2 
 Burr. E. 1012 ; 1 Chit. Plea. 305-8.) So, under the count 
 on an account stated, the Plaintiff can recover wherever a 
 certain and precise sum is admitted to be due, though it 
 should relate to only one item or transaction. (1 Chit. Plea. 
 308.) 
 
 It will be observed that all the statements of causes of 
 action founded on contract, except the first twelve, con- 
 tained in the Act of Simplification, are special. And it is 
 more in accordance with the spirit of special pleading, and 
 particularly of the simplified system, that the declaration or 
 count should be special. But, then, no system of special 
 pleading would be so fully adequate to the exigencies of 
 judicial procedure, without these general counts to be used 
 as a reserve in a declaration, in case of failure upon the 
 more special ones. They are, however, illegal in some 
 cases. And to use them, to the exclusion of the special 
 counts, would, too, even where they are legitimate, be often 
 found inexpedient. They can, hoAvever, of course, be used 
 eitlifer alone or together, with special counts in a declara- 
 tion in the class of cases to Avhich they are appropriate. 
 
 The distinction of General and Special Counts does not 
 obtain in actions for wrongs independent of contract ^ but 
 the declaration for such injuries is always special ; as will 
 be seen by the Forms in the Act of Simplification. 
 
 I will now give the Forms of Pleadings as they are pre- 
 sented in the Act of Simplification. They are introduced 
 by a section of the law, which enacts that the pleader shall 
 not be bound inflexibly to the letter of the Forms, but that 
 the letter may be departed from if the spirit of simplicity be 
 preserved. The section is as follows :
 
 FORMS OF PLEADINGS. 153 
 
 137. " The Forms of Pleading wliicli follow sliall be suffi- 
 cient; and those and the like Forms may be used, with 
 such modifications as may be necessary to meet the facts of 
 the case ; but nothing herein contained shall render it erro- 
 neous or irregular to depart from the letter of such Forms, 
 so long as substance is expressed without prolixity. 
 
 COMME]S"CEMENTS OF DECLARATIONS. 
 
 Venue. " A. B., by S. T., his attorney, {or in Person, as 
 tJie case may he,) sues C. D., for (here state the cause of action.''^) 
 
 Conclusions of Declarations. 
 
 " And the Plaintiff claims $ — [or if the action is brought 
 to recover specific goods) the Plaintiff claims a return of the 
 said goods or their value, and $ — , for their detention." 
 
 STATEMENT OF CAUSES OF ACTION ON CON- 
 TEACTS. 
 
 I. Money payable by the Defendant to the plaintiff for 
 {tliese icords: '''■Money ijayahle, c&c," should precede Money 
 counts, like I. to XII. inclusive, hut need only he inserted in 
 the first,) goods bargained and sold by the Plaintiff to the 
 Defendant. 
 
 II. "Work done and materials provided by the Plaintiff 
 for -ilie Defendant at -his request. 
 
 III. Money lent by the Plaintiff to the Defendant. 
 
 IV. Money paid by the Plaintiff for the Defendant, at 
 his request, 
 
 V. Money received by the Delcndant for the use of the 
 Plaintiff.
 
 154 FORMS OF PLEADINGS. 
 
 VI. Money found to be due from the Defendant to the 
 Plaintiff on accounts stated between tliem. 
 
 VII. A messuage and lands sold and conveyed by the 
 Plaintiff to the Defendant. 
 
 YIII. The good will of a business of the Plaintiff, sold 
 and given up by the Plaintiff to the Defendant. 
 
 IX. The Defendant's use by the Plaintiff''s permission, of 
 messuages and lands of the Plaintiff. 
 
 X. The hire of [as the case may he,) by the Plaintiff let to 
 hire to the Defendant. 
 
 XI. Freight for the conveyance by the Plaintiff for the 
 Defendant at his request of goods in ships. 
 
 XII. The Demurrage of a ship of the Plaintiff kept on 
 Demurrage by the Defendant. 
 
 XIII. That the Defendant on the — day of , by 
 
 his Promissory Note, now over-due, promised to pay to the 
 
 Plaintiff $ , sixty days after date, but did not pay the 
 
 same. 
 
 XIY. That one A. on, &c., (Date,) by his Promissory Note, 
 now over-due, promised to pay to the Defendant, or order, 
 
 S , sixty days after date ; and the Defendant endorsed 
 
 the same to the Plaintiff; and the said note was duly pre- 
 sented for payment, and was dishonored, whereof the De- 
 fendant had due notice, but did not pay the same. 
 
 XV. That the Plaintiff, on, &c., {Date,) by his Bill of Ex- 
 change, now over-due, directed to the Defendant, required 
 
 the Defendant to pay the Plaintiff" § , sixty days after 
 
 date ; and the Defendant accepted the said Bill, but did not 
 pay the same.
 
 FORMS OF PLEADINGS. 155 
 
 XVI. That the Defendant, on &c., {date) by his bill of 
 exchange directed to A., reqnired A. to pay to the Plaintiff 
 $ — sixty days after date, and the said bill was duly pre- 
 sented for acceptance, and was dishonored, of which the De- 
 fendant had due notice, but did not pay the same. 
 
 '"That the Defendant, on &c., (date,) by his bill of ex- 
 change directed to A., required A. to pay to one H. or order 
 S — sixty days after date; and the said H. endorsed the same 
 to the Plaintiff; and the said bill was duly presented for ac- 
 ceptance, and was dishonored, of which the Defendant had 
 due notice, but did not pay the same. 
 
 That the Defendant, on the day of by his single 
 
 bill did promise to pay to the Plaintiff $ — months after 
 date ; but did not pay the same. 
 
 That the Defendant on the day of by his single 
 
 bill, bound himself to pay to the Plaintiff the sum of § — as 
 
 follows : — The sum of $ — on the day of ; and the 
 
 further sum of % — on the day of ; but did not pay 
 
 the same. 
 
 XYII. That the Plaintiff and Defendant agreed to marry 
 one another, and a reasonable time for such marriage has 
 elapsed, and the Plaintiff has always been ready and willing 
 to marry the Defendant, yet the Defendant has neglected and 
 refused to marry the Plaintiff'. 
 
 XYIII. That the Plaintiff' and Defendant agreed to marry 
 one another on a day now elapsed, and the Plaintiff was 
 ready and willing to marry the Defendant on that day, yet 
 the Defendant neglected and refused to marry the Plaintiff. 
 
 * The forms, that are not numbered, are not contained in the Act of 
 Simplification, but have been added by myseli", prepared on tiie princi- 
 ples on which I constructed those contained in the Act.
 
 15G FORMS OF PLEADINGS. 
 
 XIX, That tlie Plaintiff and the Defendant agreed hj 
 charter-party, that the Plaintiff's sliip, called the "Daniel 
 Webster," should with all convenient speed, sail to L., or so 
 near thereto as slie could safely get, and that the Defendant 
 should there load her with a full cargo of coffee, or other 
 lawful merchandise, which she should carry to B,, and there 
 deliver on payment of freight $ — per ton ; and, that the 
 Defendant should be allowed ten days for loading, and ten 
 days for discharge, and ten days for demurrage, if required, 
 at $ — per day ; and, that the Plaintiff' did all things neces- 
 sary on his part to entitle him to have the agreed cargo 
 loaded on board the said ship at L., and that the time for so 
 doing has elapsed, yet the Defendant made default in load- 
 ing the agreed cargo. 
 
 That the Defendant covenanted with the Plaintiff, that he 
 would, at all times, upon request, deliver to the Plaintiff all 
 the fat and tallow of all beasts which he should kill or clress 
 
 before the day of in every year for Jive years ; 
 
 and the Defendant was often requested, according to said 
 stipulation, but did not perform his said covenant. 
 
 XX. That the Defendant, by warranting a horse to be 
 then sound and quiet to ride, sold the said horse to the 
 Plaintiff, yet the said horse was not then sound and quiet to 
 ride. 
 
 That the Defendant, by warranting a horse to belong to 
 him, sold the said horse to the Plaintiff; yet the said horse 
 was not the horse of the Defendant. 
 
 That the Defendant was a common carrier of goods and 
 chattels for hire and reward. And the Plaintiff was pos- 
 sessed of a package of books, and delivered the same to the 
 Defendant to be carried and delivered, for a certain reward, 
 ■from Baltimore City to Frederick. And the Defendant re- 
 ceived the same to be carried and delivered as aforesaid.
 
 FORMS OF PLEADINGS. 157 
 
 Yet, tlie Defendant did not cany and deliver tlie package, 
 but wliolly lost it. 
 
 That the Defendant was a common carrier, of goods and 
 chattels for hire and reward. And the Plaintiff was pos- 
 sessed of divers goods and chattels, and delivered the same 
 to the Defendant to be carried and delivered, for a certain 
 reward, from Baltimore City to Philadelphia. And the 
 Defendant received the same to be carried and delivered as 
 aforesaid. And the Defendant did not carry and deliver 
 the said goods and chattels safely, bnt for want of due and 
 proper care being taken of them, they were wholly spoiled, 
 
 XXI. That the Plaintiff let to the Defendant a house, 
 jSTo. 200, Market street, in the City of Baltimore, for four 
 
 years, to hold from the day of , A. D. , at S — 
 
 a year, payable quarterly, of which rent quarters are 
 
 due and unpaid. 
 
 XXII. That the Plaintiff, by deed, let to the Defendant a 
 
 house on Patrick street, Frederick, in county, seven 
 
 years from the day of -. , A. D. , and the De- 
 fendant, by this said deed covenanted with the Plaintiff, well 
 and substantially to repair the said house during the said 
 term, {according to the covenant ;) yet the said house was, 
 during the said term, out of good and substantial repair. 
 
 XXIII. That the Plaintiff and Defendant, by their agree- 
 ment in writing, referred the matters therein mentioned to 
 arbitrators ; and the arbitrators have made their award in 
 writing, that the Defendant pay the Plaintiff the sum of $ — , 
 which the Defendant has failed to do. 
 
 {Wliere the award is not for the mere payment of money as 
 ahove, but for the performance of some act by the Defendant, that 
 act must be stated in place of the italic line; and ivhere the 
 Plaintiff also is to perform some act either precedent or concur-
 
 158 FORMS OF PLEADINGS. 
 
 rent^ a general averment., " that he has 2^erformed [or is ready to 
 'perform) all on his part,^'' after the statement of non-performance 
 hy the Defendant^ as above ^ shall he sufficient. 
 
 XXIV. That one W. T. owed the Plaintiff the sum of $— , 
 and the PLaintiff was about to sue hira to recover the same. 
 And in consideration that the Plaintiff would forbear to sue 
 the said W. T., the Defendant agreed to pay the same to the 
 Plaintiff, and the Plaintiff did forbear to sue the said W. T. ; 
 and the Defendant has not paid the said sum of $ — . 
 
 That the Defendant promised to pay the Plaintiff for all 
 necessaries that the Plaintiff should provide one T. 11. with; 
 and the Plaintiff provided T. H. with necessaries ; and the 
 Defendant did not pay for the same. 
 
 For services rendered as a physician, and medicines pro- 
 vided, by the Plaintiff for the Defendant at his request.' 
 
 For services rendered as an attorney at law by the Plain- 
 tiff for the Defendant, at his request. 
 
 {The two preceding counts may., Wee the common counts^ he 
 preceded hy the words, " Money payable., cDc." It is not neces- 
 sary to specify the nature and the manner of the work and labor, 
 (3 Saund. P. 349, (2) ) as is done in these counts. But the 
 Plaintiff may use the common count instead; and prove the 
 special sort of worh. It is however better to declare specially., 
 and have the common count also.) 
 
 XXY. That the Plaintiff purchased of the Defendant a 
 thousand bushels of wheat, for the sum of fifteen hundred 
 dollars, to be paid for on delivery thereof; and the Defendant 
 
 promised to deliver the same on the day of at the 
 
 Defendant's ware-house, in the City of Baltimore ; and on 
 said day, the Plaintiff demanded said wheat at said ware- 
 house, and tendered to the Defendant said sum of fifteen
 
 FORMS OF PLEADINGS. 159 
 
 hundred dollars in payment of the same ; and the Defendant 
 refused to deliver the said wheat to the Plaintiff. 
 
 That the Defendants on the day of by their 
 
 "bond acknowledged themselves to be bound to the State of 
 Maryland, in the sum of $ — ; which bond is subject to the 
 
 condition : — That if the Defendant A. B., as sheriff of 
 
 county, Qiere recite tJie condition.) 
 
 That at the Circuit Court for county, Term, 
 
 1854, L. 11., for whose use this action is brought, recovered 
 
 judgment against one M. S., for the sum of dollars and 
 
 cents, and dollars for costs. And that after 
 
 making the said bond by the Defendants, and before the 
 bringing this action, the said L. H. for the recovery of the 
 amount of said judgment and costs, prosecuted out of the 
 said Court a writ of Jien facias to the said A. B., as sheriff 
 
 of County, by which writ he was commanded, of the 
 
 goods and chattels, lands and tenements, of the said M. S., 
 in his bailiwick, to make the amount of the said judgment 
 and costs, and ■ to have the same before the said Court here 
 to render the same to the said L. H.; and said writ before 
 the return day thereof, was delivered to the said A. B. as 
 sheriff, to be executed by him. And by virtue of the said 
 writ, the said A. B. levied, of the goods and chattels in his 
 bailiwick, of the said M. S., the full amount of said judgment 
 and costs. And the said A. B. has not paid to the said L. 
 II. the sum of money and costs levied as aforesaid. 
 
 That the Defendants on the day of , by their 
 
 bond, bound themselves to the State of Maryland in the sum 
 of $ — : which bond is subject to the condition : That if the 
 Defendant A. B. shall well and truly perform the ofl&ce of 
 Executor of 0. M., &c., {here insert the condition.) 
 
 And the said 0. M. in his life time was indebted to S. K., 
 for whose use this action is brought, for 
 
 1. Goods bargained and sold by the said S. K. to 0. M. 
 in his life time.
 
 160 FORMS OF PLEADINGS. 
 
 2. "Work done and materials provided by tlie said S. K 
 for 0. M. in liis life time, at his request. 
 
 4. That 0, M. in his life time, on the day of , by 
 
 his promissory note, over-due in his life time^ promised to pay 
 to the said S. K. $ — , sixty days after date, but did not pay 
 the same. 
 
 And there came to the hands of the said Executor, after 
 the death of the said 0. M., assets of the said 0. jM., sufficient 
 to pay all his debts. 
 
 That the defendants, on the day of , by their 
 
 bond, bound themselves to the State of Maryland in the sum 
 of $ — ; which bond is subject to the condition: That if the 
 Defendant A. B.. shall well and truly perform the of6.ce of 
 Executor of 0., &c., {Jiere insert the condition?) 
 
 And the said O. M. made his last will, and beqaeathed to 
 S. K., for whose use this action is brought, a legacy of one 
 thousand dollars ; and the residue of his personal property^ after 
 paying the debts, expenses and legacies. 
 
 And there came to the hands of the said executor, after 
 the death of the testator, assets of the testator, sufficient to 
 pay all his debts, the expenses, and legacies ; and leaving a 
 large residue. But the said executor has not paid the said 
 legacy and residue to the said S, K. 
 
 That the Defendants on the •• day of , by their 
 
 bond, acknowledged themselves to be bound to the State of 
 Maryland in the sum of § — ; which bond is subject to the 
 condition : That if the Defendant A. B., as guardian of 0. P. 
 of county, shall, &c., {hei'e insert the condition) 
 
 That after the making the said bond, the said guardian 
 did receive on account of the said 0. P., for whose use this 
 
 action is brought, as his ward, the sum of S ; and, that 
 
 before the bringing off this action, the said O. P. arrived at 
 the age of twenty-one years, and requested the said A. B.,
 
 FOR-AIS OF PLEADINGS. 161 
 
 to pay to him tlie said sum of $ , wliicli tlie said A. B . 
 
 has failed to do. 
 
 FOR WRONGS INDEPENDENT OF CONTRACT. 
 
 XXVI. That the Defendant broke and entered certain 
 
 land of the Plaintiff called " The Orchard," in county, 
 
 and depastured the same with cattle. 
 
 That the Defendant broke and entered the fishery of the 
 
 Plaintiff, called , situated in county, and took fish 
 
 and converted them to his own use. 
 
 That the Defendant seized, and took the Plaintiff's cattle. 
 that is to say — {here specify them) 
 
 That the Defendant detained the plaintiff's horse. 
 
 XXVII. That the Defendant assaulted and beat the 
 Plaintiff, gave him into the custody of a constable, and 
 
 caused him to be imprisoned in the jail of county, {or 
 
 city) 
 
 XXVIIT. That the Defendant debauched and carnally 
 knew the Plaintiff's wife. 
 
 XXIX. That the Defendant converted to his own use, or 
 wrongfully deprived the Plaintiff of the use and possession 
 of the Plaintiff''s goods ; that is to say, ivheat, rye, household 
 furniture, (or, as the case may le) 
 
 XXX. That the Plaintiff' was possessed of a mill, called 
 
 "Linganore Mill," in county, and by reason thereof, 
 
 was entitled to the flow of a stream for working the same, 
 
 and the Defendant, by cutting the bank of said stream, 
 
 diverted the water tlicreof away from the said mill. 
 
 11
 
 1G2 FORMS OF FLEADINGS. 
 
 XXXI. That the Phaintiff was possessed of land, called 
 
 "Idlewild," in county, and was entitled to a way from 
 
 said land, over the land of the Defendant, to a public high- 
 way, for himself and his servants, with horses and wagons 
 to go and return, at all times, at his and their free will, for 
 the more convenient occupation of the said land of the 
 Plaintiff; and the Defendant deprived him of the use of the 
 said way, in as ample a manner as he was entitled. 
 
 That the plaintiff was the owner of divers goods and 
 chattels, and had hired them for a certain term then unex- 
 pired, to one E. F., and whilst the same Avere so let and in 
 the possession of the said E. F., and the reversionary interest 
 still in the Plaintiff, the Defendant took said goods and 
 chattels out of the possession of the said E. F. and converted 
 them to his own use. 
 
 That the Plaintiff let to one A. B. a house, No. 200 Mar- 
 ket street, in the City of Baltimore, for a certain term, and 
 whilst the said house was in the possession of the said 
 tenant, and the reversion thereof then belonging to the 
 Plaintiff, the Defendant carelessly dug beneath the foundation 
 of one of the walls of said house, so that the wall was, 
 thereby, damaged to the injury of the Plaiutift^'s reversion- 
 ary interest. 
 
 {Under the head " Title" I have stated the doctrine of plead- 
 ing to he, that in an action for an injury to a reversionary interest 
 in either real or personal property, title must he laid in the 
 declaration accordingly. The tivo preceding counts are exem- 
 pli ficcdions of the doctrine) 
 
 XXXII. That the defendant falsely and maliciously 
 spoke and published of the Plaintiff' the words following : 
 that is to say, "he is a thief;" {if there he any special damage, 
 here state it ivith such reasonahle particularity as to give notice 
 to the Defendant of the particular injury compkcined of ; for
 
 FOKMS OF PLEADINGS. 163 
 
 instance^ wliereby the Plaintiff lost liis situatioa of book- 
 keeper in tlie Bank of Waskington. 
 
 XXXIII. That the Defendant falsely and malicionsly 
 printed and published of the Plaintiff in a newspaper called 
 " The Examiner," the ^Yords following : That is to say, 
 " he foreswore himself," the Defendant meaning thereby that 
 the Plaintiff had been guilty of the crime of perjury. 
 
 XXXIY. That the Defendant is a corporation owning a 
 railroad between B. and C. ; that the Plaintiff was a passen- 
 ger on said railroad, and by reason of the insufficiency of 
 an axle of the car in which he was riding, the Plaintiff was 
 hurt : that the Defendant did not use due care in reference 
 to said axle, but the Plaintiff" did use due care. 
 
 {This form may he varied so as to adapt it to many cases^ 
 hy merely changing the allegation as to the cause of the acci- 
 dent) 
 
 XXXV. That the Defendant is an incorporated city and is 
 bound to keep its streets in repair, that one of its streets, 
 called street, was negligently suffered by the De- 
 fendant to be out of repair, whereby the Plaintiff in travel- 
 ling on said street, and using due care, was hurt. 
 
 XXXYI. That the Defendant hired from the Plaintiff a 
 horse, to ride from Frederick to Hagerstown, and thence 
 back to Frederick, in a proper manner ; and the Defendant 
 rode said horse so immoderately that he became lame and 
 injured in value. 
 
 PLEAS. 
 
 It is impossible to state all the causes of action, to which 
 a given plea is a proper defence. The pleader is presumed 
 to know what is his proper defence; therefore, in looking
 
 164 FORMS OF PLEADINGS. 
 
 over tlie dilTercnt pleas, he can find tlie one appropriate to 
 his case. All the special pleas wliich could be pleaded 
 under the old system, are still available defences. All that 
 is required in regard to them, by the Simplifying Act, is 
 that they be stripped of their artificial formal commence- 
 ments and conclusions, and all other useless allegations, and 
 be pleaded in their mere legal substance. The only pleas of 
 the old system, which cannot be pleaded, are the general 
 issues. 
 
 The simplied pleading introduces several new pleas ; but 
 they all could have been used under the old system, if the 
 technicalities had not excluded them. These new pleas do 
 not, of course, introduce any new defences ; because, what- 
 ever is a good defence in laAV now, was a good defence under 
 the old system by way of evidence if not of plea. Under 
 the old system, the Plaintiff was required to make his state- 
 ment in an artificial and sometimes fictitious form, which 
 necessitated denials of an artificial and fictitious character ; 
 and the substantial defence was adduced in evidence under 
 the fictitious issues formed by the artificial pleadings. The 
 denials, embodied in these new pleas of the simplified system, 
 could have been no denials of the artificial affirmatives of 
 the old pleadings. The artificial affirmative, in implied 
 promises, for example, can only be denied directly by the 
 artifical negative of the promise ; and the substantial defence 
 mnst then be given in evidence, under the artificial issue. 
 But as the Simplifying Act excludes the statement of the 
 fictitious promise from the declaration, the plea of did not 
 promise becomes at once inapplicable, and the new plea, 
 That he never was indebted as alleged, becomes an admissible 
 form of denial. As, too, in declaring on bills of exchange, 
 there is no longer the allegation of the implied promise in 
 the declaration, the plea of nan assumpsit does not apply ; 
 and two special pleas have been provided : That he did not 
 accept the said bill of exchange as alleged; and that the said bill 
 of exchange ivas not duly presented for acceptance as cdleged. 
 These two pleas were facts or defences which could have
 
 FORMS OF PLEADINGS. 165 
 
 been given in evidence under the plea of iwn assum2:)sit. So 
 the new pleas, That lie did not agree as alleged; and that he 
 did not ivarrant as alleged, are also let in as proper forms of 
 denial in all cases where the gist of the averment of the 
 PlaintilY's cause of action is expressed by the words agy-ee 
 or ivarrant. As now, in the statement of agreements, and 
 of warranties no artificial words supersede or usurp the 
 meaning of the words a^ree or tcarrant, any denial of these 
 words is legitimate. So, again, the new plea. That he did 
 not let a house as alleged, becomes applicable to the special 
 case, by abolishing the technicalities by which it was before 
 excluded. These are all the new pleas introduced by the 
 Simplifying Act in regard to actions on contracts. All the 
 other pleas in regard to actions on contracts are but modi- 
 fications of old pleas. 
 
 In regard to actions for wrongs independent of contract 
 no new plea has been introduced by the Simplifying Act. 
 The general issue not guilty, has, it is true, been abolished ; 
 and the plea, That he did not commit the wrong alleged, has been 
 substituted for it. . But this plea is, in scope, the same with 
 the plea of not guilty. Both pleas amount to a denial of the 
 wrong alleged, and no more. In an action for breaking the 
 plaintiff's close or for taking his goods, if the plaintiff did 
 not, in fact, enter the close in question or take the goods ; or 
 if he did break and enter the close, but it was not in the 
 possession of the 'plaintijf, or not laiufully in his possession, as 
 against the better title of the Defendaiit ; or if he did take 
 the goods but they did not belong to the Plaintiff, the substi- 
 tuted plea is applicable, just as the plea of not guilty was. 
 For as the declaration in such cases alleges the trespasses or 
 wrongs to have been committed on the close or goods of the 
 Plaintiff, the new plea, as well as the plea of not guilty in- 
 volves a denial, that the defendant broke and entered the 
 close, or took the goods of the Plaintiff. The plea therefore 
 is a good plea wherever the defendant means to contend 
 that the Plaintiff had no possession of the close, or no pro-
 
 166 FORMS OF PLEADINGS. 
 
 perty in the goods, sufficient to entitle liim to call tliem bis 
 own. If the defence be of ony other kind, this new plea, 
 like the plea of not guilty will not apply. So if the action 
 be for an assault and battery, if the Defendant did not assault 
 or beat the plaintiff, this new plea is applicable : but if his 
 defence be of any other description, the plea will be inap- 
 plicable. The plea, therefore, differs from not guilty^ merely 
 in form. This general plea is applicable whenever the wrong 
 is denied. 
 
 The Act of Simplification prescribes the following Com- 
 mencements for Pleas: 
 
 COMMENCEMENTS FOR PLEAS. 
 
 XXXVII. The Defendant, by S. T., his attorney {or in 
 person) says {liere state the substance of the plea). 
 
 XXXVIII. And for a second plea the Defendant says, 
 {Here state the second plea) 
 
 [^All pleoM must commence in the above forms: and they should 
 specfy to tvhich count or counts in the declaration they are 
 pleaded ; for when a plea does not profess to he an answer to 
 any particular count, it must he considered an answer to the 
 ivhole declaration ; (5 Harr. & John 432) and if it should not 
 he an answer to the whole declaration, though a good ansiuer to a 
 count, it ivill he good for nothing, as heing had in part, it is had 
 altogether. Steph. Pleas. 403-5.] 
 
 PLEAS IN ACTIONS ON CONTRACT. 
 
 XXXIX. That he never was indebted as alleged. {This 
 plea is applicable to declarations like those numbered 1. to XII)
 
 FORMS OF PLEADINGS. 167 
 
 XL. That lie did not promise as alleged, {This ^j?ea is 
 applicable to declarations like those numbered Xlll.and XIV., 
 and to declarations on simple promises of any kind.) 
 
 XLI. That he did not accept the bill of exchange as al- 
 leged. {This p)lea is appliccdtle to declarations like that num- 
 bered XV.) 
 
 XLII. That said bill of exchange was not dnlj presented 
 for acceptance as alleged. {7 his plea is applicccble to declara- 
 tions like that numbered X F/.) 
 
 XLIII. That he did not agree as alleged. {This plea is 
 applicable to declarations like those numbered XVII to XIX.) 
 
 XLIV. That he did not warrant as alleged. {This plea is 
 apiplicable to declarations like that numbered XX.) 
 
 XLV. That he did not let a honse as alleged, {This plea 
 is applicable to declarations like that numbered XXI.) 
 
 XLVI. That the alleged deed is not his deed. {This plea 
 is applicable wherever the fact of the execution of any sealed 
 instrument is denied.) 
 
 XLVII. That at the time of the making of the alleged 
 deed, the Defendant was and still is within twenty-one years 
 of age. 
 
 XLYIII. Tliat at the time of the makino^ the allesred 
 deed the Defendant was and still is the wife of one W. T, 
 
 XLIX. That the Defendant was unlawfully imprisoned 
 by the plaintiff", and others in collusion ivith him, until by 
 duress of imprisonment he made the alleged deed. 
 
 L, That the alleged deed was procured by the fraud of 
 the Plaintiff.
 
 168 FORMS OF PLEADINGS. 
 
 LI. Thfit tliG Plaintiflf threatened tlic life of the Defend- 
 ant unless he would make the alleged deed ; and that from 
 fear of the threats he made the same. 
 
 LII. That after the sealing and delivery of the alleged 
 deed, it was, without the consent of the defendant, altered, 
 and the words {insert them) were inserted and substituted^ 
 therein, for the words (insert them). 
 
 LIII. That the Defendant delivered the alleged deed, to 
 one A. F., as an escrow on condition that {state the condition) 
 then the said A. F., should deliver the alleged deed to the 
 Plaintiff as the deed of the Defendant. And the Plaintiff 
 has not performed the condition. 
 
 That upon every request made to him, the Defendant did 
 deliver, to the Plaintiff, all the fat and tallow of all the 
 beasts which were killed or dressed by him, before the said 
 day in every year which has elapsed since the date of said 
 covenant. 
 
 That the Defendant was not a common carrier as alleged. 
 
 That the Defendant did not receive and undertake to carry 
 and deliver any goods and chattels for the Plaintiff, as al- 
 leged. 
 
 That the Defendant did not lose the said package, but 
 carried and delivered the same safely. 
 
 That the said goods and chattels were not spoiled as al- 
 leged. 
 
 {The mode of stating other defences by a common carrier^ vjill 
 readily occur to the plectder.) 
 
 That the said house was not, during the said term, out of 
 good and substantial repair.
 
 FORMS OF PLEADINGS. 169 
 
 JAY. That tlie alleged cause of action did not accrue 
 
 within years (state the period of limitation applicahle to 
 
 the case) before this suit. 
 
 LY. That before this action he satisfied and discharged 
 the plaintiff's claim by payment. 
 
 LVI. That the Plaintiff at the commencement of this suit 
 was, and still is indebted to the Defendant in an account 
 equal to the Plaintiff's claim, for {insert the cause of set-off 
 as in a Declaration ; See Form, ante,) which amount the 
 Defendant is willing to set-off against the Plaintiff's claim. 
 
 LVII. That after the alleged claims accrued, and hefore suit, 
 the Plaintiff, by Deed, released the Defendant therefrom. 
 
 LVIII. That at the Circuit Court, for County, 
 
 Term, 1S54, the Plaintiff recovered judgment against the 
 
 Defendant for the sum of dollars and cents, and 
 
 dollars costs ; and that said judgment was rendered on 
 
 the same cause of action mentioned in the Plaintiff's Decla- 
 ration, and is still a subsisting judgment. 
 
 LIX. That he was discharged as an insolvent debtor by 
 
 the Circuit Court for County, {or Court of Common PUas 
 
 for the City of Baltimore,) on the — day of , 1854, and 
 
 the alleged claim accrued before the filing of his Petition. 
 
 LX. That he applied by Petition as an insolvent debtor 
 
 to the Circuit Court for County, {or Court of Common 
 
 Pleas for the City of Baltimore,) on the — day of , 
 
 eighteen hundred and fftyfour, and the proceedings under 
 the Petition are still pending ; and that the alleged claim 
 accrued before the filing of his Petition. 
 
 138. "A Defendant may plead, as in the above Form, 
 that he has applied by Petition as an insolvent debtor to the
 
 170 FORMS OF PLEADINGS. 
 
 proper Court, and tliat tlio proceedings under Lis Petition 
 are still pending, and that tlio alleged claim accrued before 
 tlie filing of liis Petition. And upon proof of tlie facts so 
 pleaded, judgment shall only be entered subject to tlie 
 result of tlie proceedings under the Petition. 
 
 PLEAS IN ACTIONS FOR WRONGS INDEPEND- 
 ENT OF CONTRACT. 
 
 LXI. That he did not commit the wrong alleged. 
 
 That the said land at the time of said alleged trespass 
 "was the close, soil and freehold of the Defendant, wherefore 
 he entered said land. 
 
 That he had a right of pasture on said land for said cattle 
 being his own cattle. 
 
 LXII. That he did what is complained of by the Plain- 
 tiff's leave. 
 
 LXIII. That the Plaintiff was not entitled to the said 
 way over the Defendant's land as the Plaintiff has alleged. 
 
 LXIV. That the Plaintiff first assaulted him; and he 
 committed the alleged assault in his own defence. 
 
 That the Plaintiff wrongfully entered the defendant's 
 house, and was making a disturbance there, and the Defend- 
 ant gently removed him. 
 
 That he arrested the Plaintiff on suspicion of felony, and 
 did only what was necessary for that purpose. 
 
 That the cattle were trespassing on the Defendant's land, 
 and he took and detained them for the injury committed.
 
 FORMS OF PLEADINGS. 171 
 
 LXY. That the Defendant, at tlie time of the alleged 
 
 trespass, was possessed of land called " Idlewild," in 
 
 County, and was entitled to a way from said land over tlie 
 land of the Plaintiff, to a public highway, for himself and 
 his servants with horses and wagons, to go and return at 
 all times, at his and their free will, for the more convenient 
 occupation of the said land of the Defendant ; and that the 
 alleged trespass was a use by the Defendant of said way. 
 
 EEPLICATIONS. 
 
 LXYI. The Plaintiff joins issue upon the Defendant's 
 first, second, &c., pleas. 
 
 LXYII. The Plaintiff as to the second plea, says, {state 
 the Answer to the Plea as in the following Forms?) 
 
 LXVIII. That the alleged release is not the Plaintiff's 
 Deed. 
 
 LXIX, That the alleged release was procured by the 
 fraud of the Defendant. 
 
 That the cause of action did accrue within . years 
 
 before this suit. 
 
 That at the time the cause of action accrued, the Defend- 
 ant was out of the State, and the suit was commenced, within 
 years after his return. 
 
 LXX. That the alleged set-off did not accrue within 
 
 years [state tlie period of limitation applicable to the case,) before 
 this suit. 
 
 LXXI. That the Plaintiff's claim is upon an account 
 concerning trade between himself and the Defendant, as 
 merchant and merchant. 
 
 LXXII. That the Plaintifl" was possessed of lands called
 
 172 FORMS OF PLEADINGS. 
 
 "Midsummer," in County, wlicreon tlie Defendant was 
 
 trespassing and doing damage, whereupon the Plaintiff re- 
 quested the Defendant to leave said land, which the Defend- 
 ant refused to do ; and thereupon the Plaintiff' gently laid 
 his hands on the Defendant in order to remove him, doing 
 no more than was necessary for that purpose which is the 
 alleged first assault by the Plaintiff'. 
 
 LXXIII. That the Defendant was not entitled to the said 
 way over the Plaintiff''s land as the Defendant has alleged. 
 
 LXXIY. That the alleged trespass was not a use by the 
 Defendant of the said way. 
 
 LXXV. That the Defendant was not within the age of 
 twenty- one years as alleged. 
 
 That the goods for which the action is brought, were 
 necessaries suitable to the Defendant's condition in life. 
 
 LXXVI. That the alleged deed was not delivered as an 
 escrow as alleged. 
 
 LXXYII. That the Defendant was not, and is not now, 
 the wife of one "W". T. as alleged. 
 
 LXXVIII. That the Defendant did not make the alleged 
 deed by duress as alleged. 
 
 LXXIX. That the alleged deed was not procured by the 
 fraud of the Plaintiff. 
 
 LXXX. That the Defendant did not commit the alleged 
 assault in his own defence. 
 
 NEW ASSIGNMENT. 
 
 LXXXI. The Plaintiff, as to the and Pleas, 
 
 says, that he sues not for the Trespasses therein admitted, 
 but for Trespasses committed by the Defendant in excess
 
 FORMS OF PLEADINGS. 173 
 
 of tlie alleged riglits, and also in otlier parts of the said land 
 and on other occasions, and for other purposes than those 
 referred to in the said Pleas. 
 
 {If the Plaintiff replies and neio assigns, the new Assignment 
 may be as folloivs :) 
 
 LXXXII. And the Plaintiff, as to the and 
 
 Pleas, further says, that he sues not only for the Trespasses 
 in these Pleas admitted, but also for, &c. 
 
 {If the Plaintiff replies and new assigns to some of the Pleas, 
 and new assigns only to the other, the Form may he as follows :) 
 
 LXXXIII. And the Plaintiff, as to the and 
 
 Pleas, further says, that he sues not for the Trespasses in 
 
 the Pleas {the Pleas not replied to,) admitted, but for 
 
 the Trespasses in the Pleas {the Pleas replied to,) ad- 
 mitted, and also for, &c. 
 
 ^-PLEAS IX ABATEMENT. 
 
 LXXXIV. That the Plaintiff at the time of issuing the 
 Summons in this case, was and still is the wife of one R. B. 
 
 LXXXY. That the Plaintifi' is within twenty-one years 
 of age ; and has declared by attorney, when he should have 
 declared by next friend or guardian. 
 
 LXXXVI. That the said contract, in the Declaration 
 mentioned, was made by the Defendant jointly with one 
 W. P., who is still living and is residing in the County {or 
 the City,) aforesaid ; and was not made by the Defendant 
 alone ; and therefore, the said W. P. should have been sued 
 also. 
 
 * Xo diliilory Plea can be received after tlio rule day, unless the 
 fact upon whicli it is founded, occurred subsequent to llie rule day. 5 
 Ilarr. & John. 489.
 
 174 FORMS OF PLEADINGS. 
 
 {This Form shall he sufficient ivhether the contract he hy ixirol 
 or hy deed.) 
 
 FORM OF AFFIDAVIT TO PLEAS IN ABATEMENT 
 REQUIRED BY THE STATUTE 16 ANNE. 
 
 LXXXVII. County, 
 
 M. R., {the Defendant in the cause^) makes oatli and says, 
 that tlie Plea, liereimto annexed, is true in substance and in 
 fact. M. R. 
 
 Sworn before 
 
 FORM OF DECLARATION, WHEN THE SUMMONS 
 IS RETURNED AS TO SOME OF THE DEFEND- 
 ANTS, "CANNOT BE FOUND." 
 
 LXXXYIII. {Venue,) R. G., by S. T., bis Attorney, {or in 
 persoyi,) sues J. T. and M. B., (but M. B. cannot be found 
 
 by tbe Sheriff,) for {hei-e state the cause of action,) and the 
 Plaintiff claims from J. T. {the person summoned^ § . 
 
 COMMENCEMENTS OF DECLARATIONS, BY PER- 
 SONS SUING IN SPECIAL CHARACTERS. 
 
 LXXXIX. ( Venue) A. B., Executor of the last mil {or 
 administrator of the goods, &c) of 0. H. deceased, by S. T. his 
 attorney, {or in j^erson,) sues D. E. for {here state the cause of 
 action.) 
 
 XC. ( Venue.) C. K., Trustee of 0. X., an insolvent debtor, 
 by S. T., his attorney, {or in person,) sues L. P., for {liere state 
 the cause of action?) 
 
 XCI. ( Venue) J. T., who is within age, by S. T. his next 
 friend {or guardian) sues W. B. for {here state the cause of 
 action. 
 
 XCII. ( Venue) G. H., who was the husband of L. K. de-
 
 FORMS OF PLEADINGS. 175 
 
 ceased, formerly L. B., who lias survived his said wife, by 
 S. T., his attorney, {or in jierson^ sues C. P. for {here state the 
 cause of action.) 
 
 XCIII. ( Venue.) B. H. and F. W., surviving partners of 
 T. K. and I, M., {trading under the name of B. H., F. W. & 
 Co.,) by S. T., their attorney, {or in person^ sue T. H., sur- 
 viving partner of M. S., {trading under the name of T. H. and 
 31. S.,) for {here state the cause of action.) 
 
 {The words " trading under the name of d'c, may be omitted, 
 unless the name of the firm he contained in the contract sued on.) 
 
 {The conclusion of Declarations, by persons suing in special 
 characters, shall be the same with that of declarations, by persons 
 suing in their proper characters^ 
 
 COMMENCEMENTS OF DECLARATIONS BY EX- 
 ECUTORS AND ADMINISTRATORS. 
 
 XCIY. ( Venue) A. B. Executor of the last will {or ad- 
 ministrator of the goods, &c.,) of 0. H. deceassd, by S. T. his 
 attorney, {or in i:)erson,) sues D. E. for, (liere state the cause of 
 action.) 
 
 CONCLUSIONS OF DECLARATIONS BY EXECU- 
 TORS AND ADMINISTRATORS. 
 
 XCY. And the Plaintiff" claims $ , {or if the action is 
 
 brought to recover specific goods,) the Plaintiff" clahns a return 
 of the goods or their value, and $ for their detention. 
 
 STATEMENT OF CAUSES OF ACTION ON CON- 
 TRACT BY EXECUTORS AND ADMINISTRA- 
 TORS. 
 
 XCVI. Money payable by the Defendant to the Plaintiff'
 
 176 FORMS OF PLEADINGS. 
 
 for {these words, " money payable,''^ &c., sJiouId iirecede money 
 counts nice XCYI. to CVII, inclusive, hut need only he inserted 
 in the first,) goods bargained and sold by 0. 11. in his life 
 time to tlie Defendant. 
 
 XCVII. Work done and materials provided by O. H. in 
 his life time for the Defendant at his request. 
 
 XCVIII. Money lent to 0. H. in his life time to the 
 Defendant. 
 
 XCIX. Money paid by 0. H. in his life time for the De- 
 fendant at his request. 
 
 C. Money received by the Defendant for the use of 0. H. 
 in his life time. 
 
 CI. Money found to be due from the Defendant to 0. H. 
 in his life time, on accounts stated between them. 
 
 CII. A messuage and lands sold and conveyed by 0. II. 
 in his life time to the Defendant. 
 
 cm. The good will of a business of O. H., sold and given 
 up by 0. H. in his life time to the Defendant. 
 
 CIY. The Defendant's use, by the permission of 0. H. in 
 his life time, of messuages and lands of O. H. 
 
 CV. The hire of {as the case may he,) from O. H. in his life 
 time, let to hire to the Defendant. 
 
 CYI. Freight for the conveyance by O.H. in his life time 
 for the Defendant at his request of goods in ships. 
 
 CVII. The demurrage of a ship of 0. H. in his life time 
 kept on demurrage by the Defendant.
 
 FORMS OF PLEADINGS. 177 
 
 CYIII. That the Defendant, on the day of 
 
 by his promissory note, now over-dne, promised to pay to 
 
 O. H, in his life time, $ , sixtjj days after date, but has 
 
 not yet paid the same. 
 
 CIX. That one A. on, &c., (date,) by his promissory note, . 
 now over-due, promised to pay to the Defendant, or order, 
 
 S , sixty days after date; and the Defendant endorsed the 
 
 same to 0. H. in his life time ; and the said note was duly 
 presented for pajnuent and was dishonored, whereof the De- 
 fendant had notice, but has not yet paid the same. 
 
 ex. That O. H. in his life time on, &c., {date,) by his bill 
 of exchange now over due, directed to the Defendant, re- 
 quired the Defendant to pay to O. H. S , sixty days after 
 
 date ; and the Defendant accepted the said bill, but has not 
 yet paid the same. 
 
 CXI. That the Defendant, on, &c., (date,) by his bill of 
 exchange directed to A., required A. to pay to 0. H. in his 
 
 life time $ , sixty days after date ; and the said bill was 
 
 duly presented for acceptance and was dishonored, of which 
 the Defendant had due notice, but has not yet paid tlie 
 same. 
 
 CXII. That 0. H., in his life time, let to the Defendant a 
 house. No, 200 Market street, in the City of Baltimore, for 
 
 four years to hold from ■ day of A. D., at 
 
 3 a year, payable quarter!}-, of which rent quarters 
 
 were due, at the time of the death of 0. H. and were still 
 due and unpaid, 
 
 {As the foregoing declarations are for suits against persons in 
 their proper character, the pleas, already given, can be pleaded 
 to them,) 
 
 U
 
 178 FORMS OF TLEADINGS. 
 
 COMMENCEMENT OF DECLARATIONS AGAINST 
 EXECUTORS AND ADMINISTRATORS. 
 
 CXIIL ( Ve^iue.) A. B., bj his Attorney, {or in Person^ as 
 the case may he,) sues C. D, Executor of the last will {or Ad- 
 mimstrator of the goods, chattels, &c) of P. S. deceased, for 
 {here state the cause of action.) 
 
 CONCLUSIONS OF DECLARATIONS AGAINST EX- 
 ECUTORS AND ADMINISTRATORS. 
 
 CXIY. And the Plaintiff claims S {or if the action 
 
 he to recover specific goods,) the Plaintiff claims a return of 
 the said goods or their value, and $ for their deten- 
 tion. 
 
 STATEMENT OF CAUSES OF ACTION ON CON- 
 TRACTS, AGAINST EXECUTORS AND ADMINIS- 
 TRATORS. 
 
 CXV. Money payable by the Defendant, to the Plaintiff' 
 for {these words Money payable, &c., should precede Money 
 counts like CXV to CXXVI inclusive, hut need only he inserted 
 in the first,) goods bargained and sold by the Plaintiff to P. S., 
 in his life time. 
 
 CXVI. Work done aud materials provided by the Plain- 
 tiff for P. S. in his life time at his request. 
 
 CXYII. Money lent by the Plaintiff to P. S. in his life 
 time. 
 
 CXYIII. Money paid by the Plaintiff, for P. S., in his life 
 time at his reqi\est.
 
 FORMS OF PLEADINGS. 179 
 
 CXIX. Money received by P. S. in his life time for ilie 
 use of the Plaintiff. 
 
 CXX. Money found to be due from P. S. in his life time, 
 to the Plaintiff, on accounts stated between them. 
 
 CXXI. A messuage and lands sold and conveyed by the 
 Plaintiff to P. S. in his life time. 
 
 CXXII. The good will of a business of the Plaintiff 
 sold and given up by the Plaintiff to P. S. in his life time. 
 
 CXXIIT. The use by P. S. in his life time of messuages 
 and lands of the Plaintiff, by the Plaintiff's permission. 
 
 CXXIV. The hire of {as the case may 5e,) by P. S. in his 
 life time, let to hire by the Plaintiff to him. 
 
 CXXV. Freight for the conveyance by the Plaintiff for 
 P. S. in his life time at his request of goods in ships. 
 
 CXXYI. The demurrage of a ship of the Plaintiff kept 
 on demurrage by P. S. in his life time. 
 
 CXXYII. That P. S. in his life time, on the day of 
 
 by his promissory note, now over-due, promised to 
 
 pay to the Plaintiff $ , sixty days after date, but did not 
 
 pay the same in his life time ; nor has the Defendant paid 
 the same since the death of P. S. 
 
 CXXVIII. That one A. K., or, &c. {date^ 'by his promis- 
 sory note, now over-due, promised to pay to P. S. or order, 
 
 $ , sixty days after date ; and the said P. S. in his life 
 
 time endorsed the same to the Plaintiff; and the said note 
 was duly presented for payment, and was dishonored 
 whereof the said P. S. had due notice, but did not pay the 
 same in his life time, nor has the Defendant })aid the same 
 since the death of P. S.
 
 180 FORMS OF PLEADINGS. 
 
 CXXIX. That the Plaintiff, on, &c. {date,) by liis bill of 
 exchange now over-due, directed to P. S. in his life time, 
 
 required P. S. to pay to the Plaintiff $ , sixty days after 
 
 date ; and P. S. accepted the said bill, but did not pay the 
 same in his life time, nor has the Defendant paid the same 
 since the death of P, S. 
 
 CXXX. That P. S., in his life time, on, ko,. {date) by his 
 bill of Exchange directed to A. K., required A. K. to pay 
 
 to the Plaintiff S , sixty days after date; and the said 
 
 bill was duly presented for acceptance, and Avas dishonored, 
 of which P. S. had due notice, but did not pay the same in 
 his life time, nor has the Defendant paid the same since the 
 death of P. S. 
 
 COMMENCEMEXT OF PLEAS BY EXECUTORS 
 AND ADMINISTRATORS. 
 
 CXXXL The Defendant, executor of the last will {or 
 administrator of the goods and chattels^ of P. S., deceased, by 
 S. T., his Attorney, {or in ^erson^ says, {liere state the sub- 
 stance of the plea.) 
 
 CXXXII. And for the second plea the Defendant says, 
 {here state the second lolea^ 
 
 PLEAS IN ACTIONS ON CONTRACT BY EXECU- 
 TORS AND ADMINISTRATORS. 
 
 CXXXIII. That the said P. S., deceased, was never in- 
 debted in his life time as alleged, 
 
 CXXXIV. That the said P. S., deceased, did not promise 
 
 in his life time as alleged. 
 
 CXXXY. That the allesred cause of action did not accrue 
 at any time within years before this suit.
 
 FORMS OF PLEADINGS. 181 
 
 CXXXVI. That tlie Defendant has fully administered tlie 
 goods and chattels, rights and credits of the said P. S. de- 
 ceased ; and had done so before this suit. 
 
 CXXXYII. That before this suit, and after the lapse of 
 one year, from the date of his letters testamentary {or of 
 administration,) the Defendant paid away, in discharge of 
 just claims, all the assets of the said P. S. deceased, which 
 had come to his hands ; and, that more than six months be- 
 fore he so paid, he gave notice to the creditors of P. S. to 
 bring in their claims. And that at the time of such pay- 
 ment, he had no notice or knowledge of the alleged claim ; 
 and, that since said payment, no further assets have come to 
 his hands. 
 
 CXXXVIII. That before this suit and after the lapse of 
 one year from the date of his letters testamentary, {or of 
 administration,) the Defendant paid away in discharge of just 
 claims, a large amount of assets of P. S. deceased ; and, that 
 more than six months before said payments he gave notice 
 to the creditors of P. S., to bring in their claims. And at 
 the time of said payments he had no notice or knowledge of 
 the alleged claim. And there are other just debts still due 
 from P. S., of which the Defendant had no notice or know- 
 ledge at the time of the said payments ; and he has not, and 
 never has had, assets sufficient to pay but a proportion of 
 the alleged claim, regard being had to the debts still due 
 from P. S. 
 
 COMMENCEMENTS AND CONCLUSIONS OF DE- 
 CLARATIONS BY EXECUTORS AND ADMINIS- 
 TRATORS AGAINST EXECUTORS AND ADMIN- 
 ISTRATORS. 
 
 CXXXIX. County, A. B., executor of the last 
 
 will {or administrator of the goods and chattels^ &c.,) of W. II, ,
 
 1S2 FORMS OF PLEADINGS. 
 
 deceased, by S. T. liis attorney, [or in person,) sues T. K,, 
 executor of the last will {or administrator of the goods and 
 chattels, dbc.,) of W. K., deceased, for [here state cause of 
 action.) 
 
 CX.L. And tlie Plaintiff claims $ , (or if the action is 
 
 hronght to recover specific goods,) the Plaintiff claims a return 
 of the said goods or their value, and $ , for their deten- 
 tion. 
 
 STATEMENT OF CAUSES OF ACTION ON CON- 
 TRACT BY EXECUTORS AND ADMINISTRA- 
 TORS AGAINST EXECUTORS AND ADMINIS- 
 TRATORS. 
 
 CXLI. Money payable by the Defendant to the Plaintiff 
 for [these words, money p)ayahle, &c., should precede the money 
 counts, hut need only he inserted in the first,) goods bargained 
 and sold by W. H. in his life-time, to "W. K. in his life 
 time. 
 
 CLXII. Work done and materials provided by "W. H., in 
 his life time for W. K., in his life-time. 
 
 CXLIII. That W. K. in his life-time, on the day of 
 
 by his promissory note now over-due, promised to pay 
 
 to W. H., in his life-time S , sixty days after date, but 
 
 did not pay the same; nor has the Defendant paid the same 
 since the death of the said W. K. 
 
 CLXIV. That one J. M., on, kc, [date,) by his promissory 
 note now over-due, promised to pay to W. K., or order, in 
 
 his life-time $ , sixty days after date ; and W. K, in his 
 
 life-time endorsed the same to W. H. in his life-time ; and 
 the said note was duly presented for payment and was dis- 
 honored, whereof the said W. K. in his life-time had notice, 
 but did not pay the said note, nor has the said Defendant 
 since the death of the said "W. K. paid the same.
 
 U^DEX. 
 
 THE ARABIC NUMERALS REFER TO THE PAGE OF THE BOOK. 
 
 Abatement, pleas in, 38-41, 142-3. 
 
 defects in, how corrected, 144. 
 must correct the mistake of the plaintiff, 144. 
 cannot be received after the rule day, unless the fact 
 on which the plea is founded occurred subsequent 
 to the rule day, 173. 
 forms of, 173-4. 
 ■Absque hoc, 64-5. 
 Actionem non, 110. 
 Actions, forms of, 19-23, 41. 
 
 memorandum for bringing, 24-5, 31-2, 34-5. 
 Affirmatives, 66, 108. 
 Aggravation, 117. 
 Ambiguity, 79, 80, 81, 88. 
 Amendment, 37-40, 81, 145. 
 
 of the declaration, 148-9. 
 by motion, 144 
 Appearance, mode of, 27-8, 32. 
 
 », when the defendant does not appear, 26-7, 32, 35. 
 Argumentativeness, 63. 
 Assault and battery, 113. 
 Assumpsit, what, 68-70. 
 Authority, in general, 83. 
 
 in respect of property, 130. 
 Avowry, what, 111-12. 
 -Bar, pleas in, what, 100, 110, 142.
 
 184 INDEX. 
 
 Bill of exchange, forms of declaration on, 154-5. 
 
 Single, forms of declaration on, 155. 
 Bond, with conditions, how to declare on, 92-3, 95-6. 
 
 forms of declaration on, 159-60. 
 Capias, 21, 22. 
 
 Causes of action, joinder of, 41-4. 
 Certainty, of the issue, 120-33. 
 Cognizance, what, 111-12. 
 Color, express and implied, what, T3-5. 
 
 express, abolished, *74. 
 Commencements — of declarations, 97-99. 
 form of, 153. 
 of pleas, 110-12. 
 
 form of, 166. 
 Conclusions — of declarations, 91-99. 
 form of, 153. 
 of pleas, none, 111. 
 Confession and avoidance, pleas in, 12-5. 
 
 must give color, 13. 
 express color abolished, 14. 
 Contracts, how to declare on, 93-6. 
 
 forms of declarations on, 158-161. 
 forms of pleas to, 166-110. 
 Count, what, under the old and under the simplified pleading, 
 
 99, 136-140. 
 general and special, 149-50. 
 money or common counts, 151-2. 
 forms of, 153-4. 
 Country, conclusion to, 116. 
 Covenant, how to declare on, 94-6. 
 forms of declaration, 156. 
 Damages, how laid in a declaration under the simplified pleading, 
 
 98-9. 
 Debt, 22, 68, 11. 
 
 the formal distinction between debt and damages in the 
 judgment abolished, 98, 140. 
 Declaration, must be one in every case, 141. 
 general rules relative to, 90-99. 
 when claim founded upon some exception, 92. 
 when founded upon a breach of contract, 92-96. 
 
 -V
 
 INDEX. • 185 
 
 Declaration, forms of, 158-161. 
 
 when for wrongs independent of contract, 
 
 96-Y, 124-6,127-31. 
 forms of, 161-3. 
 form of declaration, when the defendant "can not be 
 
 found," 174. 
 commencements and conclusions of, 97-9. 
 
 forms of, 153. 
 where persons suing in special characters, 174-5. 
 Deed, or other document, no profert or oyer of, 81-2. 
 
 form of plea, denying deed, 167. 
 need not be sworn to, 118. 
 Defence, formal, not required, 111, 143. 
 De injuria, replication of, shall not be used, 64-5. 
 the substitute, 66. 
 form, 172. 
 Demurrer, 55-60. 
 
 form of, 58, 75. 
 
 must be special for defects of substance, 57-8. 
 joinder in, 58-9. 
 
 admits the facts of the opposed pleading, 59. 
 upon, court considers the whole series of pleadings, 58. 
 effect of pleading over without, 60-1. 
 Denial, 62-72. 
 Departure, 84, 85. 
 Dilatory pleas, 142-3. 
 
 time for pleading, 173. 
 forms of, 173-4. 
 Discharge, plea in, 72-3. 
 Discontinuance, 106-7. 
 Duplicity, general doctrine of, under the old and the simplified 
 
 pleading, 133-40. 
 Ejectment, 22, 42, 43. 
 Evidence, under the old pleading, 62-3. 
 
 effect of the sim[)liQcation on the admissibility of, 
 
 47-8, 65, 68, 151-2. 
 must not be pleaded, 77. 
 
 matter, showing that a contract or deed is void or void- 
 able, or that a deed is an escrow, must be pleaded, 70-3. 
 Exception, how to declare on, 92. 
 
 U.
 
 186 INDEX. 
 
 Excuse, plea in, 64-6, T2-3. 
 Fictions, 78-9. 
 
 General issues, abolished, 62-65. 
 substitutes, 164-6. 
 
 non-assumpsit and non est factum, 68-72. 
 Husband and wife, 38. 
 Indebitatus assumpsit, as a form^^f declaring abolished, 
 
 69, 149-51. 
 implied promises can no longer be declared 
 
 on, 78, 149. 
 substitutes for indebitatus assumpsit, 151. 
 forms of, 153-4. 
 Inducement, 64, 87. 
 
 Injuries or wrongs to person, character and property, how to de- 
 clare on, 96-7, 124-6, 127-32. 
 forms of declarations for, 161-3. 
 Issue, what, 46, 53-5. 
 in fact, 55. 
 in law, 55. 
 Judgment, 98, 140. 
 
 non obstante veredicto, 141. 
 prayer of, 110, 143. 
 Joinder of causes of action in same suit, 41-4. 
 in demurrer, 58-9. 
 in issue, 115, 116, 117. 
 Jurisdiction, plea to, 142. 
 Jury, questions of fact decided by, 46. 
 
 of law, by the Court, 46, 107-8. 
 were originally witnesses, 124. 
 Justification, pleas in, 64, 66, 72-3. 
 Law, not to be alleged in pleading, 77. 
 
 matter of, not ti'aversable, 103. 
 Libel, mode of declaring in, 96-7. 
 
 form of declaration, 163. 
 Liberum tenementum, 
 
 plea of, 125. 
 Materiality, 117-8, 141-2. 
 Memorandum, 
 
 of plaintiff, 24-5, 31, 34. 
 of defendant, 27-8, 32. 
 Misnomer, 121-3. 
 
 ^
 
 INDEX. 187 
 
 Money Counts, simplified by prohibiting the statement of a pro- 
 mise, 149. 
 new plea, in place of non-assumj^sif, to, 149-50. 
 the scope of the money counts and the new plea, 
 
 150-2. 
 the money or common connt should not be used to 
 
 the exclusion of special counts, 152. 
 forms of, 153-4. 
 Motions, the mode for calling the attention of the Court to defects 
 of form, 144. 
 the form of, 144. * 
 
 Names of persons must be specified in writs, 23, 30. 
 
 in pleading, 121, 
 Negative pregnant, what, 79. 
 %i»New assignment, ll!".-20. 
 
 forms of, 172-3. 
 Nil debet, 150. . 
 Nil dicit, judgment by, 101. 
 Non assumpsit, 68-72. 
 Non est factum, 71-2, 118. 
 Non-suit, judgment of, 122-3. 
 "^Not guilty, 165-6. 
 
 the substitute for, 165. 
 forms of, 170. 
 Onerari non, 110. 
 
 Order of pleading, 54, 99, 100, 142. 
 Original writs, 21-2. 
 
 summons, 23-4. 
 replevin, 29-31. 
 Oyer, 81-2, 143. 
 ^ Payment, how pleaded, and in what cases, 112-15. 
 -, Parties to an action, 17. 
 joinder of, 36. 
 of plaintiffs, 36-9. 
 of defendants, 39-41. 
 Place, 123-4. 
 
 Pleading — common law and civil law jileading compared, 45-8. 
 rules and forms of, 40-50. 
 form, what, 51-2, 56. 
 i object of, 45-8, 53-5, 68, 76. 
 
 pur^iose of the simplification, 51, 53. 
 
 ")
 
 188 INDEX. 
 
 Pleading — Continued. 
 
 difference between the old and the simplified, 56, 
 6S-V2, lb, 86. 
 the fundamental rule of, 53-4. 
 the f^encral rule, 54. 
 the machinery of pleadincr. 55. 
 rules descriptive of, 55, 75. 
 rules for framinp; the machinery, 75-6. 
 rules applicable to all pleadings, 77, 90. 
 
 to the declaration only, 00-9. 
 ■to' pleadings subsequent to the de- 
 claration, 99-118. 
 to new assignment, 118-20." 
 rules making the issue certain, 190-33. 
 rules making the issue single, 133-40. ^' 
 
 of judgment, 140-1. 
 of repleader, 141-2. 
 abatement, 142-4. 
 motions, 144. 
 
 must be in writing and signed, 89. 
 must be entitled of the proper court, 89. 
 Pleas, only two forms of ; Traverse and Confession and Avoid- 
 ance, 54-5. 
 commencements of, 110-12. 
 no formal conclusion to, 111. 
 form of, 110-11. 
 short form of, 115. 
 must be in writing and signed, 89. 
 must be entitled of the proper court, 89. 
 defence, arising after suit, how pleaded, 112. 
 must answer the whole of what is adversely alleged, 100-6. 
 must not be too broad, 104-6. 
 
 any number of, may be pleaded, 1 08-10. See Special Pleas. 
 the new pleas prescribed, 164-5. 
 Possession, title of, how alleged in pleading, 127-30. 
 Praecipe, 24. 
 
 Prayer to the court, 64, 107-8. 
 of judgment, 110, 143. 
 Precludi non, 110. 
 Profert, 81-2. 
 Prolixity, 77.
 
 INDEX. ■ 189 
 
 Promise, express and implied, GS-'IB. 
 
 implied promise cannot be declared on ; the indebitatus 
 
 Assumpsit count being- abolished, 69, 71. 
 express promise must be stated in the declaration, TO. 
 
 See llonei/ Counts. 
 Promissory Xote, declaration on, 154. 
 Protestation, 102. 
 Quality or kind, 124-26. 
 Quantity and value, 126-7. 
 ^*Quare clausum fregit, 126. 
 Rebutter, 100. 
 Rejoinder, 99. 
 Repleader, 141-2. 
 Replication, 99, 110-1. 
 
 no formal conclusion to, 111. 
 forms of, IT 1-2. 
 Replevin, where it lies, 29, 30, 43, 19, 99. 
 writ of, 30-1. 
 returns to, 33. 
 can be renewed, 30. 
 how to bring an action of, 31-2. 
 how appearance to, 32. 
 
 allegation of title of possession sufficient in the declara- 
 tion, 128, 130. 
 where the defendant and the goods are in different 
 
 counties, 33-5. 
 form of declaration in, 161. 
 Repugnancy, 19, 80. 
 Returns — to summons, 26. 
 
 to replevin, 33, 35. 
 Reversionary interests, how declared on, 128-9. 
 
 forms of declarations, 162. 
 Sett-off, how pleas of, are to be construed, 115. 
 form of plea, 169. 
 
 \ Several counts, 137-8. 
 Several issues, 133, 136. 
 Several pleas, 109-10, 137-8. 
 Severance in pleading, 135-6. 
 Sham or tricky pleading, 81. 
 'NSimiliter, 116. 
 Singleness of issue, 133-40.
 
 190 INDEX. 
 
 Slander, 96-Y. 
 
 form of declaration, 162. 
 ^ Special issues, 68-Y2. 
 •"" "Special pleas, 
 
 all which could be pleaded under the old sj'stem still 
 available defences, 164; the new pleas in the place 
 of the general issues, 164-5. 
 Special traverse, 
 
 design of, 63-4. 
 
 substitute for, 67-8. ' ' 
 
 Summons, 21-4. 
 
 clerk bound to issue, 24. 
 may be renewed, 25-6. 
 service of, personal, 26. 
 returns to, 26. 
 Surplusage, 80. 
 Surrebutter, 100. 
 Surrejoinder, 100. 
 Suspension, plea in, 142. 
 Tender of issue, 116. 
 Testimony. See Evidence. 
 Time, 123. 
 
 Title, to what extent and how, it must be alleged, 127-131. 
 
 derivation of, when and how alleged, 131-3. 
 Titling, 24. 
 Traverse, 62-5. 
 
 direct traverse, 65-6. 
 indirect traverse, 66-8. 
 Trespass, 20, 41. 
 
 replication in, 64-6. 
 Trespass on the case, 20, 41. 
 replication in, 64-6. 
 Trover, 78-9. 
 Value, 126-7. 
 Variance, 122, 37, 39. 
 Venue, 97, 124. 
 
 Verdict shall not be for more than is alleged, 127. 
 Videlicet, 123. 
 Wife, 123. 
 -^"^Writs, original, only three ; 
 
 Summons, replevin, and ejectment, 21-2, 91.
 
 ERRATA, 
 
 Page 30, fourteenth line from the bottom, for " served, " read 
 renewed. Page 69, second line from the bottom, for " were," 
 read we. Page 97, ninth line from the bottom, for "comment," 
 read commencement. Page 139, fourteenth line from the top, 
 for " no," read do.
 
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 We annex a specimen of the Index. 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 I. Form and obligation generally. X. Protest. 
 
 (a) What is a Bill of Exchange. XI. Notice of dishonour. 
 
 (6) AVhat is a Promissory Note. (a) Notice by any party accrues 
 
 (f) Place of making. to benefit of all. 
 
 id) Place for payment. (6) Who entitled to notice, 
 
 (e) Parties to. (c) Due diligence in giving 
 
 (/) Other matters relating to. notice. 
 
 II. Alteration of. [d) Manner cf giving notice. 
 
 HI. The stamp. (e) Form of notice. 
 
 IV. The acceptance. (/) Proof of notice of dishonour. 
 
 V. Presentment for acceptance. [g) Wantof notice, how excused. 
 
 VI. Acceptance supra protest. • XII. Bankers. 
 
 VII. Transfer. (a) Liability, where taking lost 
 
 VIII. Presentment for payment. or stolen note. 
 
 [a] Generally. (6) Payment of forged bill or 
 
 (6) Time within which Bills, ' check. 
 
 Notes, and Checks, must (c) Paymentof checks and bills, 
 
 be presented. [d] Liability and duty in other 
 
 (c) Plo.ce at which presentment respects. 
 
 must be made. (e) Lien of bankers. 
 
 ((Z) The hours witliin which pre- (/) Interest. 
 
 eentment for payment [g] Appropriation of bills or 
 
 should be maile. notes. 
 
 [e] Days of grace. (//) Otlicr matters. 
 
 IX. Payment. XIII. Consideration. 
 
 (a) Restrictive indorsement. (a) lllcj^al consideration. 
 
 lb) Notice of application of bill (//) Want of consideration gen<J 
 
 to a particular account. rally. 
 
 c) Payment for honour. fc) Acc(mimo(lation ]mper. 
 
 d) Evidence of payment. \d) Proof of consideration.
 
 BILLS OF EXCnANGE, I. (a), (b). 
 
 {c) Pleadinjjjs. (/) Trover for lost or stolen 
 
 XIV. lleleuse of parties to bill or note. l>ill or note. 
 
 (a) Givinj:; time. (ff) Who may be sued. 
 
 (b) How acceptor or maker dis- (A) Affidavit to hold to bail. 
 
 charged. (/) Debt. 
 
 XV. Satisfaction of bill or note. [k) Trover. 
 
 XVi. Proceedings upon. (/) Pleadings. 
 
 (a) Wlio may sue. (/n) Evidence. 
 
 (b) Recovery where note or bill (/t) Competency of party to bill 
 
 overdue. or note to be witness. 
 
 (c) Recovery where bill or note {o) Amount recoverable. 
 
 lost or stolen. (p) When party may resort to 
 
 (d) Rccovcrybybona fide holder original consideration. 
 
 of lost or stolen note. {q) When recovery may be htui 
 
 (e) Recovery of proceeds of lost on common counts. 
 
 or stolen note or bill. XVIL Other matters. 
 
 I. Form /Vnb obligation generally. 
 (a) WuAT IS A Bill of Exciia.vge. 
 
 Instrument dra-s-n pavable on a contingency, not a bill. Palmer v. Pratt, *ix. 53S ; 
 2 King. 185. Ralh e. Sarell, svi. 422 ; I D. &, R. 33. 
 
 Instrument treated as a bill, where an obviously supplied omission is made. 
 Phipps V. Tanner, xxiv. G69 ; 5 C. & P. 4S8. 
 
 An order to pay money "provided certain terms are complied with," not aviilable 
 a> a bill. Kingston i\ Long, xxvi. 308 ; 4 Doug. 9. 
 
 The order of time in which the names of the drawer and acceptor of a bill are 
 placed upon it is immaterial. Molloy v. Delves, xix. 617 ; 4 C. & P. 492. S. C. xx. 
 194 : 7 Bing. 428. 
 
 Bill may be accepted and indorsed, before drawn. Schultz v. Astley, xxix. 055 ; 
 
 2 B. X. C. 544. 
 
 But a blank acceptance for a certain sum, altered by the drawer before drawing 
 iato a smaller sum, is not a (V/awing of the bill for the sum expressed in the accept- 
 ance. Baker v. Jubber, xxxix. 724 ; 1 M. & G. 212. 
 
 Words " value received" not essential to constitute a bill of exchange. White v. 
 Ledwick, xxvi. 454 ; 4 Doug. 247. 
 
 A paper containing a request for the payment of money, but not purporting to be 
 made by one having a right to call on the other to pay, is not a bill of exchange. 
 Little V. Slackford, xxii. 498 : 1 M. & M. 171. 
 
 There must be a drawer to a bill. Vyse v. Clarke, xxiv. 626 ; 5 C. & P. 403. 
 
 Instrument drawn, payable to drawer or order at a particular place, without being 
 addressed to any person by name, if afterwards accepted by one at the place where 
 made payable, may be declared upon as a bill of exchange. Gray v. Miliier, iv. 361 ; 
 8 Taun. "739. 
 
 Bill at sight is not a bill payable on demand, within exception in stat. 22 G. 3, c. 
 49. Jani?on v. Thomas, xxvi. 276 ; 3 Doug. 421. 
 
 Drawn payable ninety days after sight or when realized is not a bill within custom 
 of merchants. Alexander i\ Thomas, Ixxi. 332 ; 16 Q. B. 333. 
 
 Acceptance in blank for drawer and payee's name not a bill. Stoessiger v. Rail- 
 way. Ixxvii. 548 : 3 E. & B. 549. 
 
 '• Fifty-three days after date credit A. or order 500?. in cash on account of," signed 
 bv manatring director of company, is a bill of exchange. Ellison v. Collingridge, 
 l£wi. : 9'C. B. 570. " . 
 
 Dividend warrant not negotiable. Partridge v. Bank, Iviii. 396 ; 9 Q. B. 396. 
 
 Exchequer bills are negotiable passing by delivery. Brandao v. Barnett, liv. 518 ; 
 
 3 C. B. 519. 
 
 Statement of deposit of leases as securitj' in the body of the note does not affect 
 its negotiability. Fancourt v. Thorne, Iviii. 310; 9 Q. B. 311. 
 
 Instrument in form of note with address in the corner and accepted by that party, 
 may be treated as his acceptance or the note of the drawer. Llovd v. Oliver, Isxxiii. ; 
 L-i Q. B. 471. 
 
 (&) What is a Promissory Note. 
 
 Not necessary that a promissory note should be in itself negotiable. Rex v. Box, 
 \. 635 ; 6 Taun. 325. 
 
 Ii is sufficient that it is a note for the certain payme'Jt of a sum of money, whether 
 ae<:i'tiable or not. Ibid.
 
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