'^^i^'^eiij^^ r WONOUTH PORTLAND CEMENT OOMF^HX T THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW '•■■ I I ; ^ 3 / I I > / k >! I / / L'/ I ?^ F AN EXPOSITION OP TH8 PMCIPLES OF PLEADffiG UNDER THE CODES OF CIVIL PROCEDURE. By GEORGE L. PHILLIPS, LL. D. CHICAGO : CALLAGHAN AND COMPANY, 1896. CoPYRiaHT, 1896, BY GEORGE L. PHILLIPS. T P f43Zc PREFACE. The plan and purpose of this book are stated in the introduction. I shall here state the reasons for its prepara- tion and publication. My study of procedure, and my experience, at the Bar and upon the Bench, have satisfied me that a complete expo- sition, analytic and synthetic, in brief and convenient com- pass, of the basis, the philosophy, and the application, of the principles of pleading under the Reformed American Pro- cedure, is a desideratum in the literature of the law. The science of pleading has been neglected in legal literature, in legal instruction, and in the practice. Its neglect in the schools, and in the practice, is largely due to the want of a well- adapted text-book. The result is, that young men, upon their entrance into the profession, have not learned, and do not understand, the principles upon which the substantive law is to be applied to operative facts ; and in practice, the tendency has been to follow distinct provisions of the codes, literally, rather than to interpret and apply them as parts of an entire and scientific system. The over-fullness and prolixity of pleadings under the codes is proverbial ; it is a needless hindrance in judicial procedure, and is as reprehensible as it is needless. Exces- sive statement in pleading comes from conscious uncertainty as to what is requisite, and what is sufficient. The ideal code pleading is brief and simple ; but its brevity and sim- plicity come only from adherence to the scientific principles of the system. This needless fullness and prolixity can be avoided, and this characteristic simplicity, terseness, and brevity can be secured, only by an intelligent understanding of the true philosophy of the new procedure. lU 735726 IV PREFACE. The common-law system of pleading, in its finished state, was regarded as a marvel of inventive genius, a masterpiece of subtle refinement, and a model of logical exactness. It held high rank as a means of intellectual and legal discipline ; it was a leading topic in legal education ; and mastery of this legal technique was a mark of sound and thorough training. Not so with the reformed system. It is generally regarded as wanting in educational value ; it has low rank in the curricula of our law schools ; and thorough mastery of its principles is exceptional, even among lawyers of learn- ing and experience. The truth is, however, that the reformed system rests upon broad and rational principles ; that it is thoroughly scientific ; that its study is highly instructive and disciplinary ; and that thorough mastery of it by the pro- fession would expedite procedure, would elevate and dignify the practice, and would foster the exercise of care and pre- cision in the administration of justice. The profession has been amply provided with books of forms and precedents. These are helpful in their place, but they are too often followed without intelligent regard to the principles upon which the action or the defense should be placed. General forms may suggest matters for considera- tion, an order of statement, and modes of expression ; they can seldom be exact models in a particular case ; they do not teach the science of pleading, nor do they fortify the pleader for the new and ever-varying conditions that must at times confront him. A pleader should be able to separate operative facts from probative facts ; to determine from the operative facts the legal nature of the right involved, and of the injury done or threatened ; to distinguish between what is essential and what is superfluous in the statement of such right and the invasion thereof ; to determine the kind of remedy most available, and the persons to be made parties. He should not only know what is requisite, and what is sufiicient ; he should know why it is so, and why, upon principle, it should be so. A pleader thus fortified may well dispense with forms and precedents, and he may safely make them subservient in the statement of a right of action or a defense. PREFACE. y The liberality of our courts in allowing amendments of pleadings has done much to cultivate indifference both as to the pleadings in a cause, and as to the science of pleading. This indulgence of the courts makes inefficient pleaders ; it prolongs litigation, and loads our system of judicial alterca- tion with the odium of a delay that is really caused by departure from its principles. The new procedure has dispensed with authoritative forms and technical language, and requires each case to pro- ceed upon a plain statement of its operative facts, made in "ordinary and concise language." Some have mistaken this for a relaxation of care, method, and skill in pleading. And if we are to judge from the files of our courts, the notion obtains that the requirements of the new procedure may be satisfied by a rambling narration of evidential facts and legal conclusions, constructed without regard to per- spicuity, to sentential structure, the collocation of phrases, or the sequence of ideas. There could hardly be a greater mistake. It has led to much vagueness and uncertainty ; it has caused the courts much needless labor, litigants much needless expense, has prolonged litigation, and has some- times occasioned a miscarriage of justice. Analytical Jurisprudence — the scientific exposition of the nature and sources of rights and of law, and of the means whereby the law effects the conservation of rights — has made material progress in recent times, and is carrying its scientific generalizations into the various fields of positive law, and is furnishing bases for a more orderly and system- atic exposition of principles than has heretofore been pos- sible. In no department is such help more needed or more available than in an exposition of the principles of the reformed system of pleading ; yet there has been no attempt to make this advance in jurisprudence subservient in a methodical and scientific treatment of pleading. These considerations have induced me to attempt a scientific exposition, in brief and compendious form, of the basis, the philosophy, and the application, of the principles of pleading, old and new, embodied in, or contributory to, what is commonly called " Code Pleading." VI PREFACE. To gather from the mass of enactments and decisions the established principles of pleading, and to distribute them in clear synthetic order ; to trace the origin and development of these principles ; to illustrate their use in the application of substantive law to operative facts ; and to discover the philosophy of this procedure, — is a work as formidable as it is needful. I doubt not I have come short of its full accom- plishment ; but I indulge the hope that, in some degree, my labor may tend to restore the topic to its proper place as an educational branch of the law ; that it may help the student to an intelligent and comprehensive grasp of the subject ; that it may tend to ground the pleader upon reason and principle, instead of dogma and precedent ; and that it may contribute to accuracy and dispatch in judicial procedure. Geokgb L. Phillips. Cleveland, April, 1896. CONTENTS. INTRODUCTION. PART I. PHILOSOPHY OF PLEADING. CHAPTER I. sBcnas A General View op Pi^ading 7 CHAPTER II. Private Rights and Duties 14 1. Of the Nature of Private Rights 14 2. Classification of Private Rights 18 CHAPTER III. Correlation op Facts and Rights 21 CHAPTER IV. Of Reliep by Civil Action 23 CHAPTER V. Op the Cause op Action 29 CHAPTER VI. Of the Issue 34 PART II. HISTORY OF PLEADING. CHAPTER VII. Pbocedure Undeb the Roman Civil Law 40 vii yiii CONTENTS. CHAPTER VIII. SBonoir GENBaiAii View of Common-law Peoceduke 46 CHAPTER IX. General Divisions of Pleading at Common Law 51 1. Of the Earlier Forms 51 2. Of the Declaration 56 3. Of Pleas— Dilatory 58 4. Of Pleas— By Way of Traverse 61 5. Of Pleas — In Confession and Avoidance 69 6. Of Pleadings Subsequent to the Plea 76 7. Of Demurrers 79 CHAPTER X. Division of Actions at Common Law 87 1. Real and Mixed Actions 87 2. Actions in Form Ex Contractu 93 3. Actions in Form Ex Delicto 100 4. General View of Personal Actions 108 5. Additional Remedial Forms 113 CHAPTER XI. The Principal Rules of Pleading at Common Law 115 1. Rules for the Production of an Issue 116 2. Rules for Secvu-ing Materiality in the Issue 120 3. Riiles for Securing Singleness in the Issue 122 4. Rules for Securing Certainty in the Issue 126 5. Rules to Prevent Obscurity and Confusion 133 CHAPTER XII. Nature and Extent op Equity Jurisdiction 137 CHAPTER XIII. Conduct of a Suit in Equity , 142 CHAPTER XIV. The Pleadings IN Equity 148 CHAPTER XV. The Reformed American Procedure 159 CONTENTS. ix PART III. THE ORDERLY PARTS OF PLEADING. (Regular Parts.) CHAPTER XVI. SECmON The Complaint 169 1. OftheTitle 170 2. Of the Statement 177 3. Of the Prayer for Relief 218 4. Of the Verification 224 CHAPTER XVII. The Answer 227 1. Of Denials 229 2. Of New Matter 235 CHAPTER XVIII. The Reply 267 (Irregular Parts.) CHAPTER XIX. Motions 277 1. To Strike from the Files 278 2. To Strike out Redundant Matter 280 3. To Make Definite 283 4. To Separately State and Number 285 5. Waiver of Formal Defects 287 CHAPTER XX. Demurrers.: 289 1. General 291 2. Special 296 CHAPTER XXI. Amendments 309 1. OfRight 311 2. By Leave Obtained 312 8. Supplemental Pleadings 317 jj CONTENTS. PART IV. GENERAL RULES OF STATEMENT. CHAPTER XXII. SECnOM Rules Relating to Matters of Substance , 321 1. Of Matters to be Stated 322 3. Of Matters not to be Stated 341 CHAPTER XXIII. Rules Relating to Matters of Form 350 1. The Construction of Pleadings 351 2. The Manner of Statement 355 CHAPTER XXIV. Rules Relating to the Proofs 379 1. What May be Proved Under a Denial 381 2. Defensive Facts that Must be AUeged, in Order to be Proved 384 PART V. APPLICATION OF PRINCIPLES. CHAPTER XXV. Discovering a Right of Action 388 1. Actions Founded on Rights and Delicts 388 2. The Substantive Law that is Applicable 399 3. Proximate and Remote Causes of Injury 405 4. Privity as an Element of Rights of Action 415 5. Damage as an Element of Rights of Action 423 6. Divestitive and Exculpatory Facts 430 7. Distinguishing Rights of Action 438 CHAPTER XXVI. The Parties to an Action 449 1. Of Parties Plaintiff 450 2. Of Parties Defendant 453 3. Of the Joinder of Parties 455 CONTENTS. Xi CHAPTER XXVII. The Jurisdiction of the Court 461 CHAPTER XXVIII. Actions and Defenses 471 1. Actions for Breach of Contract 472 2. Actions for Torts 490 3. Actions for Equitable Relief 504 CHAPTER XXrX. OccASiONAii Incidents op Procedure 511 TABLE OF OASES. The references are to pages. A. Abadie v. Carrillo, 373. Abeles v. Cohen, 450. Abendroth v. Boardley, 183. Aberdeen v. Blackmar, 450. Acheson v. Miller, 91, 94. Acklen v. Acklen, 561. Adair v. New River Co., 488, 489. Adams v. Blankenstein, 520. Adams v. Clutterbuck, 326. Adams v. Dale, 376. Adams v. HoUey, 311. Adams v. Sherrill, 378, 510. Adams v. Waggoner, 455. Adams Exp. Co. v. Darnell, 390. Adams Exp. Co. v. Harris, 161. Addison v. Burt, 533. Adkins v. Hudson, 518. Agard v. Valencia, 538. Ahrend v. Odiorne, 323. Ains worth v. Bowen, 228. Akin V. Davis, 178, 190. Albrittin v. Huntsville, 336. Albro V. Lawson, 284. Alderman v. Finley, 336. Aldine Mfg. Co. v. Barnard, 440. Alexander v. Milwaukee, 366. Alexander v. Ry. Co., 421. Alger V. Johnson, 323. Allen V. Aguirre, 325. Allen V. Brown, 314. AUen V. Crofoot, 289 Allen V. Miller, 314. Allen V. Murray, 508. Allen V. Patterson, 338, 373. Allen V. Richard, 323. Allen V. Shackelton, 228. AUen V. Smith, 339. AUen V. State, 154. AUis V. Leonard, 310, 211. Allison V. Nanson, 396. Alpers V. Schamel, 345. Alpin V. Morton, 198. Alston V. Wilson, 344. Alton V. Ry. Co.,477. Amberger v. Marvin, 322. Am. B. H. Co. V. Gurnee, 277. Ammerman v. Crosby, 157. Am. Nat. Bk. v. Wheelock, 373. Anderson v. Mayers, 295. Anderson v. Tyson, 534. Andr. Co. v. Metcalf , 440. Andreas v. Holcombe, 378. Andrews v. Alcorn, 195, 198, 279, 377. Andrews v. Bond, 301. Andrews v. Herriot, 513. Andrews v. Jones, 325. Annapolis Co. v. Gantt, 437. Ansley v. Green, 155. Anson v. Anson, 484. Anthony v. Slaid, 433. Archer v. Archer, 451. Archer v. Romaine, 381. Argall V. Pitts, 201. Arguello v. Edinger, 323. Armstrong v. Dalton, 329. Armstrong v. Warner, 234. Arnold v. Potter, 430. xiii XIV TABLE OF CASES. The references are topages. Arthur v. Brooks, 359. Ashby V. White, 25, 406. Ashley v. Marshall, 230. Ashley v. Harrison, 432. Aspindall v. Brown, 386. Atty. General v. Foote, 336. Atwater v. Walker, 420. Auchmuty v. Ham, 179, 180. Audubon v. Excelsior Ins. Co., 516. Ault V. Zehering, 381. Aurora City v. West, 289. Austin V. Imus, 421. Avory v. Mead, 391. Ayer v. Ashmead, 485. Ayers v. Campbell, 293. Ayre v. Craven, 526. Axtel V. Chase, 544. B. Babbage v. Church, 210. Babcock v. Meek, 321. Baby v. Dubois, 337. Bachelder v. Brown, 481. Bailey v. Gas Co., 425. Bailey v. Irwin, 322. Bailey v. Lee, 542. Bailey v. Ry. Co., 459. Bailey v. Swain, 391, 524. Baines v. W. C. L. Co., 540. Baird v. Clark, 362, 363. Baker v. Berry, 376. Baker v. Bolton, 408. Baker v. Hawkins, 285. Baker v, HoUobaugh, 325. , Baker v. Kinsey, 234, 235. Baker v. Kistler, 364. Baker v. Ludlam, 353, 354. Baker v. Riley, 490. Baldwin v. Canfield, 284. Baldwin v. Nav. Co., 300. Baldwin v. W. R. R. Corp., 448. Bales V. Scott, 523, 524. Ball V. Fulton, 353, 372. Balue V. Taylor, 353. Bank v. AuU, 444. Bank v. Bassett, 300. Bank v. Bd. of Aid., 365. Bank v. Bush, 212. Bank V. City, 183. Bank v. Closson, 244, 246. Bank v. East Chester, 303. Bank v. Fuqua, 386. Bank v. Gaines, 186. Bank v. Hart, 100. Bank v. Hemingray, 234. Bank v. Hendi'ickson, 256,267, 289, 359, 387. Bank v. Hoeber, 374. Bank v. Hogan, 363. Bank V. Ins. Co., 315. Bank v. Jenkins, 557. Bank v. Kinner, 321, Bank v. Kuhnle, 155. Bank v. Lockwood, 289. Bank v. Milwaukee, etc., Mills, 457. Bank v. Newton, 178, 192, 194. Bank v. O'Rorke, 365. Bank V. Ry. Co., 188. Bank v. Reed, 204. Bank v. Richards, 255. Bank v. Shaw, 203. Bank v. Sherman, 270. Bank v. Street, 293. Bank v. Thompson, 542. Bank v. Treat, 162. Bank v. Webb, 186, 189. Bank v. Weyand, 226. Banning v. Bradford, 542. Bap. Ch. V. Ry. Co., 410. Barber v. Reynolds, 295. Barbour v. Bank, 234. Barholt v. Wright, 455, 535. Barker v. Hoff , 505. Barker v. Walters, 489. Barkman t. Hopkins, 517. Barlow v. Burns, 182. Barlow v. Scott, 200. Barnard v. Sherley, 250. Barnes v. Beloit, 487. Barnes v. Hathorn, 446. Barnes V. Ins. Co., 299. Barnett v. Meyer, 300, 332. Barney v. Steamboat Co., 521, TABLE OF CASES. XV 433. 179. Barrv. O'Donnell, 333. Ban- V. Shaw, 178. Barrett v. Crane, 163. Barry v. Carter, 181, 338. Barry v. Coombe, 334. Bartges v. O'Neil, 378, 474, Barthol v. Blakin, 341. Bartlett v. Farrington, 330. Bartlett v. Judd, 338. Barton v. Agricul. Soc. Bass V. Comstock, 886. BasseU v. Elmore, 536. Bassett v. Warner, 386. Bate V. Burr, 155. Bateman v. St. Ry. Co. Bates V. Rosekrans, 340. Bateson v. Clark, 367. Battel V. Matol, 334. Bauer V. Wagner, 317. Bayne v. Morris, 416. Beach v. Bank, 399. Beach v. Fulton Bank, 333. Beach v. King, 158, 340, 342. Beal V. Brown, 335. Beale v. Hayes, 374. Bean v. Green, 559. Bear v. Knowles, 369. Beard v. Beard, 419. Bearss v. Montgomery, 356. Beattie v. Lett, 314. Beau voir v. Owen, 330. Beck V. Allison, 399, 300. Becker v. Sweetzer, 315. Becker v. Washington, 341. Beckett v. Lawrence, 397. Beckwith v. MoUohan, 183, 183, Bedford v. Barnes, 386. Beebev. Marvin, 366. Beecher v. Conradt, 316. Beers v. Kuehn, 187, 508. Beers v. Shannon, 154. BeU V. Brown, 344. Bell V. Ellis, 473. Bell V. Hausley, 455. Bell V. Lesbini, 333. Bell V. McCoUoch, 516. Bellamy v, Burch, 585. The references are to pages. j Bellows V. Stone, 544. Bendernagle v. Cocks, 468. Benedict v. Seymour, 531. Benjamin v. Delahay, 376. Bennet v. Hood, 465. Bennett v. Button, 531. Bennett v. Preston, 884. Bennett v. Vade, 185. Bennett v. Whitney, 153, 154. Bennett v. Williams, 546. Benson v. Stein, 380, 855. Bently v. Dorcas, 308, 365. Benton v. Pratt, 437. Berg V. Milwaukee, 431. Berkshire v. Schultz, 878. Berry v. Carter, 387. Bethlehem Bor.v. Ins. Co., 440, Berthold v. Fox, 584. Betts v. Bagley, 380. Biays v. Roberts, 380. Bidwellv. Ins. Co., 191. Bidwell V. Madison, 333. Billigheimer v. State, 334. Billings V. Waller, 539. Billingslea v. Ward, 333. Birch v. Benton, 536. Birchell v. Neaster, 333. Bird v. Comm., 334. Bird V. Cotton, 159. Bird V. Mayer, 383. Bird V. Munroe, 335. Birdseye v. Smith, 186. Bishop V. Bishop, 384. Bishop V. Price, 337. Bitz V. Meyer, 530. Blachford v. Dod, 531. Black V. Chesser, 503. Black V. Richards, 844. Black V. Thompson, 315. Blackeley v. LeDuc, 371. Blackwell v. Montgomery, 157. Blair v. Claxton, 330. Blair v. Ry. Co., 178. Blair v. Rigley, 406. Blair v. Shelby, etc., Assn., 541, Blake v. Burley, 383. Blake v. Eldred, 311, 865. XVI TABLE OF CASES. The references are to pages. Blake v. Minkner, 295. Blake v. Sanderson, 444. Blake v. Tucker, 154. Blakemore v. Ry. Co., 424. Blakeslee v. Hughes, 527. Blanck v. Little, 322. Blasdell v. State, 333. Bledsoe v. Simms, 392. Block V. Ebner, 227. Bloomfield v. Ketcham, 547. Blossom V. Ball, 376. Blossom V. Barrett, 271. Blount V. Rick, 252. Bd. Comrs. v. Burford, 336. Board of Comrs. v. Huffman, 215. Board Ed. v. Hackmann, 292. Boaz V. Fate, 528. Boeckler v. Ry. Co., 182, 194. Bogardus v. Trial, 376. Bogart V. Ry. Co., 535. Bohn V. Devlin, 501. Bolen V. State, 559. Boiling V. Munchus, 323. Bolton V. Cleveland, 336. Bond V. Corbett, 373. Bond V. Perkins, 337. Bond V. Wagner, 241. Bonham v. Craig, 322. Booth V. F. & M. Nat. Bk., 382. Booth V. Mill Co., 447. Boots V. Canine, 374. Boreel v. Lawton, 230. Borradaile v. Brunton, 448. Bort V. Yaw, 179. Boston V. State, 337. Boston Ice Co. v. Potter, 443. Boston & S. G. Co. v. Boston, 413. Bostwick V. Meuck, 302. Bottorff V. Wise, 515. Bouchaud v. Dias, 515. Boulton V. Jones, 443. Bourland v. Nixon, 283. Bouslog V. Garrett, 505. Bouton V. Orr, 284. Bovy's Case, 346. Bo wen v. Aubrey, 264. Bowen v. Emerson, 373. Bowen v. Newell, 335, 422. Bowie V. Minter, 154. Bowles V. Doble, 297. Bowman v. Earle, 301. Bowman v. Holladay, 474, 508. Bowman v. Sheldon, 263. BoAvne v. Loy, 284. Boyd V. Dowie, 415. Boyd V. Hurlbut, 330. Boyer v. Clark, 233. Boyles v. Hoyt, 203. Bracket v. Wilkinson, 348. Bradbury v. Cronise, 363. Bradley v. Aldrich, 201. Bradley v. Fuller, 405, 423. Bradley v. Parkhurst, 542. Bradner v. Faulkner, 397, 532. Brady v. Brennan, 233. Brady v. Murphy, 518. Bragg V. Bickford, 203. Brainard v. Stilphim, 154. Brainerd v. Bertram, 488. Brake v. Payne, 278. Brakefield v. Anderson, 325. Branch v. Wiseman, 524. Brandt v. Albers, 381. Bray v. Marshall, 398. Brazil v. Isham, 382. Breckinridge v. Am. Cent. Ins. Co., 363. Brehen v. O'DonneU, 289. Brennan v. Ford, 281. Brett V. Univ. Soc, 393. Brewer v. Dyer, 441. Brewer v. Maurer, 441. Brewster v. Ry. Co. , 472. Brickett v. Davis, 528. Bridge Co. v. Mayer, 489. Bridges v. Paige, 393. Briggs V. Whipple, 336. Brigham v. Carlisle, 322. Bright V. Currie, 374. Bringham v. Leighty, 347. Brinkman v. Hunter, 186. Britton v. Hunt, 541. Broad St. Hotel Co. v. Weaver, 334. Brock V. Bateman, 297. TABLE OF CASES. xvu Brock V. Hidy, 537. Brock V. KBOwer, 322. Brocklen v. Smeallie, 508. Broder v. Ctonklin, 323. Broderick v. James, 411. Bronson v. Ins. Co., 285. Brook V. Irvine, 289. Brooks V. Ancell, 198. Brown v. Bank, 255. Brown v. Barnes, 321. Brown v. Benight, 155. Brown v. Bd. of Ed., 372. Brown v. Brooks, 431. Brown v. Buckingham, 229, 240. Brown v. Connelly, 531. Brown v. Eaton, 537. Brown v. Galena, M. & S. Co., 290. Brown v. Harmon, 386. Brown v. Kendall, 404. Brown v. Kimmel, 506. Brown v. Lake, 467. Brown v. Leigh, 298, 299. Brown v. Martin, 281. Brown v. Min. Co., 295. Brown v. Mott, 547. Brown v. Perry, 373. Brown v. PhUlips, 339. Brown v. Ry. Co., 267. Brown v. Ryckman, 356. Brown v. The G. M. & S. Co., 351. Brown v. Treat, 473. Brown v. Tucker, 289. Brown v. Webber, 180. Brownell v. Flagler, 457. Brownfield v. Weicht, 500. Bruce v. Burr, 228. Bruck V. Tucker, 226, 391. Bruckman v. Taussig, 380. Brumagim v. Bradshaw, 337. Brunaugh v. Worley, 523. Brundage v. Briggs, 546. Brundage v. Miss. Soc. , 542. Brunsden v. Humphrey, 466. Brutton v. The State, 333. Bryant v. Bryant, 265. Buchanan v. Comstock, 302. Buck V. Buck, 483. The references are to pages. Bucki V. Cone, 340. Buckingham v. Buckingham, 283. Buckingham v. McCracken, 553. Buckinghouse v. Gregg, 337. Buckley v. Buckley, 302. Buckner v. Davis, 376. Budd V. Hiler, 439. Budd V. Kramer, 367. Buddecke v. Ziegenhein, 500. Buehler v. Reed, 506. Buel V. Boughton, 440. Buel v. Ry, Co., 430. Buford V. N. Y. Life Ins. Co., 315. Buhne v. Corbett, 245. Bldg. Assn. V. Clark, 208, 256, 36& Bldg. Assn. V. Childs, 539. Bulger V. Roche, 331. Bulkley v. Iron Co., 283. BurdeU v. Burdell, 302. Burdett v. Greer, 341. Burdette v. Corgan, 495. Burdick v. Cheadle, 425. Burdick v. Worrall, 534. Burhaus v. Squires, 198. Burke v. Water Co., 211. Burley v. Bank, 211. Bumes v. Crane, 280. Burnham v. Milwaukee, 385. Bums V. Ash worth, 288. Bums V. People, 341. Burns v. Simpson, 375, 377. Bumside v. Grand Trunk Ry. O0i>» 353. Burr v. Beers, 441. Burrage v. Melson, 171. Burrows v. March, etc., €ras Co., ■426. Burrows v. Miller, 284. Burt V. Brigham, 162. Burt V. Wilson, 323. Burtis V. Thompson, 416. Burton v. White, 376. Bush V. Prosser, 206. Bush V. Wick, 520. Butcher v. Bank, 157, 380. Butler V. Church, 204, 270. Butler V. Edgerton, 315. XVIU TABLE OF CASES. Butler V. Kent, 433. Butler V. Lawson, 271. Butler V. Mason, 172, Butler V. Paine, 297. Butler V. Robinson, 335. Butler V. Wentworth, 247. Buttemere v. Hayes, 322. Butterfield v. Hartshorn, 441. Button V. McCauley, 396. Byxbie v. Wood, 473, 481. c. CahiU V. Bigelow, 325. Caldwell v. Auger, 399. Caldwell v. Briggerman, 394. Calhoun v. Hallen, 211. Callahan v. Loughran, 351. Callison v. Little, 485. Calvin v. State, 292, 375, 377. Cameron v. Mount, 424, 436. Camp V. Wilson, 189. Campbell v. Cross, 082. Campbell v. Jones, 523. Campbell v. Nichols, 421. Campbell v. Perkins, 473. Campbell v. Routt, 240, 376. Canal v. Wright, 472. Canal Co. v. Snow, 288. Canal Co. v. Webb, 291. Cane v. Crafts, 382. Canefox v. Anderson, 478. Canfield v. Tobias. 347, 348. Cannon v. Alsbury, 520. Capuro V. Ins. Co., 221. Carey's Appeal, 418. Carleton v. Bickford, 513. Carman v. Ry. Co., 459. Carmichael v. Argard, 299. Carnegie v. Morrison, 441. Carr v. Bosworth, 365. Carroll v. Minn. Val. Ry. Co Carroll v. Paul, 373. Carroway v. Anderson, 321. Carry v. Company, 408. Carslake v. Mapledoran, 525. Carson v. Cook, 278. The references are to pages. Carter v. Mills, 490. Carter v. Towne, 429, 434. Carthy v. Garraghty, 195. Cary v. Wheeler, 271. Case V. Barber, 321. Case V. Mobile, 335. Casey v. Mann, 338. Cassady v. Scallen, 537. Castua V. Sumner, 314. Cate V. Oilman, 265. Cates V. McKinney, 171. Cathcart v. Peck, 264. Catlin V. Pedrick, 182, 198, 279. Cent. Bk. v. Veasy, 517. Central Mills Co. v. Hart, 444. Chace v. Hinman, 450. Chace v. Traflford, 505. Challen v. Cincinnati, 553. Chamberlin v. Ry Co., 270. Chamberlin v. Scott, 473. Chambers v. Nicholson, 542. Champion v. Vincent, 407. Champlin \. Parish, 322. Chapman v. Chapman, 208. Chapman v. Robinson, 420, Chapman v. West, 538. Chase v. Dow, 420, 421. Cheever v. Wilson, 418, 419. Cheyney v. Arnold, 519. Cheyney v. Fisk. 341. Chickering v. Brooks, 322. Childs V. Childs, 484. Chilson v. Jennison, 523. Choen v. State, 154. Christmas v. Russell, 514. Christy v. Perkins. 302. Church V. Mumford. 473. Church V. Ry. Co., 173, 333. ChurchiU v. Hunt, 450, 451. Cincinnati v. Cameron, 304. Cin., etc., Co. v. Case, 554. 457. City Bank v. Perkins, 314. City of Solomon v. Hughes, 337. Claflin V. Reese, 366. Claflin V. Taussig, 347. Clarence v. Marshall, 445. Clark V. Barnard, 24, 452, 453. TABLE OF CASES. XIX TTie references are to pages. Clark V. Chambers, 434. Clark V. Clark, 297. Clark V. Dales, 318. Clark V. Dillon, 351. Clark V. Goodwin, 511, Clark V. Locomotive Works, 455. Clark V. Lovering, 280. Clark V. Rowling, 380. Clark V. Wise, 548. Clarke v. Huber, 398. Clary v. Marshall, 325. Clay V. Edgerton, 314, 353. Clay Co. V. Simonson, 212. Claypool V. Jaqua, 250. Clegg V. Dearden, 471. Clements v. Moore, 416. demons v. Davis, 300. Clendennen v. Paulsel, 473. Cleveland v. Ry. Co., 427. Clink v. Thurston, 345, 395. Clive V. Beaumont, 199. Cloon V. Ins. Co., 271, 287. Clossen v. Staples, 530. Cloud V. Greasley, 323. Clough V. Hosford, 444. Coal Co. V. Sanita Assn., 363. Coal Co. V. Schaefer, 558. Cobb V. Lucas, 154. Cobb V. Ry. Co., 270. Coe V. Lindley, 183, 376. Coe V. Rankin, 450. Coffee V. Williams, 505. Coffin V. Secor, 330. Cogswell V. Murphy, 179. Cohn V. Husson, 252. Coit V. Skinner, 300, 332. Coit V. Starkweather, 154. Cole V. Reynolds, 488. Colegrove v. Ry. Co., 487. Coleman v. Bunce, 227. Coleman v. Hiler, 442. Coleman v. Whitney, 479. Coleman v. Wooley, 443. Coles V. Kelsey, 328, 330. Colglazier v. Colglazier, 322, 353, 354. Collart V. Fisk, 366. College V. Cleveland, 454. Collins V. Rogers, 239. CoUisv. Selden, 425. Collyer v. Collyer, 444. Colt V. Stewart, 234. Combs V. Watson, 172, 280, 338. Com. Bank v. Pfeiffer, 354. Com. V. Donovan, 155. Com. V. Mehan, 155. Com. V. Stone, 155. Com. V. Todd, 237. Comrs. V. Plumb, 469. Conway v. Wharton, 345. Cook V. Chase, 287. Cook V, Cook, 526. Cook V. Dry Dock Co., 425. Cook V. Litchfield, 384. Cook V. Soule, 327. Cook V. Smith, 359. Cook V. Warren, 510. Cooke V. Tallman, 336, 887. Cooper V. Ins. Co. , 544. Cooper V. Jackson, 220. Cooper V. Mcjunkin, 409. Cooper V. Reynolds, 492, 493. Cope V. Alden, 420. Corbin v. Knapp, 302. Cord V. Hirsch, 541. Cork V. Baker, 519. Comrs. Canal Fund v. Perry, 479. Commrs., etc. v. Huffman, 533. Comp. Co. V. Ins. Co., 284. Comstock V. Hier, 439. Conaway v. Gore, 544. Conboy v. Iowa City, 337. Conger v. Johnston, 218. Conger v. Parker, 238. Conkey v. Hopkins, 451. Conklin v. Barton, 284. Conn V. Rhodes, 202. Conner v. Bean, 450. Conner v. Comstock, 523. Connor v. Bd. of Ed., 202. Conoughty v. Nichols, 366, 369. Conway v. Day, 561. Cornelius v. Kessel, 229. Cornwell v. Haight, 316. XX TABLE OF CASES. ITie references are to pages. Corry v. Campbell, 249, 346. Corry v. Gaynor, 201, 385. Cosby V. Powers, 157. Coster V. Mayor, 441. Cottle V. Cole, 221, 313, 314, 393, 478. Counoss V. Meir, 212. County of St. Charles v. Powell, 329. Courson v. Courson, 470. Co wart V. Perrine, 331. Cox V. Delmas, 551. Cox V. Esteb, 552. Cox V. Fenwick, 444. Cox V. Jordan, 252. Cox V. Joseph, 451. Cox V. Plough, 317. Cozine v. Graham, 323. Crabtree v. Banks, 231. Cracraft v. Cochran, 468. Cragin v. Lovell, 226. Craig V. Cook, 198. Craig V. Heis, 228. Craig V. Vanpelt, 325. Craigin v. Lovell, 182. Grain v. Petrie, 433. Ciam V. Ry. Co., 535. Cramer v. Lovejoy, 186. Cramer v. Oppenstein, 186. Crane v. Deming, 280. Crane v. French, 331. Crane v. Lipscomb, 338. Crane v.Ry. Co., 533. Cranston v. Smith, 321. Crawford v. Satterfield, 367, 368, 376, 378. Cress V. Blodgett, 441. Crews V. Cleghom, 516. Cribb V. Adams, 422. Crippen v. Thompson, 450. Crisman v, Heiderer, 231. Crist V. Burlingame, 351. Crofoot V. Moore, 451. Croghan v. Spence, 542. Crook V. Bank, 474. Crookshank v. Gray, 183. Cropsey v. Sweeney, 382. Crosby v. Home Co., 444. Cross V. Del Valle, 231. Cross V. Everts, 321. Crouch V. Kerr, 138. Cruger v. Halliday, 340. Cruger V. Ry. Co., 339. Cubberly v. Cubberly, 441. Culligan v. Studebaker, 381. Culver V. Rogers, 202, 301. Gumming v. Shand, 407. Ctunmins v. Gray, 289. Cunningham v. E. & F. H. Ry. Co., 214. Cunningham v. Judson, 443. Cunningham v. Ry. Co., 459, 460. Curran v. Curran, 219, 252. Currie v. Cowles, 226. Currier v. Rosebrooks, 473. Curry v. Lackey, 376. Curtain v. Somerset, 425. Curtis V. Barnes, 233. Curtis V. R. R., 448. Curtis V. Richards, 366. Curtis V. Sprague, 314. Cushman v. JeweU, 300. Cutting V. Lincoln, 212, 344. Cutting V. Massa, 381. D. Dacosta v. Davis, 326. Dakin V. Ins. Co., 300. Dale V. Grant, 433. Dale V. Turner, 398. Dale V. Wilson, 334. Dallas V. Fernan, 503. Dallas Co. v. Mackenzie, 278. Damon v. Damon, 191. Damwert v. Osbom, 418. Daniel v. Morrison, 231. Daniels v. Andes Ins. Co., 379. Daniels v. Ballantine, 434. Davany v. Eggenhoflf, 363. Davenport v. Short, 329. Davenport Co. v. City of DaveQf port, 219. Davidson v. King, 278. TABLE OF CASES. XXI The references are to pages. Davidson v. Nichols, 429. Davis V. Bonar, 359. Davis V. Calloway, 440. Davis V. Choteau, 271. Davis V. Davis, 399. Davis V. Guamieri, 428, 438, 533. Davis V. Henry, 538. Davis V. Hines, 172. 291, 330. Davis V. Lambertaon, 463. Davis V. Mathews, 67, 529. Davis V. Robinson, 182. Davis V. Warfield, 392. Dawe V. Morris, 423. Dawson v. Callaway, 829. Dawson v. DiUon, 252. Dawson v. Ellis, 325. Dawson v. Vaughan, 283. Day V. Day, 548. Day V. Owen, 521. Day V. Wamsley, 249, 392. Dayton v. Pease, 453. Dayton v. Williams, 321. Dayton Ins. Co. v. Kelly, 378. DeAnnond v. Bohn, 284. Deatrick v. Defiance, 345. DeBolt V. Carter, 278. Decker v. Parsons, 301. DeDausure v. Gaillard, 24. DeForrest v. Butler, 264, 267. Deichmann v. Deichmann, 537. DeLaGuerra v. Newhall, 382. Delany v. Reade, 516. Delaplaine v. Lewis, 484, 542. Dennis v. Snell, 297. Denten v. Logan, 398. Denton v. Danbury, 297, 501. Derby v. Gallup, 247. Derby v, Phelps, 519. De Saussure v. Gaillard, 452, 453. Desmond v. Brown, 411. DeSobry v. Nicholson, 241. Devlin v. Mayor, 443. Devoe v. Brandt, 254. Devol V. Mcintosh, 441. Devoss V. Gray, 161 , 296. Devries v. Warren, 233. DeWitt V. Porter, 373. DeWitt V. Swift, 274. De Wolf V. Johnson, 419. Deyo V, Morss, 298. Dezengremel v. Dezengremel, 328. Dial V. Holter, 525. Dial V. Reynolds, 542. Dick V. Ry. Co., 549. Dickenson v. Breeden, 334, 337. Dickerson v. Derrickson, 315. Dickinson v. Dickey, 548. Dietrich v. Koch, 226. Dixon V. Ahern, 444. Doan V. Holly, 179. Dobson V. Pearce, 216. Dodge V. Coflln, 380. Dodge V. Colby, 287. Dodge V, Perkins, 412. Doggett V, Richmond, 434. Doherty v, Holliday, 540. Dolcher v. Fry, 315. Dole V. Burleigh, 262. Doll V. Feller, 162. Don V. Lippman, 331. Donald v. St. Louis, etc., Co., 547. Donne v. Lewis, 561. Doran v. Cohen, 465. Dorr V. McKinney, 182. Dorr V. Mills, 266. Dorrington v. Meyer, 203, 367. Douglass V. Clark, 450. Douglass V. Grant, 544. Dounce v. Dow, 227. Dovan v. Diiismore, 356. Downer v. Chesebrough, 326. Downer v. Read, 212. Downer v. Staines, 261, Downey v. Dillon, 529. Downey v. Whittenberger, 388. Doyle V. Franklin, 348. Doyle V. Ins. Co., 378. Draining Co. v. Brown, 278. Draper v. Moore, 301. Dreutzer v. Lawrence, 284. Drew V. Person, 201. Drinkwater v, Dinsmore, 460, 4621 Driscoll V. Dunwoody, 391. Drury v. Clark, 542. XXll TABLE OF CASES. The references are to pages. Dubois V. Campau, 331. Dubois V. Hermance, 315. Duflfy V. O'Donovan, 323. Dull V. Bricker, 374. Dumont v. Williamson, 313, 314. Dunckel v. Dunckel, 537. Dunlap V. McNeil, 441. Dunlap V. Robinson, 295. Dunlap V. Snyder, 396. Dunn V. Gibson, 280. Dunn V. Ry. Co., 271. Dunning v. Thomas, 186. Duppa V. Mayo, 320, 321. Dupuis V. Thompson, 292. Dupuy V. Strong, 285. Dupuy V. "VVurtz, 418. Durant v. Gardner, 188. Durant v. Rogers, 322, 323. Durbin v. Fisk, 255. Durch V. Chippewa Co. , 264. Durham v. Bischof, 441. Dustan v. Mc Andrew, 508. Duval V. Davey, 396, 528. Dwiggins v. Clark, 241. Dye V. Dye, 510. Dye V. Mann, 451. Dyer v. McPhee, 297. Dyerv. Ry. Co., 534. Dyer v. Scalmanini, 399. Dyett V. Pendleton, 230. Dyson v. Ream, 392. E. Earle v. Scott, 153. Easter v. Severin, 544. Eastham v. Anderson, 325, Eaton V. Alger, 314. Eaton V. George, 516. Eaton V. Wooly, 227. Eavestaff v. Russell, 218. Eberly v. Rupp, 530. Eceleston v. CUpsham, 485. Ecker v. Bohn, 321. Eckert v. Binkley, 302. Edelin v. Clarkson, 324. Eden v. Ey. Co., 408. Edgerton v. Page, 230. Edie V. East India Co., 334. Edmiston v. Edmiston, 162, 276, 380. Edmondson v. Phillips, 208. Edmonson v. Kite, 444. Edwards v. Albrecht, 385. Edwards v. Edwards, 539. Edwards v. Griffiths, 500. Edwards v. HeUings, 381. Edwards v. Lent, 366. Egan V. Tewksbury, 377. Eldridge v. Bell, 280. Ella V. A. M. U. Express Co., 440. EUenger's Appeal, 332. EUer V. Lacy, 375. Elliott V. Lawhead, 494. Elliott V. Thomas, 322. EUis V. Eastman, 334. Ellis V. Keller, 561. Ellis V. Ry. Co., 162. Elmore v. Sands, 521. Ehnquist v. Markoe, 315. Elting V. Vanderlin, 321. Elton V. Markham, 366. Elwee V. Hutcliinson, 364. ElweU Y. Skiddy, 230. Elwood V. Flannigan, 334. Embry v. Palmer, 187. Emery v. Pease, 201. Emigh V. Ry. Co., 438, 478. EmUy, The, 188. Emmitt v. Brophy, 441. Emslie v. Leavenworth, 373. Engle V. Bugbee, 217, 251, 360. English V. Foxall, 200. Eq. Ac. Ins. Co. v. Stout, 164. Erb V. Perkins, 241. Ereskine v. Murray, 334. Ervin V. Ry. Co., 302. Eschv. Ins. Co., 299. Espiona v. Gregory, 208. Essex V. Ry. Co., 265. Estabrook v. Messersmith, 278. Estes V. Farnham, 367. Etcheborne v. Ayzerais, 399. Etheridge v. Vernoy, 542. Ettlinger v. Ry. Co., 480, 541, TABLE OF CASE8. XXlll Tlie references are to pages. Etz V. Wheeler, 381. Eureka I. & S. Wks. v, Bresnahan, 391. Evans v. Gee, 293. Evans v. Miller, 440. Evans v, Paige, 550. Everett v. Conklin, 188, 286. Everett v. Drew, 344. Everett v. Lockwood, 364. Everett v. Waymire, 278, 279, 286. Everitt v. Wagmire, 198. Eversole v. Moore, 234. Ewing V. Pattison, 239. Ewing V. Reilly, 450. Fsesi V. Goetz, 192. Fair v. Philadelphia, 454. Fales V. Hicks, 3G6. FaUs Co. V. Bridge Co., 211. Fanning v. Hib. Ins. Co., 382, 518. Fanson v. Linsley, 440. Faribault v. Hulett, 333. Faris v. Hoberg, 533. Farley v. Lincoln, 473. Farrar v. Triplett, 292. Farrington v. Payne, 471. Farris v. Jones, 182. Farris v. Merritt, 153. Farron v. Sherwood, 373, 382. Faulks V. Kamp, 266. Fauson v. Linsley, 385. Fears v. Albea, 156. Featherson v. Norris, 284 Feev. Iron Co., 276, 495. FeUs v. Vestvali, 373. Fentv. Ry. Co., 427. Ferguson v. Arnow, 530. Ferguson v. Carter, 515. Ferguson v. Gilbert, 185, 189. Ferguson v. Ramsey, 393. Ferguson v. Troop, 262. Fergiison v. Tutt, 251. Fern v. Vanderbilt, 185. Ferreira v. Depew, 236. Ferrill v. Mooney, 440. Ferris v. Johnson, 249, 346. Ferris v. Purdy, 315, Person v. Drew, 289. Fetter v. Beale, 471. Fewster v. Goddard, 364. Field V. City, 445. Field V. Hurst, 271. Field V. Ry. Co., 427. Filer V. Ry. Co., 430. Finch V. Finch, 261. Fink V. O'Neill, 329, 330. Finley v. Brown, 292. Finley v. Hayes, 271. Finley v. Quirk, 363, 397. Fish V. Folley, 470. Fisher t. Purdue, 547. Fisher v. Scholte, 291. Fisk V. Newton. 520. Fisk V. Tank, 230, 469. Fitch V. Bunch, 363. Fitzgerald v. Hay ward, 473. Fitzgerald v. Northcote, 409. Fitzhugh V. Wiman, 524. Fitzpatrick v. Gebhart, 298. Fitzsimnions v. Ins. Co., 219. Flag V. Baldwin, 420. Flanders v. McVickar, 361. Fleet V. Youngs, 154. Fleischman v. Bennett, 468. Fleming v. Mershon, 487. Fleming v. People, 334. Fletcher v. Coombs, 561. Flood V. Reynolds, 366. Floyd V. Patterson, 188. Flynn v. Bailey, 177. Foderty v. Jordan, 211. Poland V. Johnson, 397. Foley V. Addenbroke, 485. Foley V. Alkire, 2o7. Follet V. Heath, 237. Folsom V. Underhill, 448. Foot V. Bronson, 487. Foote V. Sprague, 202. Force v. Warren, 411. Ford V. Babcock, 332. Ford V. Mattice, 185. Foreman v. Bigelow, 353. XXIV TABLE OF CASES, 77i« references Forrest v, Butler, 358. Fortescue v. Holt, 359. Foss V. Hildreth, 411, 527. Foster v. Busteed, 515. Foster v. Hazen, 333. Foster v. Stewart, 439. Fountaine v. Bush, 323. Fowle V. New Haven, 471. Fowler V. N. Y. Indem. Ins. Ck)., 343. Fox V. Althorp, 472, Foye V. Patch, 391. Frambers v. Risk, 454. Francis v. Edwards, 226. Francis v. Schoellkopf , 407. Frank v. Irgens, 315. Franklin v. Talmage, 154. Frasier v. Williams, 363. Freas v. Englebrecht, 292. Freeland v. McCullough, 182. Freeman v. Carpenter, 241. Freer v. Denton, 184. Frick V. White, 233. Friermuth v. Friermuth, 373. Frink v. Potter, 430. Frisch v. Caler, 359, 360, 363. Fritz V. Barnes, 202, 204, 261. Frixen v. Castro, 537. Frost V. Knight, 416. Fry V. Bennett, 212, 318, 396. Frye v. Prentice, 449. Fuggle V. Hobbs, 292. Fullam V. Steams, 406. Fuller V. Stebbins, 561. Fuller V. Steiglitz, 233. FuUerton v. McCurdy, 537. Fulton V. Stuart, 444. Fultz V. Wycoff , 426. Funk V. Davis, 158. Furgison v. State, 376. Furnas v. Durgin, 451, 452. G. Gage V. Lewis, 376. Gaines v. Ins. Co., 208. Gale V. Capem, 218. Galligan v. Fannan, 252. are to pages. Gallup V. Ry. Co., 230. Gallway v. Marshall, 525, 526. Galpin v. Fishburae, 561. Gralpin v. Page, 514. Gandell v. Pontigny, 474. Gandolfo v. State, 559. Gans v. St. Paul Ins. Co., 899. Garard v. Garard, 270. Gardner V. Armstrong, 321. Gardner v. Clark, 241. Gardner v. Cleveland, 450. Gardner v. Kraft, 153. Gardner v, Locke, 266. Gamer v. McCullough, 339, 523. Garrett v. Love, 228. Garvin v. Wells, 335. Gas Co. V. San Francisco, 866, Gaston v. Frankum, 199. Gatch V. Simkins, 498. Gavin v. State, 560. Gay V. Gay, 234. Gay V. Payne, 510. Gay V. Pine, 378. Gay V. Stancell, 515. Gaylord v. VanLoan, 331. Gebrie v. Mooney, 219. Gennings v. Norton, 450. George v, McAvoy, 203. Getty V. Hudson, etc., Co., 286. Getty V. Ry. Co., 298, 299. Gibbon v. Dougherty, 302, Gibbons v. Pepper, 24, 404. Gibbs V. Nash, 323. Gibson v. Culver, 520. Gibson v. Garreker, 555. Gibson v. People, 341. Giddings v. Barney, 195. Gifford v. Corrigan, 441. Gilbert v. Loberg, 265. Gilbert v. York, 275, 380. GUchrist v. Gilchrist, 300, 332. Gilchrist v. Kitchen, 297. GUchrist v. Moore, 523. Gill V. Rice, 398. Gill V. Young, 297. Gillam v. Sigman, 288. Gillett v. Fairchild, 340. TABLE OF CASES. XXV The references are to pages. GUlett V. Freganza, 201, 385. Gillett V. HiU, 332. Gillett V. Robins, 297. Gillilan v. Spratt, 516. GiUUand v. SeUers, 493. Gilmore v. Norton, 267. Gilmore v. Wilbur, 439. Gilpin V. Wilson, 229, 240, 241. Giraud v. Beach, 278. Girons v. State, 155. Givens v. Wheeler, 298. Glass V. Hulbert, 544. Glen V. WaddeU, 487. Godard v. Gray, 512. Goddard v. Benson, 381. Goddard v. Sawyer, 420. Godfrey v. Godfrey, 501. Goebel v. Hough, 230. Goldberg v. Utiey, 180, 182, 199. Goldburger v. Utley, 269. Golden v. Manning, 520. Goldsmith v. Sawyer, 393. Goodell V. Blumer, 366. Gooding v, McAllister, 191. Goodman v. Gay, 261. Goodman v. Pocock, 474. Goodnight v. Goar, 278. Goodrich v. Brown, 335. Goodwin v. Girffis, 440. Gookin v. Sanborn, 332. Gordon v. Culbertson, 292. Gordon v. Bruner, 234. Gordon v. Madden, 322. Gormley v. Mcintosh, 500. Gould V, Evansville, etc., Ry. C!o., 515. Gould V. Glass, 154, 158. Gould V. Lasbury, 218. Gould V. Rumsey, 297. Gould V. Stafford, 295. Gould V. Thompson, 444. Gould V. Williams, 264. Gourlay v. Hutton, 300, 832. Graham v. Lynn, 561. Graham v. Machado, 377, 510. Graham v. Martin, 519. Grain v. Aldrich, 479. Grand Lodge, etc., v. Jesse, 553. Grandy v. McCleese, 509. Granger v. Granger, 83. Grannis v. Hooker, 372. Gratan v. Wiggins, 329. Grattan v. Appleton, 418. Graves v. Spier, 201. Gray v. Bowles, 500. Gray v. Brown, 299. Gray v. Dougherty, 537. Gray v. Gray, 515. Gray v. Kendall, 338. Gray v. Robinson, 561. Gray v. Ryle, 290, 495. Green v. BeU, 227. Green v. Gilbert, 373, 474, 508. Green v. Green, 288. Green v. Jones, 537. Green v. Nunnemacher, 179. Green v. Ry. Co., 408, 520. Green v. Saddmgton, 325. Greene v. Dodge, 314. Greenfield v. Ins. Co., 186, 211, 267, 506. Greenough v. Smead, 314. Greer v. Covington, 366. Gregg V. Hamilton, 538. Gregory v. Gregory, 240. Gridley v. Gridley, 441. Griffin v. Ry. Co., 392, 524. Griffiths V. Eyles, 218. Griffiths V. Henderson, 278. Griggs V. Fleckenstein, 434, 457. Grinde v. Ry. Co., 533. Griswold v. Ry. Co., 521. Grove v. Kansas, 290. Grover & B. M. Co. v. Radcliffe, 514. Groves v. Tallman, 345. Grubb V. Salt, 519. Guernsey v. Ins. Co., 192, 194. Guille V. Swan, 405, 426. Guinard v. Heysinger, 155. Gunderson v. Thomas, 353, 484. Gutridge v. Vanatta, 158. Gwaltney v. Cannon, 382. Gwynn v. McCauley, 323. XXVI TABLE OF CASES. The references are to pages. H. Haas V. Shaw, 256. Hackett v. Bank, 299. Haddix v. Wilson, 234. Haddow v. Lundy, 302. Hadley v. Baxendale, 447. Hagan v. Burch, 398. Hagely v. Hagely, 292. Hailes v. State, 334. Haire v. Baker, 238, 283. Hale V. Bank, 2^8. Hale V. Walker, 221. Hall V. Cheney, 522. Hall V. Cresswell, 450. HaU v> Gilmore, 473. Hall V. Hall, 463. Hall V. Marston, 441. HaU V. Mobley, 501. Hall V. Nelson, 541. HaU V. Odber, 513. HaU V. Olney, 364. HaU V. Packham, 439. Hallam v. Jacks, 497, 549. Hallett V. HaUett, 489. Hallock V. MUler, 526. Ham V, Greve, 221. Ham V. HiU, 451. Hambly v. Trott, 385, 439. Hames v. Robinson, 523. Hamil v. Thompson, 201. Hamilton v. Hamilton, 554. Hamilton v. Hough, 356, 358. Hamilton v. Lomax, 454. Hamilton v. Ry. Co., 300. Hamlin v. Race, 303. Hammer v. Kaufman, 347. Hammer v. Kaughman, 317. Hammond v. Cockle, 190. Hammond v. Hudson, etc., Co. ,285. Hammond v. People, 155. Hampton v. McConnell, 514. Hancock v. Bournan, 202. Hancock v. Ritchie, 478. Handy v. Ins. Co., 277, 494, 495. Hanna v. Jefferson viUe Ry. Co., 328. Hans V. Louisiana, 24, 452, 453. Hanson v. Chiatovich, 398. Harden V. Ry. Co., 363. Hardin v. Boyd, 191, 200. Hardin v. Helton, 314. Harding v. Alden, 419. Harlow v. Hamilton, 212. Harney v. Corcoran, 297. Harper v. Chamberlain, 274, Harper v. Harper, 529. Harral v. Gray, 292. Harriett V. Ry. Co., 495. Harrington v. Heath, 276. Harriott v. Ry. Co., 495. Harrison v. Bank, 192, 194, 195, Harrison v. Cage, 519. Harrison v. Harrison, 419. Harrison v. Hicks, 460. Harrison v. McCormick, 231, Harrison v. Nixon, 418. Harrison v. Stewardson, 488. Harris v. Avery, 178. Harris v. Eldridge, 286. Harris v. Hardeman, 514. Harris v. Ingledew, 320. Harris v. Knickerbacker, 323. Harris v. Ross, Treas., 339. Harris v. Shoutz, 363. Harris v. White, 334. Hart V. Evans, 346, 449. Hart V. McClellan, 340, 537. Hart V. Meeker, 358. Hart V. Ry. Co., 427. Harter v. CriU, 396. Hartford Ins. Co. v. Ka'hn, 376. HartweU v. Page, 211. Harvester Co. v. Bartley, 277. Harvey v. Chilton, 277. Hasbrouck v. Shuster, 303. HaskeU v. HaskeU, 182. Haskins v. Alcott, 153, 162, 271. Hassard v. Municipality, 335. Hastings v. Gevynn, 366. , Hatch V. Peet, 379. Hatch V. SpoflFord, 283. Haverstock v. Trudel, 271. Hawkins v. Borland, 393. TABLE OF CASES. XXVll The references Hawthorne v. Hoboken, 836. Hayden v. Demets, 508. Haynes v. Trenton, 534, 535. Hays V. Gas Co., 480, 541. Hays V. Hathorn, 314. Hays V. Miller, 561. Hayward v. Cain, 214, 460. Haywood v. Foster, 396. Hazelton v. Union Bank, 351. Headington v. Neff, 289, 332. Headley v. Shaw, 154. Headly v. Roby, 511- Heatherly v. Hadley, 381. Hedges v. Roach, 297. Hegarty v. Shine, 454. Hegeler v, Henckell, 561. Hegler v. Eddy, 364. Heinrick v. England, 505. Helger v. Addy, 399. Henderson v. Detroit, 444. Henderson v. Dickey, 192. Hendricks v. Decker, 382, 518. Hendrix v. Money, 489. Hennequin v. Naylor, 473. Henry v. Cannon, 297. Henry v. Cleland, 367. Henry v. McKittrick, 190, 200, 464 Henslee v. Cannefax, 257. Hereth v. Smith, 221, 393. Herf V. Shxilze, 154. HeiT V. Lebanon, 430. Hess V. Rosenthal, 553. Hewitt V. Brown, 178. Hexter v. Clifford, 281. Heye v. BoUes, 366. Hibbard v. W. U. Tel. Co., 407. Hicks V. Branton, 277. Hier v. Grant, 392. Higgins V. Butcher, 408. Higgins V. Dewey, 427. Higgins V. Germaine, 382. Hiies V. Johnson, 286. Hill V. Butler, 240. Hill V. Haskin, 357. Hill V, Josselyn, 329. Hill V. Marsh, 284. Hill V. Perrott, 439. are to pages. Hill V. Pine River Bk., 419. Hill V. Roberts, 252. Hill V. Rogers, 409. Hill V. Supervisor, 298. Hillier v. Stewart, 289. Hillman v. Hillman, 198, 279, 286. Hillman v. Newington, 487. Hilton V. Waring, 314. Himmelman v. Danos, 510. Hinde v. Vattier, 334. Hines v. Jarrett, 179, Hinkle v. Reid, 375. Hirn v. State, 334. Hirshfield v. Bopp, 539. Hitchens v. Pettingill, 544. Hites v. Irvine's Adm., 516. Hoag V. Hatch, 449. Hoag V. Mendenhall, 341, 343. Hobart College v. Fitzhugh, 415. Hobbs V. Ry. Co., 289. Hochster v. De La Tour, 416. Hockstedler v. Hockstedler, 182, 376. Hodgdon V. Chase, 331, Hodges V. Green, 325. Hoflfa V. Hoffman, 227. Hoffman v. Gordon, 250. Hoffman v. Hoffman, 419. Hoffman v. Peters, 333. Hoffman v. Plummer, 283. Hoisington v. Armstrong, 249. Holbert v. Ry. Co., 278. Holdridge v. Sweet, 295. Holeran v. School Dist., 180. Holford V. Hatch, 444. Holgate V. Broome, 240, 338, 357^ Holladay v. Patterson, 413, Holland v. Hatch, 515, 516. Holland v. Malken, 451, Hollenbeck v. Clow, 247, HoUiger v. Bates, 484. Hollingsworth v. Shaw, 525. HoUis V, Richardson, 311. HoUister v. Reznor, 559. Holloway v. Griffith, 416. Holloway v. Holloway, 465. Holly V. Graff, 303. XXVlll TABLE OF CASES. The references are to pages. Holmes v. Remson, 418. Holmes v. Rhodes, 451. HoLmberg v. Deafi, 524. Holmes v. Richet, 241. Holmes v. Broughton, 387. Holmes v. Sheridan, 178. Holstein v. Rice, 311. Holyoke v. Adams, 304. Holzman v. Hibben, 380. Homan v. Laboo, 524. Home Ins. Co. v. Duke, 315, 379. Home Ins. Co. v. Lindsey, 378. Homire v. Rodgers, 395. Hood V. State, 419. Hook V. Murdock, 374 Hooker v. Galligher, 376 Hoop V. Plummer, 271. Hoosac Min. & Mill. Co. v. Donat, 385. Hopkins v. Cothran, 257. Hopkins v. Hopkins, 267. Hopkins v. Ry. Co., 336. Hopkinson v. Shelton, 345, 395. Hopper V. Hopper, 242. Hoppough V. Stnible, 239. Hopwood V. Patterson, 241. Horn V. Ludington, 266. Horn V. Ry, Co., 334. Hornfager v. Homfager, 284. Horstekote v. Menier, 271. Horton v. Banner, 529. Hosley v. Black, 373, 379. Hostetter v. Aimian, 345, 395. Hotchkiss V. Ladd, 322. Hotel Co. V. Sigement, 469. House V. House, 419. House V. McKinney, 252, 255. House V. Meyer, 534. Houston V. Delahay, 181. Houston V. Musgrove, 515. Howard F. & M. Ins. Co. v. Cor- nick, 347. Howard v. Babcock, 473. Howard v. Brower, 323. Howard v. Daly, 474. Howard v. Johnston, 304. Howard v. Moot, 337. Howard v. Powers, 180. Howe V. Peckham, 465. Howell V. Howell, 280. Howie V. Rea, 227. Hoxie V. Home Ins. Co., 456L Hoyt V. McNeil, 332. Hubbell V. Courtney, 321. Hubbell V. Livingston, 203. Huber v. Steiner, 331. Hubler v. Pullen, 363. Hudson V. Caryl, 190. Hudson V. Gilliland, 439. Hudson V. Plank Rd. Co., 375. Hudson V. Swan, 300. Hudson V. Wheeler, 280. Huffman v. Ackley, 333. Huffman v. Hughlett, 385, 439. Hughes V. Feeter, 304, 270. Hughes V. Murdock, 170. Hughes V. Ry. Co., 459. Hughes V. United States, 516. Hulbert v. Young, 285. HuU V. Blake, 516. Humphreys v. Call, 366. Humphrey v. Merriam, 184. Hunt V. Bennett, 318. Hunt V. Bridge, 289. Hunt V. Dutcher, 381. Hunt V. Hall, 421. Hunt V. Peake, 520. Hvmter v. Bales, 538. Hunter v. Fitzmaurice, 555. Hunter v. Mathis, 531. Hunter v. McCoy, 191. Hunter v. Powell, 359. Hunting v. Blun, 539. Hurd V. Case, 231. Hurd V. Smith, 293. Hurley v. Cox, 280. Hurst V. Litchfield, 373. Hussey v. Collins, 450. Huston V. Craighead, 328. Hutchings v. Moore, 240. Hutchins v. Hutchins. 26, 405. Hutchinson v. Ainsworth, 191. Hutton V. Wetherald, 440. Hyatt V. Adams, 408. TABLE OF CASES. XXIX I. Hett V. Collins, 280. Ilsley V. Jewett, 330. • Improvement Co. v. Holway, 262, 263. Ingalls V. Bills, 430. Ingle V. Jones, 208, 211. In re Blythe^ 547. In re Negus, 451. Ins. Co. V. Baldwin, 283. Ins. Co. V. Boyle, 191. Ins. Co. V. Crandal, 550, Ins. Co. V. Gibson, 284 Ins. Co.v. Ins. Co., 191, 200. Ins. Co. V. McCormick, 221. Ins. Co. V. McGookey, 317. Ins. Co. V. Ry. Co., 520. Ins. Co. V. Ross, 203. Ins. Co. V. Routledge, 474, Ins. Co. V, Tweed, 427. Ireland v. MaGarvish, 525. Iron Co. V. Harper, 295. Irwin V. Smith, 555. Isaacs V. Clark, 399. Isaacs V. Holland, 351. Isaaxjs V. Wiley, 154. Ives V. Finch, 511. J. Jack V. Davis, 154. Jackson v. Bowles, 265. Jackson v. Varick, 299, 332. Jackson Sharp Co. v. Holland, 365. Jacob V. Smith, 325. Jacobie v. Mickle, 484. Jacobson v. Miller, 493. Jacquette v. Hugunon, 514. Jamaica Pond Co. v. Chandler, 515. James v. Allen, 474. James v. Allen Co., 470. James v. McPhee, 363, 366. James v. Wilder, 271, 287. Janesville v. Ry. Co., 336. Jarnigan v. Fleming, 318, 396, 529. Jarvis v. Robinson, 380. The references are to pages. Jasper v. Porter, 384. Jay V. Carthage, 516. Jeflfers v. Cook, 295. Jeflfers v. Johnson, 450. Jefferson v. Asch, 442. Jeffries v. Ankeny, 25, 406. Jeffries v. Evans, 234. Jencks v. Coleman, 521. Jenks V, Parsons, 537. Jenkins v. Steanka, 212. Jenkins v. Thomason, 286. Jessup V. Bank, 271. Jessup V. King, 303, 364. Jetton V, Smead, 524. Joest V. Williams, 221. Johnson v. Jones, 203, 233, 546. Johnson v. Kilgore, 371. Johnson v. Monell, 484, 643. Johnson v, Oswald, 391, 392. Johnson v. Ry. Co., 289, 292. Johnson v. Raylton, 443. Johnson V. Robertson, 526. Johnson v. Stelwagen, 398. Johnston v, Greist, 354. JoUey V. Plant, 347. Jones V. Boyce, 430. Jones V. Broadhurst, 460. Jones V. Childs, 450. Jones V. Cortes, 178. Jones V. Hays, 334. Jones V. Hoar, 440. Jones V. Hughes, 181. Jones V. Jones, 331. Jones, V. Lapham, 484. Jones V. Louderman, 367. Jones V. Ludlum, 208. Jones V. Palmer, 186. Jones V. Rahilly, 392. Jones V. Ry. Co., 535. Jones V. Slate Co., 204. Jones V. Steele, 271, 283. Jones V. Van Doren, 200. Jones V. VanZandt, 183. Jordan v. James, 256. Jordan v. Petty, 561. Joseph V. Holt, 367. Josselyn v. Stone, 329. XKX TABLE OF CASES. The references are to pages. Judah V. University of Vincennes, 345, 395. Judd V. Mosely, 483. Judds V. Dean, 375. K. Kahn V. Min. Co., 303. Kalckhoff v. Zoehrlaut, 353. Kampshall v. Goodman, 330. Karker v. Haverly, 316. Kavanaugh v, O'Neill, 299. Kay V. Fredrigal, 529. Kay V. Whittaker, 263, 363. Kechler v. Stumme, 340, 386. Keegan v. WUliams, 538. Kehoe v. Eounds, 524. Keithler v. Foster, 412. Keightley v. Watson, 485. Keithler v. Foster, 413. Kellam v. Toms, 380. Keller v. Johnson, 221. Kellogg V. Churchill, 272. Kellogg V. Ry. Co., 427. Kelly V. Peterson, 352. Kemp V, McCormick, 154. Kenchin v. Knight, 359. Kennedy v. Knight, 420. Kennedy v. Ry. Co., 535. Kennedy v. Shaw, 391. Kennedy v. Williams, 328. Kentucky v. Todd, 24, 236, 453. Ky. Flour Co. v. Bank, 226, 234. Kenworthy v. Williams, 262. Kenyon v. Quinn, 216. Ker V. Osborne, 45. Kerr v. Blodgett, 540. Kerr v. Hays, 267, 386. Kerr v. Kerr, 513. Kerschbaugher v. Slusser, 527. Kerstatter v. Raymond, 373. Kerwhacker v. Ry. Co. , 457. Ketcham v. Zerega,- 359, 366. Ketchem v. Shaw, 542. Kewaunee Co. v. Decker, 188, 286. KiUipsv. Put. Fire Ins. Co., 330, 456. Kimball v. Bryan, 189. KimbaU v. Harmon, 26, 405. Kincaid v. Howe, 154. King V. Armstrong, 234 King V. BeU, 157, 161. King V. Davis, 221. Kmg V. Eagle, 221. King V. Ins. Co., 238. King V. Kersey, 416. King V. Mason, 439, 445. King V. Root. 411, 527. King V. Smith, 325. Kingsbury v. Buchanan, 375, 377. Kingsley v. Oilman, 211. Kinney v. Nash, 525. Kinyon v. Palmer, 272. Kipp V. Bell, 71. Kirk V. Young, 488. Kirkman v. PhiHps. 385, 440. Kitchen v. Loudenback, 292. Klain v. Thompson, 214. Kleeman v. Collins, 326. Klein v. Thompson. 461. Klonne v. Bradstreet, 353. Kloune v. Bradstreet. 241. Knadler v. Sharp, 478. Knapp V. Bunals, 364. Knapp V. Hobbs, 439. Knapp V. Roche, 300, 363. Knapp V. Thomas, 24. Knatchbull v. Hallett, 123. Knight V. Gibbs, 526. Knight V. Ins. Co., 314. Knight V. McDonald, 386. Knights Templar, etc. , Co. v. Gra- vett, 405. Knowlton v. Ry. Co., 421, 471. Knutson v. Knapp, 474, 508. Konitzky v. Meyer, 513. Kopelke v. Kopelke, 421. Korne v. Korne, 191. 200. Krekeler v. Ritter, 518. Krhon v. Blantz, 323. Kronberg v. Elder, 381. Krug V. Ward, 178. Kyser v. Cannon, 892. TABLE OF CASES. ZXSl ITie references L. Lacey v. Porter, 530. Ladd V. Arkell, 266. Ladd V. James, 195. Ladd V. Ramsby, 356. Lade v. Trill, 331. Ladue v. Andrews, 203. Laidley v. Cummings, 381. Lain v. Shepardson, 391. lamb V. Stone, 405, 423. Lambkin v. Reese, 544. Lamine v. DorreU, 439. Lampson v. McQueen, 299. Lamson v. Falls, 376. Lancaster v. Ins. Co., 186. Landis v. Morrissey, 398. Lane v. Beam, 299. Lane v. Krekle, 253. Langford v. Freeman, 321. Langprey v. Yates, 187. Langridge v. Levy, 426. Lannen v. Albany Gas L. Co., 426. Lapping v. Duffy, 479. Larimore v. Wells, 262, 270, 374, 376. Larkin v. Taylor, 183. Lame v. Hays, 338. Larney v. Mooney, 363. Lash V. Christie, 377. Latham v. Richards, 302. Lathrop v. Atwood, 451. Laughlin v. Vogelsong, 497. Lavender v. Hudgens, 530. Laverty v. Moore, 537. Lavery v. Turley, 325. Lawrence v. Chase, 322, 323. Lawrence v. Cook, 519. Lawrence v. Fox, 441. Lawrence v. ]\IcCalmont, 351. Lawson v. Price, 455. Lawton v. Howe, 289. Lazarus v. Ry. Co., 417. Leach v. PiUsbury, 418. Leak v. Comrs., 277. Lieaper v. Tatton, 330. are to pages. Lea,vitt v. Cutler, 171. Lee V. AinsUe, 311. Lee V. Keister, 375. Lee V. Lee, 234. Lee V. Ry. Co., 536. Lee V. Terbell, 381. Lee V. Troy C. G. L. Co., 535. Lee V. Watson, 493. Lefler v. Field, 221. Lehmann v. Schmidt, 440. Leigh V. Smith, 332. Leighton v. Preston 439. Leith V. Leith, 419. Lennox v. Reed, 541. Leonard v. Rogan, 201. Leonard v. Sweetzer, 315. Leroux v. Brown, 326. Leroux v. Murdock, 363. Leroy v. Crowninshield, 331, Leslie v. Leslie, 256. Lessee of Cin. v. Pres. Ch., 329, Lester v. Wright, 157, 158. Leuck V. Heisler, 530. Levins v. Rovegno, 168, 343, Levy V. Bend, 230. Levy V. Brannan, 531. Leward v. Baseley, 409. Lewis V. Coulter, 208. Lewis V. Davis, 316. Lewis V. Phoenix Ins. Co., 456, Lewis V. Williams, 491. Leyde v. Martin, 211. Liedersdorf v. Bank, 180. Life Ass. Soc. v. Cuyler, 340. Lightfoot V. Cole, 315. Lightly V. Clouston, 439. Lignot V. Redding, 233. Lillienthal v. Anderson, 211. Lindsay v. Wyatt, 524. Lindsey v. Miller, 329. Linn Boyd T. W. Co. v. Terrill, 333, Linneman v. Moross, 442. Linton v. Hurley, 511. Lipe V. Becker, 289, Lipperd v. Edwards, 278. Litowich V. Litowich, 419. Littell V. Sayre, 284. xxxu TABLE OF CASES. The references are to pages. Little V. Blunt, 330. Little V. Harrington, 241. Little V. Little, 450. Little V. Martin , 444. Liverpool, etc., Steam Co. v. Phoenix Ins. Co., 420. Livesey v. Hotel, 378, 379, 456. Livingston v. Harrison, 247. Lockard v. Barton, 445. Lockwood V. Bigelow, 289. Lockwood V. Thunder Bay Co., 444. Lockwood V. Wildman, 382, 518. Loeb V. Weis, 267, 359. Lofton V. Moore, 547. Logan V, Caffrey, 469. Logan V, Wallis, 440. Logansport v. Shirk, 558. Long V. DeBevis, 271, 288. Long V. Fleming, 552. Long V. Heinrich, 478. Longchamp v. Kenny, 439. Longmeid v. HoUiday, 425. Loomis V. Brown, 486. Loop V. Gould, 380. Lord v. Harte, 539. Lord V. Lord, 442. Lord V. Morris, 329. Lord V. Tyler, 269. LoriUard v. Clyde, 160, 341. LosAngeles v. Signoret, 376. Losee v. Clute, 425. Lott V. Mitchell, 450. Loudenback v. Collins, 515, 516. Lough v. Outerbridge, 163. Love v. Oldham, 227. Lovejoy v. Murray, 481. Lovelock v. Franklyn, 416. Loving V. State, 155. Low V. Mussey, 513. Lowber v. Connit, 201, 385. Lowe V. Burke, 278. Lowe V. Lehman, 393. Lowell V. Lowell, 210. Lowry v. Dutton, 157. Lowry V. Harris, 271, 284, 302. Lowry v. Jackson, 284. Lucker v. C/Omm. 335. Luling V. Ins. Co., 489. Lumbert v. Palmer, 378. Lumley v. Gye, 433. Lumpkin v. Collier, 299. Lund V. Tyngsboro, 431. Lutes V. Briggs, 487. Luther v. Borden, 24. Lyle V. Clason, 411. Lyman v. Lull, 450. Lyman v. Stanton, 226. Lynch v. Eastern, etc., Co., 489. Lynch v. Nurdin, 428, 430, 434. Lynd v. Picket, 363. Lyon V, Talmadge, 518. Lytle V. Lytle, 375, 478. M. Macy V. Childress, 323. Mackey v. Auer, 202, 505. Mackubin v. Clarkson, 508. Macomber v. Nichols, 533. Macqueen v. Babcock, 332. Madge v. Puig, 198, 469. Magee v. Kast, 373. Maguire v. Maguire, 419. Maguire v. O'Donnell, 211. Maher v. Norwich Co., 408. Maholm v. Marshall, 494. Mahr v. Bartlett, 415. Malin v. Bull, 180. Mandeville v, Welch, 478. Manning v. Clement, 528. Manning v. Pippen, 323. Manny v. French, 366. Mfg. Co. V. Beecher, 279. Mfg. Co. V. Colgate, 226, 235, 240. Mfg. Co. V. Hall, 229, 230. Marble v. Keyes, 472. Marble v. Worcester, 431, 432. Marbourg v. Smith, 530. Marcellus v. Countryman, 515. Margetts v. Bays, 218, 329. Marie v. Garrison, 350, 537. Mariner v. Smith, 354. Marius v. Bickwell, 181, 287. Marriott v. Hampton, 517. TABLE OF CASES. XXXlll The references are to pages. Marsden v. Soper, 495. Marshall v. Aiken, 315. MarshaU v. Shafter, 391. Marshall v. Welwood, 405. Marston v. Sweet, 321, 323, 324. Martens v. Loewenberg, 180. Martin v. Blanchett, 322. Martin v. Elden, 559. Martin v. Henrickson, 526. Martin v. KunzmuUer, 226. Martin v. Martin, 337. Martin v. McDonald, 289. Martin v. Merritt, 537. Martin v. Roney, 516. Martineau v. Steele, 558. Marvin Safe Co. v. Ward, 426. Marzetti v. Williams, 407. Mass. Mut. Life Ins. Co. v. Kellogg, 85. Mason v. Alexander, 495. Mason v. Eldred, 512. Mason v. Whitely, 298. Massie v. Stradford, 145, 239. Masters v. Freeman, 278. Masterson v. Matthews, 382. Mather v. Hutchinson, 391. Matthews v. Copeland, 186. Matthews v. Mfg. Co., 303. Maud V. Maud, 416. Mauldin v. Ball, 250. Maumus v. Champion, 457. Maxedon v. State, 158. Maxim v. Wedge, 365. Maxwell v. Brooks, 182, 376. Maxwell v. Goetschins, 498. MaxweU v. Pratt, 285. May V. Armstrong, 231. May V. Davidge, 240. May V. Parker, 276. May V. Sloan, 322. Maybee v. Moore, 322. Mayer v. Ry. Co., 456. Mayer Co. v. Goldenberg, 265. Mayes v. Goldsmith, 371. Mayor v. Clarke, 550. Mayor v. Lord, 445. Mayor v. Mabie, 227. McAbee v. Randall, 240, 353, 354. McAllister v. Howell, 257. McArdle v. McArdle, 280, 328, 363. McAroy v. Wright, 256. McArthur v. Canal Co., 230. Mc Arthur v. Franklin, 541, 542. McCafiferty v. Ry. Co., 459. McCaffrey v. Carter, 471. McCamant v. Batsell, 504. McCammack v. McCammack, 261. McCan pbell v. Vastine, 376. McCann v. Pennie, 321. McCarthy v. Garroghty, 181, 270, 287. McCaslan v. Latimer, 299. McCauley v. Davidson, 533. McCauley v. Long, 264. McClanahan v. Williams, 353. McCloskey v. Strickland, 157. McClure v. Otrich, 322. McClurg V. Phillips, 191. McCombs V. Howard, 538. McConihe v. HoUister, 240. McCorkle v. Herrmann, 340. McCormick v. Basal, 416. McCormick v. Blossom, 351. McCormick v. Pickering, 218. McCormick v. Ry. Co., 495. McCormick v. Tate, 339. McCormick v. Wheeler, 561. McCormick H. M. Co. v. Wilson, 506. McCoy V. St. Ry. Co., 551. McCracken v. West, 427. McCue V. Smith, 325. McCuUough V. Baker, 473. McDonald v. Flour Mills, 395. McDonald v. M. V. H. Assn., 321. McDonald v. Peacemaker, 440. McDonald v. People, 155. McDonald v. SnelUng, 432, 434. McDonough v. Kans, 376. M'Elmoyle v. Cohen, 331. McElwee v. Hutchinson, 348. McEntee v. Cook, 342. McEwen v. Hussey, 289, 295. McGonigal v. Colter, 280. XXXIV TABLE OF CASES. The references McGregor v. Morrow, 500. McKee v. Eaton, 284. McKeighan v. Hopkins, 298. McKenzie v. L'Amoureux, 489. McKinney v. McKinney, 190, 270, 329. McKinney v, Neil, 430. McKinster v. Hitchcock, 505. McKyring v. Bull, 81, 85, 364, 397. McLachlan t. McLachlan, 441. McLane v. Paschal, 299. McLaughlin v. Nichols, 381. McLaughlin v. State, 155. McLeadv. Ins. Co., 219. McLeran v. Morgan, 152, 157. McMahan v. Spinning, 219. McMahon v. Allen, 481. McMahon v. Birdwell, 262. McMannus v. Smith, 232, 386. McMinn v. O'Connor, 303. McMurphy v. Walker, 363. McMurray v. Gifford, 221, 356. McNair v. Toler, 271, 283. McNees v. Mo. Pac. Ry. Co., 385. McNeil V. Commandery, 311. McNutt V. Kaufman, 372. McPhail V. Hyatt, 278. McQueen v. Babcock, 299. McWilliam v. Allan, 503. Mead v. Day, 366. Meade v. Thorne, 203. Meader v. Malcolm, 257. Meagher v. Morgan, 373. Meara's Adm. v. Holbrook, 158. Med. Coll. V. Newton, 375. Meehan v. Savings Bank, 365, 366. Meeker v. Claghorn, 314. Mehurin v. Stone, 378, 379, 456. Meiss V. Gill, 382, 518. Meixell v. Kirkpatrick, 495. Mellen v. Whipple, 441. Menifee v. Clark, 289. Mentz V. Cook, 163. Meredith v. Lackey, 256. Merriam v. Miller, 280. Merriam v. Ry. Co. , 520. Merrill v. ElUott, 553. are to pages. Merrill V. Ry. Co., 473. Merrill v. Wedgwood, 391. Merritt v. Walsh, 271. Merryman v. State, 329. Mescall v. Tully, 354. Metcalf V. Metcalf, 561. Metcalf V. Watertown, 163. Meth. Ch. V. Wood, 162. Metrop. L. Ins. Co. v. Meeker, 347. Metz V. Albrecht, 509. Metzner v. Baldwin, 202. Meyer v. Bhikleman. 292, 338. Meyer v. Dubuque, 274. Meyer v. Hibsher, 315, 371. Meyer v. Lowell, 441. Meyer v. VanCollem, 286. Milbank v. Jones, 390. Milburn v. Phillips. 549. Miles V. Caldwell, 515. Miles V. Lingerman, 391. Millard v. Baldwin, 338. MiUer v. Billingsly, 441. Miller v. Brigham, 249. Miller v. Garling, 300. Miller v. Goddard, 474. MiUer v. Hall, 540. Miller V. Ins. Co.. 393. Miller v. Longacre, 244. Miller v. Losee, 252. Miller v. Mans, 516. Miller v. McKenzie, 540. Miller v. MiUer, 539. Miller v. State, 329. MUler V. Tobin, 361. Milligan v. Mitchell, 489. Milligan v. State, 3SG. Milliken V. Tel. Co., 188. Milliken v. W. U. Tel. Co., 350. Mills V. Duryea, 514. Mills V. Murry, 478. MUls V. Rice, 328. Millspaugh v. Mitchell, 524. Mims V. Swartz, 334. Mining Co. v. Mining Co., 515. Minis V. United States, 333. Minter v. Broach, 330. MitcheU V. Allen, 303, 365. TABLE OF CASES. XXXV The references are to pages. Mitchell V, Brown, 261. Mitchell V. Campbell, 332. Mitchell V. Harmony, 445. MitcheU v. King, 325. Mitchell V. MoCabe, 292. MitcheU v. Shell, 483. Modlin V. N. W. T. Co., 278. Moen V. Eldred, 208. Moflfatt V. Pratt, 264. Moflfet V. Sackett, 227. Mohr V. Barnes, 364. Momry v. Kirk, 509. Monroe v. Douglass, 513. Monroe v. Gates, 407. Montgomery v. Deeley, 334. Montgomery v. Duley, 337. Moody V. Baker, 526. Moody V. Osgood, 462. Moon V. Johnson, 302. Moon V. McKnight, 194. Mooney v. Kennett, 335, Moore v. Boyd, 315. Moore v. McSleeper, 516. Moore v. Murrah, 483. Moore v. Woodside, 220. Morford v. White, 440. Morgan v. Booth, 363. Morgan v. Morgan, 483. Morgan v. Smith, 230. Morgan v. Spangler, 226. Morley v. Smith, 363. Morris v. Corson, 531. Morris v. Pugh, 382. Morris v. Thomas. 358. Morris v. Wheeler, 542. Morrison v. Baker, 322. Morrison v. Fishell, 292, 375. Morrow v. Bright, 226. Mortland v. Holton, 252, 256. Morton v. Morton, 244. Moser v. Jenkins, 363. Moss V. Printing Co., 292. Moss V. Shear, 303. Mott V. Burnett, 245. Moultrie v. Hunt, 418. Mount V. Ry. Co., 255. House's Case, 405. Mowry v. Chase, 513. Muldoon V. Blackwell, 257. Muldowner v. M. & E. P.. Co., 408. Muldowney v. Ry. Co., 277. Mulford V. Estrudillo, 212. MulhoUan v. Scoggin, 377. Mullaly V. Holden, 321. MuUendore v. Scott, 219. MuUer v. Earle, 302. Munday v. Vail, 492, 496, 498. Munn V. Taulman, 208. Munroe v. Stickney, 407. Muntz V. Foster, 359. Murdock v. Brooks, 367. Mure V. Kaye, 531. Murphy v. Carter, 529. Murphy V. McGraw, 184. Muser v. Lewis, 396. Mussey V. White, 382. Mussina v. Clark, 263. Myers v. Burns, 227. Myers v. Davis, 233. Myers v. Fenn, 540. Myers v. Lawyer, 547. , Myers v. Malcolm, 426. N. Naftzger v. Greeg, 366. Napa V. Easterby, 335. Nash V. City of St. Paul, 352, 357, 397. Nashv. Tupper, 331. Nashville v. Elkin, 408. Nathan v. Lewis, 376, 379. Nathans v. Hope, 470. Nat'l Bank v. Meerwaldt, 363, 366. Nat'l Trust Co. v. Gleason, 385, 473L Nau V. Gobrecht, 474. Needham v. Pratt, 233. Neil V. Collage, 284. Neil V. DiUon, 154. Nelson v. Brodhack, 243, 393. Nelson v. Brown, 515. Nelson v. Highland, 271. Nelson Lumber Co. v. Pelan, 359. Netcott v. Porter, 217, 249, 346. XXXVl TABLE OF CASES. The references are to pages. Neteler v, Culies, 161. Neuberger v. Webb, 365. New V. Wamback, 256. Newark v. Funk, 539. Newbould v. Warren, 284. Newbury v. Ry. Co., 466. Newcomb v. Dewey, 484. Newcomb v. Ins. Co., 214. Newcomb v. Weber, 256. NeweUv. Newell, 299. N. J. Exp. Co. V. Nichols, 457. Newlon v. Reitz, 278, 279. Newman v. Jenne, 523. Newman v. Kerson, 420. Newman v, Smith, 286. New Orleans v. Labatt, 335. Newsom's Admr. v. Ran, 299. Newson v. Ran, 332, Newton v. AUis, 298. Newton v. Swazey, 325. Newton Mfg. Co. v. White, 440. N. Y. Guar. Co. v. Gleason, 385. N. Y. Ice Co. V. Ins. Co., 191. Nichol v.;VIcAllister, 278. Nichols V. Briggs, 264. Nichols V. Dobbins, 271. Nichols V. Drew, 491. Nichols V. Dusenbury, 223. Nichols V. Marsland, 405. Nichols V. Weaver, 519. Nichelson v. Ingram, 515. Nicolay v. Fritschee, 480. Nimocks v. Inks, 51. Ninde v. Oskaloosa, 365. Nixon V. Beard, 315. Norden v. Jones, 234. Norman v. Rogers, 198, 279. Norris v. Amos, 382. Northrup V. Miss. Valley Ins. Co., 394. Northcraft v. Martin, 202. Norton v. Sewell, 428, 479. Nosier v. Hunt, 375. Nosser v. Corwin, 301. Nourse v. Prime, 505. Noyes v. Sawyer, 541. Nunez v. Morgan, 323. 0. Oakley v. Morton, 378, 459. Oakley v. Tugwell, 280. O. ife M. R. Co. V. Nickless, 377. O'Brien v. Fitzgerald, 201, 385. Ocean Ins. Co. , v. Francis, 334. O'Conner v. Hurley, 189. O'Connor v. Koch, 265. O'Donohue v. Hendrix, 293, Oechs V. Cook, 212. Ohlweiler v. Lohmann, 551. Oliphant v. Mansfield, 487. Olive V. Olive, 439. Oliver v. La Valle, 430. Olmstead v. Brush, 442. O'Neal V. Brown, 471. Ontario Bk. v. Root, 323. Opdyke v. Marble, 263. Orb V. Coapstick, 219. Orman v. Orman, 202. Orphan Soc. v. Wolpert, 180l Orton V. Noonan, 227. Orvis V Goldschmidt, 203. Osborne v. Endicott, 323. Osburn v. U. S. Bank, 23. Owen V. Henman, 410. Owings V. Hull, 334. Oyler v. Scanlan, 377. P. Packard v. Slack, 448, 464. Packet Co. v. Piatt, 506. Pa. Co. V. Sears, 266. Page V. Monks, 325. Paine v. French, 541. Paine v. Ins. Co., 515. Palmer v. Davis, 271, 283, 388, 491. Palmer v. Hayes, 481. Palmer v. Sawyer, 456. Palmer v. Smith, 529. Palmer v. Yager, 542. Pangburn v. Bull, 530. Papin V. Ryan, 334. Parker v. Berry, 329. Parker v. Cohoes, 434. Parker v. Hays, 363. TABLE OF CASES. XXX VU The references Parker v. Irvine, 329. Parker v. Monteith, 357. Parker v. Rhodes, 300. ParshaU v. Tillon, 211. Parsons v. Lyman, 418. Parsons v. Sutton, 233. Pastene v. Adams, 434. Partenheimer v. VanOrder, 179, 180. Patterson v. Adams, 339. Patterson v. Clark, 392. Patterson v. Hollister, 265. Patterson v. Prior, 385. Patterson v. Scot. Am. Co., 555. Pattison v. Adams, 310, 523. Pattison v. Vaughan, 182, 376. Patton V. Camplin, 375. Paul V. Frazier, 480. Pavd V. Sloson, 406, 445. Pavey v. Pavey, 245. Paving Co. v. Congreve, 188. Pavisich v. Bean, 373. Pawling V. Bird, 419. Payne v. Flournoy, 271. Payne v. Treadwell, 309. Peabody v. Ins. Co., 284. Pearce v. Mclntyre, 265. Pearsall v. Dwight, 331. Pearsons v. Lee, 376. Pease v. Ry. Co. , 495. Pease v. Rush, 478. Peck V. Hensley, 182. Peck V. Parchin, 219. Peck V. School Dist., 487. Peden v. Mail, 252. Peebles v. Isaminger, 220. Pegram v. Stoltz, 332. Pelton V. Fannin, 542. Pennington v. Gibson, 380. Penn. Co. v. Sedgwick, 266. Pennywit v. Foote, 514. People V. Booth, 289. People V. Collins, 154. People V. Cook, 154. People V. Crooks, 283. People V, Da well, 419. People V. Dennison, 300. are to pages. People V. McCumber, 262. People V. Potter, 336. People V. Ry. Co., 290, 292, 463, 495. People V. Ryder, 266. People V. San Francisco, 221. People V. Smith, 337. People V. Tel. Co., 271, 283. People V. Walker, 341, 343. People ex rel. Cornell v. Knox, 348. Peoria, etc., Ins. Co. v. Walser, 375, Perin v. McMichen, 418. Perkins v. Davis, 293. Perkins v. IngersoU, 271. Perkins v. Moore, 515. Perkins v. Walker, 399. Perrott v. Shearer, 214, 460. Perry v. Dickerson. 469, 512. Perry v. Lewis, 331. Ferryman v. Greenville, 336. Petersen v. Ochs, 369. Peterson v. Allen, 377. Peterson v. Nehf , 515. Petrie v. Bury, 485. Pettibone v. Edwards, 541. Pettibone v. Hamilton, 487. Pettit V. Hamlin, 321. Peyton v. Rose, 192, 194. Pfister V. Dascey, 178. Pharis v. Gere, 301. Phelps V. Duffy, 380. Philibert v. Burch, 256. Phillips V. Evans, 376. Phillips V. Jansen, 411. Phillips V. PhiUips, 378. Phoenix Ins. Co. v. Stark, 310, 38& Pickering v. Tel. Co., 292. Pickman v. Trinity, 439. Picquet v. McKay, 518, Pierce v. Bicknell, 269. Pierce v. Indseth, 422. Pierce v. Langdon, 523. Pierce v. Mintum, 292. Pierce v. Tiersch, 228. Piercy v. Adams, 321. Piercy v. Sabin, 518. Pierrepont v. Lovelass, 271. iXXVUl TABLE OF CASES, The references are to pages. Pierson v. Ry. Co., 186. Pierstoflf v. Jorges, 381. Pinch V. Anthony, 303, 304. Pinckard v. Milwine, 155. Pine V. Smith, 420. Piper V. Hoard, 277, 403. Pitcher v. Hennessey, 238. Pittman v. Myrick, 292. Plainfield v. Plainfield, 547. Piatt V. Colvin, 488, 489. Piatt V. Potts, 405. Plumer v. Clarke, 299, 332. Plummer v. Mold, 178. Plymouth v. Milner, 278. Poev. Ry. Co., 541. Pollard V. Lyon, 526. Polley V. Wilkisson, 286, Polly V. Ry. Co., 341. Poly V. Williams, 382. Pomeroy v. Lappens, 335, 387. Pool V. Pratt, 520. Popijoy V. Miller, 544. Port V. Jackson, 451. Porter v. Fletcher, 285. Porter v. Vaughn, 516. Porter v. Waring, 335. Pottgieser v. Dorn, 363. Potter V. Ellice, 271, 483. Pottinger v. Garrison, 292, 293. Powder Co, v. Hildebrand, 353. PoweU V. Peveney, 428, 434. Powell V. Reese, 385, 439. Power Co. v. Eastman. 535. Powers V. Ames, 276, 318. Powers V. Armstrong, 216, 217. Powers V. Prov. Inst. , 548. Powers V. Ware, 472. Preble v. Baldwin, 325. Prell V. McDonald, 336, Prentiss v. Blake, 154. Preston v. Hawley, 444. Preston v. Roberts, 379. Price V. Ry. Co., 289. Price V. Ward, 517. Price V. Weaver, 321, Prime v. Cobb, 523. Prince v. Towns, 157, 158, Prindle v. Caruthers, 311, 315, 353, 367, 371. Proctor V. Jennings, 434. Proprietors v. Call, 334. Prost V. More, 398. Prouty V. Ry. Co., 302. Pry V. Ry. Co.. 208. Pudney v. Burkhart, 204, 261. Puffer V. Lucas, 304. Pulliam V. Burlingame, 392. Q. Quick V. Corlies, 331. Quinby V. Ry. Co., 521. Quinn v. Lloyd, 348, 364. Quinney v. Stockbridge, 339. R. RacouiUat v. Rene, 212. Radde v. Ruckgaber, 581. Ry. Co. V. Acres, 521. Ry. Co. V. Bank, 479. Ry. Co. V. Bales, 427. Ry. Co. V. Barnes, 353. Ry. Co. V. Barrett, 520. Ry. Co. V. Berkey, 533. Ry. Co. V. Blackshire, 334. Ry. Co. V. Bowns, 347. Ry. Co. V. Brigham, 534, Ry. Co. V. Burress, 155. Ry. Co. V. Byrum, 553. Ry. Co. V. Cliase, 427. Ry. Co. V. Chester. 466, 467. Ry. Co. V. Chew, 440. Ry. Co. V. Cole, 455. Ry. Co. V. CoUam, 266. Ry. Co. V. Crawford, 206, 534. Ry. Co. V. Davidson, 493. Ry. Co. V. Dickerson, 462. Ry. Co. V. Dunlap, 533, 535, 53S. Ry. Co. V. Finney, 297. Ry. Co. V. Forbes, 367. Ry. Co. V. Grames, 534. Ry. Co. V. HaU, 278. Ry. Co. V. Harris, 399. Ry. Co. V. Harwood, 533. TABLE OF CASES. XXXIX The references are to pages. . V. Heaton, 501. Ry. Co. V.Wilson, 339. . V. Hedges, 184. Ry. Co. V. Whitacre, 536. . V. Herr, 254. Ry. Co. V. Xenos, 416. . V. Hope, 427. Raleigh v. Cook, 300. . V. Hixon, 337. Ramirez v. Murray, 298. . V. Ireland, 553. RandaU v. Howard, 323. . V. Iron Co., 267, 352. Randon v. Toby, 331. . V. Kassen, 457. Rankin v. Goddard, 513. . V. Kelly, 441. Rankin v. Major, 541. . V. Kellogg, 427. Ransom v. Stanbery, 382. . V. Kerr, 428. Rapps V. Gottlieb, 541. . V. Klauber, 534, 335. Rathbone v. Hooney, 542. . V. Langendorf , 458. Rathbun v. Emigh, 183. ' ). V. McDaniel, 351. Rawark v. Lee, 524. ). V. McGown, 521. Rawlings v. Lambert, 185. ». V. McLiney, 278. Raymond v. Pritchard, 221. ). V. Metcalf, 488. Raymond v. Richardson, 398. ). V. Moore, 337, 386. Raymond v. Sturges, 269. ). V. Morey, 459, 499. Read v. Lambert, 316. ). V. Mowatt, 289. Ready v. Summer, 267, 343. ). T. Murphy, 535. Redfield v. Haight, 451. ). V. Nolthenius, 536. Redmond v. Coffin, 518. ). V. Owen, 202. Reed v. Calderwood, 368. ). V. Packet Co., 523. Reed v, Chilson, 495. ). V. Pape, 298. Reed v. Mayor, 299. ). V. Parks, 376. Reed v. Northfield, 386. ). V. Paulk, 430. Reed v. Norton, 552. ). V. Peoples, 438, 522. Reed v. The Evergreens, 541. ). V. Perry Co., 548. Reeder v. Sayre, 298. ). V. City of Philadelphia, 412. Reeve v. Fraker, 311. ). V. Pierce, 337. Reid V. Boyd, 380. ). V. Power, 501. Reid V. Stevens, 322. ). V. Proples, 473. Reid V. The Evergreens, 488. ). V. Ey. Co., 226, 514. Reilly v. Bucker, 252. ). V. Rutherford, 535. Reilly v. Ringland, 523. ). V. Scammon, 465. Reinheimer v. Carter, 324. ). V. Scoggin, 340, 342. Reitenhaugh v. Ry. Co., 162. ). V. Schuyler, 284. Remillard v. Prescott, 399. ). V. Shanklin, 266. Renan v. Williams, 397, ). V. Skillman, 521. Renshaw v. Taylor, 542. ). V. Stewart, 341. Reynolds v. Dunkirk & S. L. Ry. ). V. Stanford, 427. Co., 322. ). V. Supervisors, 221. Reynolds v. Kennedy, 530. ). V. Traube, 471. Reynolds v. Roudabush, 219. 3. V. Vancant, 278. Reynolds v. Stanbury, 518. X V. Walker, 395. Reynolds v. Stockton, 492, 496, 514. 3. V. Washbiurn, 206, 390, 535. Rheinhart v. State, 375. xl TABLE OF CASES. The references are to pages. Alameda, 340, 343, 377, Rhoda V 510. Rhode Island v. Mass., 501. Rhodes v. Gunn, 392. Rhodes v. Pray, 189. Rice V. Coolidge, 198. Rice V. O'Connor, 240. Rice V. Savery, 441. Richards v. Fanning, 293. Richardson v. Crandall, 413. Richardson v. Hittle, 221. Richardson v. Smith, 363. Richer v. Freeman, 405. Richtmeyer v. Richtmeyer, 288. Richwine v. Presb. Ch., 200. Ricketson v. Richardson, 233. Ridder v. Whitlock, 351. Riddle v. Parke, 249, 250, 346. Riddle v. Roll, 200. Ridenour v. Mayo, 269. Rider v. Robbins, 183. Rinehart v. Long, 198, 464. Ripley v. ^tna Ins. Co., 456. Roback v. Powell, 272. Robbins v. Deverill, 321. Robbins v. Harvey, 329. Robbins v. Lincoln, 363, 366. Roberts v. Johannas, 210, 278. Roberts v. Lovell, 357. Roberts v. Marchant, 483. Roberts v. Treadwell, 338, 347. Robertson v. Perkins, 341, 550. Robertson v. Sturth, 513. Robinson v. Fitch, 344, 523. Robinson v. Flint, 184. Robinson v. Gary, 536. Robinson v. Greenville, 351. Robinson v. Hatch, 528. Robinson v. Howard, 515. Robinson v. Prescott, 514. Robinson v. Ry . Co. , 535. Robinson v. Rice, 265. Robinson v. Willoughby, 298, 299. Robrecht v. Marling, 278. Robson V. Comstock, 353. Roddy V. Ry. Co., 425. Roe v. Roe, 346. Roeder v. Brown, 338. Roehring v. Huebschmann, 469. Roemer v. Striker, 390. Rogers v. Dutt, 24, 404. Rogers v, Grosnell, 441. Rogers v. Milwaukee, 168. Rogers v. Parham, 473. Rogers v. Rogers, 555. Rogers v. State, 376. Rolin v. Steward, 407. Rollins V. Forbes, 195. RoUins V. Lvmaber Co., 367. Rose V. Hawley, 515, 516. Ross V. Mather, 269. Ross V. Sagdbeer, 315. Rost V. Harris, 531. Rowe V. Baccigalluppi, 284. Roys V. Lull, 381. Royse v. Reynolds, 231. Rozencrantz v. Rogers, 153. Rubush v. State, 341. Rue High's Appeal, 418. Rugh V. Ottenheimer, 398. Ruggles V. Gatton, 322. Ruggles V. Sand, 309. Rugers v. Odell, 380. Rumsey v. Lake, 288, 491. Rumsey v. Robinson, 240. Rush V. Rush, 203, 204. Russell V. Bell, 440. Russel V. Chambers, 265. Russell V. Mayor, 445. Rutledge v. Corbin, 487. Rutledge v. Vanmeter, 298. Ryan v. Bank of Neb., 374. Ryan v. Curran, 375. Ryan v. Jacques, 351. Ryan v. Ry. Co. , 295, 428. Ryan v. Tomlinson, 325. s. Sac County v. Hobbs, 350. Sackett v. Havens, 366. Sagory v. Ry. Co., 299, 332. St. John V. Griffith, 265, 385. St. Paul Div. v. Brown, 537. TABLE OF CASES. xU The references are to pages. Saline Co. v. Sappington, 202. Salladay v. Dodgeville, 534. Samminiss v. Wilhelm, 338. Sampson v. Hodinott, 406. Sanborn v. Rodgers, 323. Sandeen v. Ry. Co., 440. Sands v. Calkins, 295, 296. Sands v. St. John, 328, 347. Sands v. Smith, 420. Sangster v. Butt, 283. Sappington v. Ry. Co., 290. Sarchet v. Sarchet, 235. Sargent v. Ry. Co., 370, 371, 374. Saulsbury v. Alexander, 353, 554. Saumby v. Rochester, 535. Sauer v. Steinbauer, 195. Saville V. Ins. Co.. 506. Sawyer v. Warner, 209. Sawyer v. Woodbury, 515. Sayers v. Bank, 552. Sayles v. Tibbitts, 516. Sayre v. Cushing, 366. Scaggs V. President, etc., 535. Scantlin v. Allison, 480. Scarborough v. Smith, 177, 178. Schaetzel v. G. F. M. Ins. Co., 363. ScheU V. Leland, 162. Schenck v. Butsch, 464. Schenk v. Evoy, 208. Scheer v. Keovvn, 531. Schermerhorn v. VanAUen, 394. Schermerhorn v. Schermerhorn, 553. Schluler v. Bow. Sav. Bank, 341. Schneider v. Hosier, 298. Schnier v. Fay, 478. Schofield v. Ferrei^s, 171. Scholfield V. Settley, 552. School Dist. V. Benson, 392. School Dist. T. Griner, 271. School Dist. V. Mclntire, 290. School Tp. V. Citizens' Bank, 376. Schreckengast v. Ealy, 299. Schrock v. Cleveland, 159. Schulenberg v. Harriman, 391. Schultz V. Winter, 487. Sehwarz v. Oppold, 271. Schweickhart v. Stuewe, 474. Schweizer v. Weiber, 440. Scofield V. Bank, 267. Scott V. Godwin, 485. Scott V. Shepherd, 405, 428, 436, 427, 434. Scott V. State, 289. Scott V. Tyler, 450. Scott V. Zartman, 377. Scotten V. Randolph, 376. Scovill V. Glassner, 298. Scoville V. Barney, 363. Seager v. Burns, 538. Seaman v. Seaman, 315. Seawright v. Coffman, 377. Secor V. Sturgis, 470. Secrist v. Petty, 336. Seeley v. Thomas, 329. Sell V. Miller, 419. Selma Co. v. Lacy, 408. Semple v. Lee, 484, 542. Sentenis v. Ladew, 494. Severin v. Keppel, 412. Sewall V. Valentine, 341. Sewell V. Sewell, 419. S. M. Co. V. Wray, 286. Seymour v. Ry. Co., 280, 281, 328w Seymour v. Shea, 557. Shacker v. Ins. Co,, 493. Shafer v. Bronenberg, 221, 393. Shafer v. Hockheimer, 495. Shaffer v. McKee, 18. 412. Shahan v. Tallman, 351. Shank v. Teeple, 323, 325. Shannon v. Shannon, 419. Sharpe v. Sharpe, 547. Shaver v. Brainard, 489. Shaw V. Dutcher, 289. Shaw V. Tobias, 386. Shawhan v. Van Nest, 508. Shay v. Thompson, 455. Shearman v. West. Stage Co., 408. Shed V. Augustine, 247. Shedd V. Moran, 408. Sheehy v. Mandeville, 512. Sheets V. Baldwin's Admr.. 299, 332. Sheffill V. Van Densen, 410. xlii TABLE OF CASES. The references are to pages. Shelden v. Newton, 496. Sheldon v. Adams, 295. Sheldon v. Hopkins, 380. Sheldon v. Hoy, 153, 158, 159. Sheldon, Hoyt, & Co. v. Middleton 363, 365. Shelly V. Varnarsdoll, 233. Shelton v. Alcox, 399. Shepard v. Ry. Co., 190. Sheridan v. Jackson, 339. Sheridan v. Mayor, 313. Sherlock v. Ailing, 214, 461. Shermon v. Osborn, 365. Sherwood v. Saxton, 323. Shields v. Yonge, 408. Shook V. Fulton, 198, 279. Shook V. Singer Mfg. Co., 221. Shore v. Smith, 178. Short V. Stone, 416. Short V. Stotts, 519. Shropshire v. Conrad, 233. Shroyer v. Miller, 527. Shroyer v. Richmond, 278. Shugart v. Egan, 458. Shuler v. Millsaps, 519. Sibley V. Pine Co., 412. Sidenberg v. Ely, 399. Sieberling Co. v. Dujardin, 202. Silver Lake Bk. v. Harding, 514. Simar v. Canaday, 278. Simmons v. Green, 249, 251, 267, 346, 395, 509. Simmons v. Kayser, 221. Simms v. Richardson, 541. Simons v. Green, 378. Simpkins v. Ry. Co., 229. Simpson v. Cochran, 511. Simpson v. Greeley, 271. Simpson v. McArthur, 531. Sims V. Radcliffe, 330. Sinclair v. Fitch, 277. Sinker v. Floyd, 311. Sisco V. Ry. Co., 535. Siter V. Jewett, 212, 217, ^43, 345. Skinner v. McDonall, 324. Skinner v. Stewart, 285. Skoglund V. St. Ry. Co., 466. Slack V. Heath, 367. Slagle V. Hoover, 539. Slauson v. Englehart, 303. Sloan V. McDowell, 284. Sloan V. Waugh, 331. Slocum V. McBride, 156. Small V. Owings, 322. Smith V. Brown, 316, 378. Smith V. Cudworth, 548. Smith V. Curtis, 501. Smith V. Douglas, 186. Smith V. Fah., 321. Smith V. Hall, 221, 393. Smith V. Holmes, 398. Smith V. Hoover, 277, 495. Smith V. Lincoln, 329. Smith V. Lisher, 396. Smith V. Little, 182. Smith V. McLean, 374, 523. Smith V. Nelson, 208, 357. Smith V. Richmond, 328, 330. Smith V. Ross, 154. Smith V. Sewing Machine Co., 16C, 341. Smith V. Sherman, 519. Smith V. Smith, 302, 440, 553. Smith V. Stewart, 444. Smith V. Tallapoosa, 334. Smith V. Warren Co., 292. Smith V. Wooding, 444. Snook V. Davis, 524. Snyder v. Snyder, 186. Snyder v. Voorhes, 285. Snyder v. Wise, 514. Society V. Varick, 155. Solomon v. Hughes, 335. Somerville v. Stewart, 219. Sons of Temp. v. Brown, 316. Sorrells v. McHenry, 316. Souch V. Strawbridge, 325. Souter V. Maguire, 310, 386. Sparhawk v. Ry. Co., 410. Sparks v. Heritage, 392. Spear v. Downing, 351. Spear v. Mayor, 304. Spears v. Ward, 183. Specklemeyer v. Dailey, 380. TABLE OF CASES. vlii^ The reference are to pages. Spellman v. Weider, 291, 510. Spence v. Ins. Co., 162, 195, 197, 270. Spencer v. South wick, 358. Spencer v. VanCott, 284. Sperry v. Spaulding, 253. Spieres v. Parker, 333. Spies V. Roberts, 267, 315. Spooner v. Keeler, 529. Spoors V. Coen, 496, 497, 500. Sprague, Adm. v. Childs, 244. Springer v. Dwyer, 353, 354. Springer v. Kleinsorge, 322. Springfield v. Spence, 453. Springsteed v. Lawson, 184. Stafford v. The M. J. Assn., 165. Stanbach v. Rexford, 391. Stanbury v. Kerr, 292. Stanglein v. State, 334. Stanton v. Kenrick, 297, 516. State V. Bath, 270. State V. Board, 547. State V, Casteel, 344, 350, 351. State V. Chad wick, 270. State V. Coghlen, 547, 548. State V. Evans, 439. State V. Jackson, 337. State V. Leiber, 337, State V. Linkhan, 410. State V. Martin, 154. State V. Murfreesboro, 336. State V. Newman's Exr., 412. State V. Oddle, 335. State V. Patton, 157. State V. Powers, 337. State V. Rood, 558, State V, Ruth, 204. State V. Simpkins, 295. State V. Spencer, 281. State V. Stapp, 333. State V. Tel. Co., 155, 156, State V, Wenzel, 344, 350, State V. "Williams, 217, 249, 251. 346, 395. State ex rel. v. Helmes, 417. Steamship Co, v, Otis, 300. Steamship Co. v. Voorhis, 548. Steams v. Dubois, 186, 187, 189. Stebbins v. Palmer, 519. Steele v. PhiUips, 529, Steele v. Russell, 212. Stein V. Rose, 470. Stenton v, Jerome, 506. Stephen v. State, 154. Stephens v. Magor, 192, 195. Stephens v, Murton, 544. Stephenson v. Doe, 337. Stern A. & C. Co. v. Mason, 391. Stevens v. Able, 233. Stevens v. Brooks, 298, 489. Stevens v, Campbell, 542. Stevens v. Dunbar, 515, Stevens v. Thompson, 363. Stevenson v, Morris, 447. Stewart v. Budd, 363, Stewart v. Carter, 192, 194. Stewart v, Hoag, 216. Stewart v, Johnson, 484. Stewart v. State, 155. Stier v, Oskaloosa, 336. StilweU V, Adams, 374. Stockett V. Watkins, 444. Stocking V. Burnett, 291. Stockwell V. Wager, 284. Stoddard v. Thompson, 481. Stoddard v, Treadwell, 367. Stodghillv. Ry, Co., 472, Stokes V, Saltenstall, 430. Stone V, Bird, 523, Stone V, Dennison, 325. Stone V, Ry. Co., 459. Storrs V. Flint, 300. Stoughton V, Mott, 500, Stout V, Folger, 451, Stout V. St. L. Tribune Co., 373. Stout V. Wren, 455. Stowell V. Chamberlain, 515. Stowell V. Eldred, 241. Stowell V. Lincoln, 407, Stowell V, Zouch, 347. Strader v. Graham, 418. Strang v. Beach, 544. Strange v. Manning, 278. Stratton v. Allen, 289, 523. xliv TABLE OF CASES. Uie references are to pages. Strauss v. Meertief , 474. Strauss v. Meyer, 526. Strickland v. Fitzgerald, 310, Stringfellow v. Curry, 444. Stringham v. Supervisors, 503. Strobe v. Downer, 497. Strong V. Strong, 302. Strother v. Browning, 440. Struble v. Malone, 517. Strughan v. Inge, 162. Stucker v. Stucker, 541. Studstill V. State, 154. Stultz V. Dickey, 393. Sturgess v. Burton, 178, 185, 194, 280, 328. Suman v. Springate, 322. Sunman v. Brewin, 528. Supervisors v. Decker, 298, 299. Supervisors v. O'Malley, 186. Supervisors v. Van Stralen, 241. Supply Ditch Co. v. Elliott, 358. Sussdorf V. Schmidt, 873. Sutliff V. Atwood, 444, Swan V. Iron Co. . 276. Swank v. Hufnagle, 386, 419, Sweeny v. Ry. Co., 533. Sweet V. Brown, 549. Sweet V. Ingerson, 184. Sweet V. Mitchell, 298. Sweet V, Tuttle, 241, Swensen v, Cresop, 516, Swenson v. Plow Co. , 541. Swift V, Ellsworth, 221. Swinney v. Nave, 468. Sylvis V. Sylvis, 217, 249, 346. T. Talbot V. Bowen, 322. Talcott V. Henderson, 473. Tanguay v. Felthousen, 542. Tank Line Co. v. Collier, 387. Tappan v. Evans, 539. Tarbox v. Gorman, 284. Tarbox v. Supervisors, 328. Tate V. Ry. Co., 487. Taylor v. Barclay, 336. Taylor v. Barron, 514. Taylor v. Cole, 173, 218. Taylor v. Ins. Co.. 200. Taylor v. Merrill, 322, 333. Taylor v. Monroe, 448. Taylor v. Neri, 433. Taylor v. Patterson, 321. Taylor v. Ry. Co., 179, 375. Taylor v. Salmon, 488. Taylor v. Whitehead. 445. Temple v. State, 336. Templeman v. Riddle, 393. Tennant v. Pfister, 271, 278, 293. Tenney v. Townsend, 380. Tenor V. Ry. Co., 234, Terrill v. Jennings. 366. Terry v. Calnan, 540. Terry v. Munger, 98. Terwilliger v. Wands, 411, 536. Tew V. Jones, 444. The C. & W. Coal Co. v. Liddell, 322, 323. The Holladay Case, 366. The King v. Brereton, 356. The Scotia, 334. Thomas v. Allen, 451. Thomas v. Desmond, 311. Thomas v. Hatch, 301. Thomas v. Hammond, 323. Thomas v. Rumsey, 487, Thomas v. Winchester, 428, 437, 479. Thompson v. Barkley, 529. Thompson v. Elliott, 156. Thompson v. Erie Ry. Co., 262. Tliompson v. Franks, 354. Thompson v. Greenwood, 241. Thompson v. Halbert, 219. Thompson v. Kessell, 230. Thompson v. Minford, 188, 386. Thompson v. Morton, 501. Thompson v. Munger, 358. Thompson v. Ry. Co. , 535. Thompson v. Sanders, 228. Thompson v. Sweetser, 392. Thompson v. Thompson, 249, 439, 441. Thompson v. Whitman, 496. TABLE OF CASES. xlv The references are to pages. Thornton v. Strauss, 439. Throop V. Sherwood, 505. Tibbettsv. Ry. Co., 459. Tiernan v. Woodruff, 299. Tiffany v. Bowerman, 301, 303. TiflSn V. McCormack, 459. Tightmyer v. Mongold, 385. Tilson V. Clark, 528. Timlow V. Ry. Co., 334. Tunmons v. Dunn, 227. Tinsley v. Tinsley, 230. Tisdale v. Moore, 202. Tisdale v. Norton, 431. Tisen v. Hanford, 371. Todd V. Neal, 422. Toledo, etc., Ry. Co. v. Pence, 833. Tolmie v. Dean, 158. Tomlinson v. Derby, 448. Tomlinson v. Warner, 530. Tooker v. Amoux, 338, 371. Tootle V. Clifton, 553. Tootle V. Wells, 286, 504. Towell V. Pence, 278. Towner v. Tooley, 489. Townsend v. Campemowne, 483. Townsend v. Jemison, 331. Townsend v. Rackham, 441, 442, 479. Townshend v. Norris, 351. Towsley v. Moore, 329. Transp. Co. v. Boggiano, 233. Trapnall v. Brown, 322. Trapnall v. Hill, 503. Trask V. Ry. Co., 465. Travis v. Barger, 396. Treadwell v. Corars., 365, 366. Treasurer v. Hall, 338. Trimble v. Doty, 553. Tripp V. Bishop, 325. Trippe v. DuVal, 301. Trogden v. Deckard, 531. Trott V. Sarchett, 289. Trotter V. Comrs., 233. Trowbridge v. Forepaugh, 179. Trow City Directory v. Curtin, 340. Truesdeil v. Bourke, 552. Truesdell v. Rhodes, 284, 286. Truitt V. Baird, 270. Trumbo v. Finley, 297. Truscott V. Dole, 203, 355. Trustees, etc. v. Odlin, 159, 270, 342, 343. Tubbs V. Caswell, 289. Tucker v. Edwards, 324. Tucker V. Ins. Co., 232. Tucker v. Lovejoy, 338. Tulley V. Harloe, 523. Turner v. Althaus, 181. Turner v. Roby, 380. Turner v. Simpson, 252. Turner v. White, 309, 343. Turnow v. Hochstadter, 300, 326. Turnpike Co. v. Baldwin, 535. Turnp. Co. v. Humphrey, 266. Turnpike Co. v. Sears, 386. Tutein v. Hurley, 434. Tuttle V. Hannegan, 345. Tutty V. Alewin, 526. Tweedy v. Jarvis, 154. Twomley v. Ry. Co., 430. Tyson v. McGuineas, 481. u. Union Bank v. Bush, 344. Union Bank v. Mott, 473. Union Ins. Co. v. McGookey, 347, 378. Union Nat. Bk. v. Bassett, 332. United States v. Beebe, 329. United States v. Boyd, 292. United States v. Clarke, 276, 380. United States v. Knight, 329. United States v. Morris, 367. United States v. Ordway, 397. United States v. Reynes, 337. Upington v. Oviatt, 487, 489. Upton V. Else, 330. Upton & Co. V. Julian & Co., 223. Uther V. Rich, 339. Utlca Ins. Co. v. Bloodgood, 331. T. Valentine v. Lunt, 357. xlvi TABLE OF CASES. 77ie references are to pages. VanAlstyne v. Norton, 345, 395. Van Aukin v. WestfaU, 411, 527. VanBrunt v. Mather, 186, 189. Vandenburgh v. Truax, 426. Van De Sande v. Hall, 231. VanDyke v. Rule, 298. Van Dyke v. Maguire, 210. Van Eman v. Stanchfield, 314. \7an Fossen v. State, 418, 419. VanGieson v. VanGieson, 363. VanMaren v. Johnson, 299. Van Orman v. Spafford, 518. Van Schaick v. Winne, 316. Van Schiack v. Ry. Co., 441. Van Steenburgh v. Tobias, 179. Van Tassel v. Capron, 525. Van Thornily v. Peters, 544. VanVUet v. OHn, 516. VanWert v. Webster, 339. Van Wyck v. Guthrie, 529. Vassear v. Livingston, 226, 236. Vaughan v. Howe, 256. Vaupell V. Woodward, 324, Vavasour v. Ormrod, 333. Veeder v. Baker, 499. Veliev. Ins. Co., 186, 188. Verhein v. Schultz, 515. Vibbard v. Roderick, 189. Vibert v. Frost, 283. Vicars v. Wilcocks, 526. Viles V. Bangs, 278. Vincent v. Starks, 154, 347. Volkening v. DeGraaf , 506. Vooght v. Winch, 518. Vore V. Woodford, 281. Vose V. Woodford, 292. Vroom V. Van Home, 418. Wachter v. Quenzer, 396. Wade v. Howard, 516. Wade V. Kalbfleish, 519. Waffle V. Goble, 333. Waffle V. Short, 504. Wager v. Ide, 391, Waggoner v. Listen, 345, 395, Wagner v. Nagel, 187, 501. Wagoner v. Wilson, 350. Waits v. McClure, 271. Wakeman v. Robinson, 24, 405. Walcott V. Studebaker, 552, Waldsmith v. Waldsmith, 338. Walker v. Deaver, 271. Walker v. Duncan, 440. Walker v. B. R. of Miss., 333. Walker v. Ins. Co., 225, 236. Walker v. Johnson, 173, 333. Walker v. Kynett, 292. Walker v. Locke, 323, Walker v. Mauro, 478, Walker v. McKay, 226. Walker v. Popper, 280, Walker v. Richards, 321. Wall V. Galvin, 375. Wall V. Water Works Co., 362, 36a Wallace v. Eaton, 285. Wallace v. Wilson, 320. Walsh V. Cattenburgh, 186. Walsh V. Durkin, 284. Walsh V. Kattenbui-gh, 321, Walsh V. Ry. Co., 535. Walsh V. Trustees N. Y. & B. Bridge, 336. Walter v. Bennett, 301. Walter v. Fowler, 261. Walter v. Hartwig, 316. Walter v. Radclifife, 332. Walters v. Ins. Co., 188, 286. W. & K. Bridge Co. v, Wyandotte, 487. Wanzer v. Self, 556, Ward V. Clay, 376. Ward V. Kalbfleisch, 295. Ward V. Moorey, 292. Ward V. Polk, 219. Ward V. Ward, 286. Warder v. Baldwin, 398, Ware v. Reese, 187. Warfield v. Gardner's Admr., Ifcvj;^ Waring v. Waring, 490. Warner v, Myrick, 505. Warner v. Nelligar, 265. Warner v. Warner, 204, 261. TABLE OF CASES. xlvii TTie references are to pages. Warren v. Crane, 456. Warren v. Walker, 331. Warrick, etc., Co. v. Hougland, 547. Warwick v. Cooper, 520. Wash. Tp. V. Bouney, 278. Washer v. BuUitt Co., 295. Watchter v. Quenzer, 318, 528. Waterman v. Lawrence, 496. Waterman v. Sprague, 329. Watkins v. Brunt, 376. Watson V. Brown, 292. Watson V. Bushmore, 299. Watts V. Boom. Co., 493. Wayland v. Tysen, 262. Weaver v. Barden, 320. Weaver v. Carnahan, 220. Weaver v. McElhenon, 154 Webb V. BidweU, 339, 341. Webb V. Cecil, 487. Webb V. Nickerson, 219. Webb V. Ry. Co., 427. Webb V. Smith, 315, 316. Webber v. Williams CoUege, 331. Weber v. Ry. Co., 214, 460, 461. Webster V. Bond, 217. Webster v. Cont. Ins. Co., 386. Webster v. Tibbitts, 280. Weed V. Burt, 508. Weeks v. Cornwall, 279. Wheeler, etc., Co. v. Worrall, 347. Weide v. Porter, 385. Welder v. Overton, 162. Welch V. Piatt, 198. Weller v. Eames, 450. Weller v. Hersee, 315. Welles V. Webster, 374. Wellington v. Kerosene Oil Co., 428. Wellington v. SmaU, 405. Wells V. Cook, 427. Wells V. Stewart, 226. Wells V. Yates, 544. Wellsville v. Geisse, 393. Wentworth v. Wentworth, 323. Werk V. Christie, 262. West V. Imp. Co., 182, 183. Westcott V. Brown, 394. W. U. Tel. Co. V. Reed, 354. W. U. Tel. Co. V. Young, 354. Weston V. Limiley, 247, 529. Westphal v. Henney, 292. Wesy V. Hayes, 376. Wetherell v. Clerkson, 526. Wetmore v. San Francisco, 314, 38t 393. Wheatley v. Strobe, 478. Wheeler & Appleton's Case, 411. Wheeler v. Billings, 211, 315. Wheeler v. Bluckman, 516. Whelan v. Kinsley, 332. Whetstone v. Beloit, etc., Co., 191, White V. Allen, 265. White V. Culver, 297. White V. Freese, 203. White V. Lockwood, 516. White V. Lyons, 201. White V. Mayor, 296. White V. Phelps, 314, 478. White V. Smith. 364. White V. Spencer, 272. White V. Stanley, 314. White V. Tucker, 531. Whitford v. Company, 408. Whiting V. Eichelberger, 303. Whitney v. Clarendon, 471. Whitney v. Ry. Co., 186, 187. Whittem v. State, 154. Whittemore v. Weiss, 529. Whitworth v. Malcomb, 375. Whyte V. Gibbes, 501. Wicker v. Hoppock, 450. Wiggin V. Ry. Co., 522. Wiggins V. Sickel, 473. Wightman v. Coates, 519. Wilcox V. Cohn, 315, 469. Wilcox V. Lee, 515. WUcox V. McCoy, 171, 448, 464.. Wilder v. Boynton, 240. Wilder v. DeCon, 221. Wildman v. Rider, 499. Wiles V. Suydam, 180, 279, 28(t Wilhite V. Hamrick, 289. Wilkins v. Moore, 347. xlviii TABLE OF CASES. The references are to pages. Wilkins v. Stidger, 373. Wilkinson v. Applegate, 347. Wilkinson v. Green, 542. WiUard v. Holmes, 530. Willard v. Reas, 286. Willard v. Stone, 520. Williams v. Bankhead, 482. Williams v, Esling, 407. WilUams v. Flight, 185. Williams v. Healey, 316. Williams v. Hitzie, 155. WiUiams v, Jones, 512. WiUiams v. Lowe, 184, 188, 386. Williams v. McGrade, 284. Williams v. Meeker, 542. Williams v. Mostyn, 406. Williams v. Norton, 314, 478. Williams v. Randon, 299. Williams v. Ritchey, 154. Williams v. Rochester, 548. WiUiams v. Slote, 201. Willoughby v. Thomas, 474. Wills V. Wills, 382. Willson V. Cleveland, 245. Wilson V. Jackson, 518. WUson V. Ray, 515. Wilson V. Poole, 206. Wilson V. Ry. Co., 430. Wilson V. Runyon, 526. Wilson V. Smith, 179, 187. Wilson V. Stilwell, 451, 452. Wilson V, Wilson, 141. Winchell v, Noyea. 440. Windbiel v. Carroll, 454. Wing V. Davis, 541. Wing V. Dugan, 366. Winne v. Col. Spr. Co., 315. Winona v. Burke, 335. Win. Lake Co. v. Yoiing, 337. Winterbottom v. Wright, 424, 425. Winterburn v. Brooks, 409. Winters v. Bank, 541. Wiscart v. Dauchy, 556. Wisconsin v. Pelican Ins. Co., 380. Wisner v. Ocumpaugh, 217. Wiswell v. Teft, 322. Wiswell V. The Cong. Ch., 241, 353 Wolcott V. Farlan, 300, 332. Wolcott V. Standley, 480. Wolf V. Powner, 559, Wolf V. Scarborough, 415. Wolf V. W. U. Tel. Co., 330. Wolfe V. Howes, 474, 508. Wood V. Ostram, 398. Wood V. Seely, 191. Wood V. Squires, 548. Wood V. Wand, 406. Woodbury v. Deloss, 177. Woodman v. Saltonstal, 276. Woodrufif V. Cook, 523. Woods V. Finnell, 530. Woodward v. Anderson, 454. Woodward v. Wood, 541. Woodworth v. Knowlton, 363, 393. Woolen Mills Co. v. Titvis, 373. Wooley v. Lyon, 422. Woolsey v. Trustees, 300. Wooster v. Lyons, 155. Worden v. Sharp, 325. Work v. Cowhick, 325. Workman v. Campbell, 375. Worley v. Moore, 295. Wormouth v. Crainer, 527. Wormouth v. Hatch, 339, 844, 345. Won-all V. Munn, 178, 193. Wright V. Bacheller, 247. Wright V. Bundy, 484. Wright V. Butler, 212. Wright V. Chandler, 467. Wright V. Compton, 448. Wright V. Connor, 180, 198, 279, 286. Wright V. Hawkins, 334, 337. Wright V. Schmidt, 357. Wright V. Smith, 278, 279. Wright V. Wright, 419. Wynn v. AUard, 458. Wynn v. Garland, 322. Y. Yates V. Whyte, 214, 460. Yik Hon v. Water Works, 535., Young v. Duhme & Co., 289. Young v. Glascock, 391. TABLE OF CASES. xlix J%€ references are to pages Young V. Hichens, 523. Young V. Marshall, 439, Young V. Martin, 292, 560. Young V. Whittenhall, 280. Young V. Wright, 381. Young V. Young, 347. Y. M. C. Assn. v. Dubach, 321. z. Zabriskie v. Smith, 284, 48L Zeidler v, Johnson, 356. Zeig V. Ort, 527. Zorn V. Zom, 286. NOTE. — The references in this work to " Stephen on Plead- ing " are to Andrews' edition, 1894, unless otherwise designated in the reference. ^ i»/G ^jCjuuch^ THE PEINCIPLES OF PLEADING. INTRODUCTION. 1. The Objects of Litigation. — The ultimate end of the law is the conservation of rights. Compensation by way of damages is a subordinate end, resorted to in particular in- stances wherein the law has otherwise failed of complete pro- tection. When legal rights are not invaded, the supreme end of the law and its administration has been realized in the entire security of rights. When invasion of a right is threat- ened, and the law restrains the would-be-wrong-doer, the right itself is fully protected. But when, after a wrongful invasion, the law restores the object of the right, or when the law gives damages for injury sustained by such invasion, it only ap- proximately protects the right. Paradoxical as it may seem, litigation is a conservator of fthe peace ; it not only ends particular controversies, it estab- lishes principles, it lessens contention, and promotes harmony, confidence, and security. Litigation is a refuge from violence, oppression, and fraud. When impartial tribunals for the determination of controversies were substituted for the phys- ical force of the parties, it was a great stride in the progress of civilization ; when such tribunals came to be guided by definite rules, the science of jurisprudence had its birth, 2. Subjects of Jurisprudence. — The subjects of juris- prudence are, rights and laws. Rights arise from facts, made operative by law. From certain kinds of facts proceed rights, and from other kinds result infringements of rights. The laws define and establish rights, and restrain and compensate infringements thereof. One of the principal functions of government is, to protect rights, and enforce performance of correlative duties ; in other words, to administer justice. §§ 3-4 INTRODUCTION. 2 It is the ofl&ce of judicial tribunals to hear and determine controversies respecting rights and infringements thereof, and to apply the law to the ascertained state of facts. ^ Ex facto oritur jus. 3. Classification of Facts. — The facts with which the law and its administration are concerned may be divided into two classes ; operative facts, and evidential facts. Operative facts are (1) such acts and events as operate u^jder the law to invest some one with a legal right, and are hence called investitive facts ; (2) such as operate to divest some one of a legal right, and are hence called divestitive facts ; and (3) such as work a wrongful interference with an existing legal right, and are hence called culpatory facts. And such facts as in their nature tend to prove or disprove the existence of any of the operative facts aforesaid are called evidential facts.^ 4. Divisions of the Law. — All law may be divided into (1) substantive law, by which rights and duties are defined and established, and (2) the law of procedure, which pro- vides and regulates a course of action whereby the require- ments of the substantive law may be enforced in particular cases of violence to rights so defined and established. The substantive law operates proprio vigors, at all times, and upon all persons; the law of procedure operates only upon occasion — when put in operation to prevent or to redress the infringe- ment of a right. ' Judge Dillon says : " It is to correlate with evidential, while protect and enforce public and pri- operative does. The term ultimate vate rights, that courts, with their facts does not express, or even con- judges and officers, their jurisdic- note, the idea of a relation between tion and machinery, are estab- such facts and the substantive law, lished and maintained. Their usual while the term operative facts function, their most obvious use, is does ; and this relation is the very to decide civil and criminal causes. " principium of the science of plead- Yale Lectures, 152. ing. The terms " investitive " * Some of the terms employed in and " divestitive " have been used this classification are new. What by Bentham, Austin, Smith, and are here denominated " operative Holland. The use of " culpatory " facts " are usually called " ultimate has less sanction. The Roman law- facts." But ultimate is opposed to yersusedc?iZpa,therootof the word, initial or inchoate, and would ap- to denote an actionable wrong, free ply as well to evidential facts as to from intention. The term " evi- operative facts. Ultimate does not dential " is in common use. 4,<,t4ra^t:^»M^^ ^4^j2r.-jv^c- '^ jvA^ ',-, f-'^^^ \ \ /, IJbJ^.iJ^ Steph. PL 62-66, and note 2 on page 62. 47 g 52 HISTORY OF PLEADING. 48 writ, showing the manner of service thereof.^ In more modern practice, however, this writ was sometimes dispensed with in personal actions, and a proceeding by hill substituted. This is a proceeding founded originally upon a privilege of the plaintiff or defendant because of his official relation to the court, and afterward, by resort to a fiction, extended to other suitoi"s.2 The theory of the English law is, that the king is the fountain of justice, and that the courts of law, being only substitutes for the crown in the administration of justice, should take cognizance of only such matters as are expressly referred to them by original writ, issued in the king's name, and under the great seal. But in this country, the courts derive their jurisdiction from the constitution and the laws, and require no original writ to confer it. In England, this writ is now disused in the ordinary actions. 52. Form of Original Writ. — Following is the form of an original WRIT OF COVENANT. George the Fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, and so forth, to the sheriff of Middlesex, greeting : Command C. D., late of , gentleman, that justly and without delay he keep with A. B. the covenant made by the said C. D. with the said A. B., according to the force, form and effect of a certain indenture in that behalf made between them, as it is said. And unless he shall so do, and if the said A. B. shall make you secure of prosecuting his claim, then summon, by good summoners, the said C. D., that he be before us, in eight days of Saint Hilary, whereso- ever we shall then be in England, to show wherefore he hath not done it ; and have you there the names of the summoners, and this writ. Witness ourself at Westminster, the day of in the year of our reign.^ 1 Steph. PI. 63, 64. » Steph. PL 78, 79. a Steph. PL 128-131. 49 COMMON-LAW PROCEDURE. §§ 53-55 53. Process and Appearance. — In early times, the actual appearance of the parties, either in person or by attorney, was requisite. If the defendant did not appear in obedience to the original writ, there issued from tlie court of common law into which the original writ was returned, judicial writs, called writs of process, to enforce his appearance.^ These successive writs, issued to compel compliance with the origi- nal writ, and founded on that writ, are called original process^ to distinguish them from mesne process, which issues pending the suit, upon some collateral matter — as, to summon juries, witnesses, and the like ; and mesne process is again distin- guished from final process, or process of execution. ^ 54. Pleadings Delivered Orally. — When the appearance of the defendant was procured, in obedience to the original writ, or by means of judicial process, the plaintiff was required to appear also ; and both parties being present, in person or by attorney, thereupon followed the allegations of fact, alter- nately made, whereby the court was informed of the nature of the controversy. These allegations were made viva voce, by the parties, or by professional pleaders, called advocates, and in open court in the presence of the judges. These oral allegations, at the first called loquela, were afterward de- nominated the pleadings. It was the duty of the judges to superintend this oral contention, so as to bring the pleaders ultimately to some specific matter affirmed on one side and denied on the other, called the issue. During this oral alter- cation, an officer of the court made up a minute in writing of the alternate allegations of fact, to and including the issue. This minute of the pleadings, together with a short statement of the nature of the action, and of other incidents and pro- ceedings in the case as it progressed, constituted, when made on the parchment roll, what was called the record. This record, so far as it recited what took place in the progress of the case, was held to import absolute verity, and could not be contradicted. 55. Written Pleadings. — The actual appearance of tlie parties, and the oral delivery of the pleadings in open courl, ' Steph. PI. 97. « 3 Bl. Com. 279. i, 56 HISTORY OF PLEADING. 50 are practices that have long since disappeared. The plaintiff is considered as already in court, by the bringing of the action. The defendant, when not arrested, appears by making a formal entry of appearance in the proper office ; and in case of arrest, he appears by giving bail to the action.^ The pleadings are written out by the parties or their attorneys, and delivered to the opposite parties, or filed in the proper office. For about four centuries prior to 1731 A. D., the pleadings and the record were in the Latin language ; since that date, they have both been framed in English. The record, drawn up from the minutes made contempora- neously with the oral pleadings as they were delivered in open court, was, of course, written in the third person. The written pleadings, when brought into use, pursued, and still pursue, the same style of allegation, and are expressed as if they were extracts from the record ; thus, " A. B. complains," or, " Now comes the said C. D. and says." With the introduction of written pleadings, the manner of allegation became more orderly and uniform, rules of state- ment were prescribed and enforced by the courts, method was observed and precedents were followed, until there was developed a connected and orderly system, regulating not only the order but the individual construction of the suc- cessive pleadings. The orderly pleadings of fact in use at common law are, declaration, plea, replication, rejoinder, sur- rejoinder, rebutter, and surrebutter. After the surrebutter, the pleadings have no distinct names ; and it is doubtful if in any case the pleadings have been carried beyond those named. n. OF THE DECLARATION. 56. Its Parts and Requisites. — The pleadings begin with the declaration, which is a written statement on the part of the plaintiff, in methodical and legal form, of the facts which constitute his right of action. In real actions it was formerly called the count, but now, in both real and per- sonal actions, it is commonly called the declaration ; and » Steph. PI. 104 ; 3 Bl. Com. 287, 290. 51 COMMON-LAW PROCEDURE. § 66 when the declaration embraces two or more causes of action, or when it contains several statements of one and the same right of action, each several statement is called a count, and all of the counts, taken collectively, constitute the declarar tion. The general requisites of a declaration are ; (1) that it correspond with the preceding writ of process, (2) that it contain a statement of the facts necessary in law to sus- tain the action, and (3) that these be stated with certainty and truth.^ The particular requisites of a declaration are these six : (1) the title of the court and the term thereof ; (2) the venue, which is a statement of the county in which the facts occurred, and wherein the cause is to be tried ; (3) the com- mencement, stating (a) the names of the parties to the action, (5) how the defendant has been brought into court, and (c) the form of the action ; (4) the body, or a state- ment of the right of action ; (5) the conclusion or ad damnum — " to the damage of the plaintiff," etc. ; (6) the profert.2 More than one count may be inserted in the same declara- tion ; and "it was formerly the practice, in some forms of action, to insert two or more counts upon one set of facts, making several causes of action where there was only one right of action. This was done to avoid the consequences of a variance between the declaration and the evidence ; for if the evidence sustained any one of the counts, the plaintiff would recover. Where several counts are inserted in one declaration, each count must be sufficient in itself ; that is» it must contain a complete cause of action. Counts sound- ing in contract and counts sounding in tort cannot be joined in the same declaration.^ The commencement of the declaration should contain a recital of the original writ ; and the right of action stated in the declaration should conform to and agree with the com- plaint made in the writ. The original writ gives the court 1 1 Ch. PI. 244 ; Steph. PI. 416 ; M Ch. PI. 240^120. Gould PL iv. 51. s Nimocks v. Inks, 17 Ohio, 596. ^ 57 HISTORY OF PLEADING. 52 cognizance of the action, and is the foundation of all the subsequent proceedings therein, and departure from it in the declaration is said to " abate the writ," and leave the court without authority to proceed in the action.^ The declaration should, in its conclusion, lay damages, and allege production of suit. In personal and mixed actions, it must be alleged that the injury complained of is to the damage of plaintiff, and must specify the amount of the damage ; and in all actions, the plaintiff must allege produc- tion of suit — '' and thereupon he brings his suit." This formula grew out of the requirement in ancient times that the plaintiff should, on making his complaint, bring with him a number of persons, called his suit or secta, to confirm his statements. The formula is all that remains of this ancient practice. 57. Form of Declaration. — Following is the form of a DECLARATION IN COVENANT. In the King's bench, Term, in the year of the reign of King George the Fourth. Middlesex, to wit, A. B., the plaintiff, by E. F., his attorney, complains of C. D., the defendant, who has been summoned to answer the said plaintiff, in an action of covenant : For that whereas heretofore, to wit, on the day of , in the year of our Lord , by a certain indenture then and there made between the said plaintiff of the one part, and the said defendant of the other part (one part of which said indenture, sealed with the seal of said defendant, the said plaintiff now brings here into court, the date whereof is the day and year aforesaid), the said plaintiff, for the con- sideration therein mentioned, did demise, lease, and to farm let, unto the said defendant, a certain messuage or tenement, and other premises in the said indenture particularly speci- fied, to hold the same, with the appurtenances, to the said defendant, his executors, administrators and assigns, from the twenty-fifth day of March next ensuing the date of said « Gould PI. iv. 51. 53 COMMON-LAW PROCEDURE. §57 indenture, for and during and unto the full end and term of seven years from thence next ensuing, and fully to be com- plete and ended at a certain rent payable by the said defend- ant to the said plaintiff, as in the said indenture is mentioned. And the said defendant, for himself, his executors, admin- istrators and assigns, did thereby covenant, promise and agree, to and with the said plaintiff, his heirs and assigns, amongst other things, that he, the said defendant, his execu- tors, administrators and assigns, should and would, at all times during the continuance of the said demise, at his and their own costs and charges, support, uphold, maintain and keep the said messuage or tenement and premises in good and tenan table repair, order and condition ; and the same messuage or tenement and premises, and every part thereof, should and would leave in such good repair, order and con- dition, at the end, or other sooner determination of the said term, as by the said indenture, reference being thereunto had, will, among other things, fully appear. By virtue of which said indenture, the said defendant after wai'd, to wit, on the twenty-fifth day of March, in the year aforesaid, entered into the said premises, with the appurtenances, and became and was possessed thereof, and so continued until the end of the said term. And although the said plaintiff hath always, from the time of the making of the said indenture, hitherto done, performed and fulfilled, all things in the said indenture contained on his part to be performed and fulfilled, yet the said plaintiff saith that the said defendant did not, during the continuance of the said demise, support, uphold, maintain and keep the said messuage or tenement and premises in good and tenantable repair, order and condition, and leave the same in such repair, order and condition, at the end of the term ; but for a long time, to wit, for the last three years of the said term, did permit all the windows of the said mes- suage or tenement to be, and the same during all that time were, in every part thereof, ruinous, in decay, and out of repair, for want of necessary reparation and amendment. And the said defendant left the same, being so ruinous, in decay and out of repair as aforesaid, at the end of the said term, contrary to the form and effect of the said covenant so 4^53 HISTORY OF PLEADING. 54 made as aforesaid. And so the said plaintiff saith that the «aid defendant, although often requested, hath not kept the said covenant so by him made as aforesaid, but hath broken the same, and to keep the same with the said plaintiff hath hitherto wholly refused, and still refuses, to the damage of the said plaintiff of pounds ; and therefore he brings his suit, etc. m. OF PLEAS — DILATORY. 58. Dilatory Pleas Defined and Classified. — The first pleading on the part of the defendant, and which opposes matter of fact or denial to the declaration, is called a plea. Pleas are divided into pleas dilatory, and pleas in bar ; and the latter— sometimes called " peremptory pleas," and some- times " pleas to the action " — are again divided into pleas by way of traverse, and pleas in confession and avoidance. Dilatory pleas are such as tend merely to delay the action by questioning, not the right of action, but the propriety of the suit as brought. They delay, and sometimes defeat, the particular suit, without affecting the merits of the plaintiff's demand. Dilatory pleas are divided into (1) pleas to the jurisdiction, (2) pleas to the disability of the person, and (3) pleas in abatement. A plea to the jurisdiction is one th0.t questions the juris- diction of the court to entertain the action. Such plea alleges facts to show want of jurisdiction, and then prays the judgment of the court whether it will take further cognizance of the suit. A plea to the disability of the person is one that alleges some legal disability of the plaintiff to sue, or of the defend- ant to be sued, and prays judgment whether the defendant ought to be compelled to answer. A plea in abatement is one that shows some ground for abating either the original writ, or the declaration. Pleas of this class are founded upon some legal defect in the writ or declaration ; as, that the defendant is misnamed therein, or that the declaration does not pursue the writ, pr that there is repugnance between them, or that there is a prior action pending between the same parties, for the same cause. An 55 COMMON-LAW PROCEDURE. §g 50-60 insufficiency apparent upon the face of the declaration, and without reference to the writ, or other extrinsic matter, is not ground for abatement, but must be taken advantage of by demurrer. A plea in abatement prays judgment of the writ, or the declaration, and that the same may be quashed. 59. Dilatory Pleas Odious in Law. — Formerly, dilatory pleas were often resorted to merely for delay, and without an}^ foundation in truth ; and for this reason, and because their object always is to suspend or defeat a suit upon grounds other than its merits, they are regarded unfavorably in law, and the greatest precision is required in their con- struction and use. They must be pleaded at a preliminary stage of the action ; that is, before a plea in bar. They must be pleaded in due order ; that is, first, to the jurisdiction ; secondly, to the disability ; thirdly, to the declaration ; and fourthly, to the writ ; and all pleas in abatement must give the plaintiff a better writ or declaration. This last require- ment is to enable the plaintiff to cure the defect relied upon, and to frame a new writ or declaration that will not be obnoxious to the same objection. For example, if a mis- nomer is the ground of a plea in abatement, the plea must state the true name.^ 60. Judgments on Dilatory Pleas. — If a dilatory plea be sustained, either upon an issue in fact or upon an issue in law, the judgment is, that the cause be dismissed from that jurisdiction, or that the writ or declaration be quashed, or that the suit be stayed until the disability be removed. If an issue in law upon such plea be decided for the plaintiff, the judg- ment is, that the defendant answer over ; that is, that he plead again, either in bar, or by a dilatory plea subsequent in order to the one upon which the judgment is entered. This is called a judgment of respondeat ouster. If an issue in fact upon such plea be decided for the plaintiff, the judgment is, that he recover. Such judgment is called a judgment quod recuperet, and may be either final or interlocutory. If the action be one for damages only, and the issue be in law, or in fact and not tried by jury, the judgment is only that the ' Steph. PI. 420, 424. §§61-62 HISTORY OF PLEADING. 5(; plaintiff ought to recover. Upon this interlocutor 1/ jxidgment a writ of inquiry issues to the sheriff, commanding him to summon a jury and assess the amount of damages sustained. Upon return of this inquisition, the plaintiff is entitled to a final judgment for the amount of damages so assessed. But if such issue in fact be, in the first instance, tried by a jury, the damages are then assessed, and final judgment entered therefor. If the action be not for damages only, a judgment for the plaintiff is, in general, final in the first instance. IV. OF PLEAS — BY WAY OF TRAVERSE. 61. Pleas in Bar Defined and Classified. — It has been shown that dilatory pleas are such as tend merely to divert the action to another jurisdiction, or to suspend or delay further proceedings therein, without at all impugning the merits of the plaintiff's demand. A plea in bar, on the other hand, goes to the merits of the plaintiff's demand, and shows some ground for barring or defeating the action upon its merits. A dilatory plea makes a merely formal objection to the proceeding; a plea in bar makes a substantial and con- clusive answer to the plaintiff's demand. The former ques- tions only the propriety of the suit, while the latter questions the right of action. A plea in bar may oppose matters of fact or of denial to the right of action stated in the declaration, in either of two ways ; (1) it may deny the truth of all or any of the material facts alleged in the declaration, or (2) it may admit the facts so alleged, and state other facts to show that, because of such new facts, those alleged by the plaintiff do not give him a right of action. In the former case, the defendant is said to traverse the matter of the declaration ; in the latter, to con- fess and avoid it. Pleas in bar are therefore divided into pleas bi/ way of traverse^ and pleas hy way of confession and avoidance. 62. Pleas by Way of Traverse. — Traverse means, liter- ally, anything that hinders, thwarts, or obstructs. In plead- ing, it is the denial of some matter of fact alleged on the other side, and may be interposed to any pleading of fact. 57 COMMON-LAW PROCEDURE. §62 A plea by way of traverse is said to tender issue upon the matters of fact so traversed, and should conclude by a formal offer to refer the issue thus tendered to some authorized mode of trial.^ If the offer be to refer the issue to the decision of a jur}'-, the usual formula is, " and of this he puts himself upon the country." This is known as the "conclusion to the country," as distinguished from the formal conclusion of a plea containing new matter, which is, " and this the said de- fendant is ready to verify," and is known as a " verification." When a pleading of the plaintiff concludes to the country, it does so in these words : " And this the said A. B. prays may be inquired of by the country." And when either party concludes to the country, the issue, if well tendered both in point of substance and in point of form, must be accepted by the other party. This is done by adding what is called the similiter^ or joinder in issue, which is in these words : " And the said doth the like." ^ A plea of a record concludes, of course, with a verification — " And this the said defendant is ready to verify by the said record ; " and a plea of nul tiel record also concludes with a verification, and the other party then closes the issue by reaffirming the existence of the record, and praying that it may be inspected by the court.^ The requirement that an issue well tendered must be joined, is peremptory ; because, to allow a party to make any other reply to a mere denial of what he had before alleged, would be to authorize an abandonment of the ground at first taken by him. ^ The several modes of trial pro- there is no such record. This issue vided by the common law in civil is triable only by inspection of the cases are seven : (1) by record ; (2) record by the court. The other by inspection, or examination ; (3) modes of trial by common law, ex- by certificate ; (4') by witnesses cept trial by jury, are rarely, if (without jury) ; (5) by wager of ever, used in the United States, battle ; (6) by wager of law ; and Substantially all issues in fact, ex- (7) by jury. 3 Bl. Com. 330. Trial cept that of mil tiel record, are by record is used in only one in- therefore triable by jury. Gould stance, and that is where a matter PI. vi. 16, 17, 18 ; Steph. PI. 189. of record, as a judgment or the ^ steph. PI. 150, 166, 291 ; Gould like, is pleaded, and the opposite PL vi. 20. party pleads nul tiel record— that » Steph. PI. 288 ; Gould PI. vi. 17. §§ 63-84 HISTORY OF PLEADING. 58 Traverses maybe divided, according to the form and scope of the denial, into four kinds ; the general traverse, the com- mon traverse, the special traverse, and the traverse de injuria. 63. The General Traverse. — A general traverse is one that denies all that is alleged in the pleading to which it is addressed. As a plea, it is a compendious denial of the whole of the declaration. In most, if not all, of the ordinary actions, there is a fixed and appropriate form of general trav- erse of the declaration, called the general issue in that action. These formal traverses are called general issues, because they import an absolute denial of what is alleged in the declaration, and amount at once to an issue, and be- cause the issue so made is general and comprehensive, in- volving as it does the whole declaration. This form of general traverse, called the general issue, occurs only as a plea — the second in the series of pleadings. It is a general rule, that when a plea amounts to the general issue, it should be so pleaded ; though special pleas, amounting to the gen- eral issue, are, it seems, sometimes allowable, in the discre- tion of the court.^ The general issue is pleaded by a short and simple formula, yet it is tantamount to a specific and literal negation of all the material allegations of the declaration. The scope of the general issue in the different actions — the matters put in issue by it, and the evidence admissible under it — is one of the most important topics of the common- law system of pleading. The names, and the general scope and operation of the general issues, will be hereafter stated in connection with the description of the different forms of action wherein such traverse may be pleaded. 64. The Common Traverse. — The common traverse is a direct contradiction, modo et forma^ of some particular matter alleged by the opposite party. It is usually negative in form, but when it traverses a negative allegation, it should be affirmative in form, otherwise it would not make an issue.^ It always concludes to the country. For ex- ' Steph. PI. 407 ; Gould PI. vi. » Post, 360. 85-87. 59 COMMON-LAW PROCEDURE. ^ ' §65 ample, if a lessor sue his lessee for breach of covenant to repair, alleging in the declaration the leasing by indenture, the covenant of the defendant to maintain and repair, his enjoyment of the premises for the term, and that he left the same "ruinous, in decay, and out of repair " — as in the form of declaration in section 57, ante, the defendant may, by common traverse, deny the single allegation that the prem- ises were out of repair. His plea would be in this negative form : " And the said defendant says, that said premises were not, in any part thereof, ' ruinous, in decay, or out of repair,' in manner and form as the said plaintiff hath com- plained. And of this he puts himself upon the country." A plea of the statute of limitations is negative in form ; as, " that the defendant did not, at any time within six years next before the commencement of this action, undertake or promise, in manner and form as the plaintiff hath above com- plained." To such plea, the replication of the plaintiff, using the common traverse, would be in this affirmative form : " And the said plaintiff says, that the said defendant did, within six years next before the commencement of this suit, undertake in manner and form as he the said plaintiff hath above complained. And this he prays may be inquired of by the country." ^ In each of these instances the traverse is in terms of the allegation traversed, and by way of direct contradiction ; though in one case it is negative, and in the other affirmative in form. G5. The Special Traverse. — The two kinds of traverse that have been described consist exclusively of denials ; the general traverse denying all, and the common traverse deny- ing, generally, some particular part only, of the matters last alleged on the opposite side. By neither of these forms of traverse can any new matter be alleged. But it is some- times necessary that the denial of an allegation be explained or qualified, instead of being put in the direct and absolute form of either a general or a common traverse ; or that the denial be accompanied by affii-mative matter, in order that the materiality of the denial shall appear. For example, 1 Steph. PI. 239. ^63 HISTORY OF PLEADING. 60 suppose a declaration charge false imprisonment on the first of May, and the fact be that the defendant, as sheriff, arrested the plaintiff under a writ issued on the tenth of May. He can not, by a general traverse, deny all that is alleged in the declaration, because, without the affnmative fact of the writ, the declaration is all true except the date ; and, so far as would then appear, the date is not material, for the act charged is as wrongful on one day as on another. For the same reason, he can not deny, by a common traverse, that he imprisoned him on the day charged. And an affirmative plea of his office and his writ would not justify the arrest charged, because the writ did not exist at the date of the alleged arrest. It is clear that he must show, affirmatively, his office, his writ, the arrest under it, and that such arrest is the same one charged ; and he must then deny that he arrested the plaintiff on the first of May as charged. These affirmative facts, while they deny nothing, are inconsistent with the declaration ; and they show that the time of the arrest, although generally immaterial, is, in this special case, material. The time alleged being thus made material, the denial becomes material. If, in the case supposed, the dec- laration charged the imprisonment to have been in a certain county, and the defendant was sheriff of another county, wherein he made the arrest, he can not, by a general traverse, deny the whole declaration ; he can not, by a common trav- erse, deny the allegation as to place, for the place, as well as the time, is immaterial in the declaration ; and he can not plead his authority as a justification, for the arrest will not appear to be the same. He must allege his office, his writ, the arrest by virtue thereof, and that the arrest alleged is the same as the one complained of ; and he must deny the arrest in the county named in the declaration .^ Such defense, when pleaded, is called a special traverse. It is a pleading of peculiar character, in that it both discloses new matter, and denies matter previously alleged. 66. Special Traverse — Defined and Analyzed.^-Wemay therefore define a special traverse to be, an affirmative state- 1 Evans PI. 24. 25 ; Steph. PI. 243-260. (jj COMMON-IAW PROCEDURE. §67 ment of facts inconsistent witli those alleged by the opposite party, followed by a denial of allegations rendered material by such affirmative statement. The affirmative part of a special traverse is called the inducement, and the negative part is called the absque hoc — these being the words by which this technical form of negation was formerly introduced. The inducement, while it is always repugnant to, and incon- sistent with, all or some part of the adverse pleading, does not properly make an issue, because it alleges new matter, and because both allegations are in the affirmative. The absque hoc, being a denial of material allegations, does tender an issue. Considering only the inducement, such pleading should conclude with a verification ; but considering only the denial, it should conclude to the country. We accordingly find a diversity in the authorities, as to how a special traverse should conclude. Upon principle, it would seem that where the special traverse embraces the whole substance of what is alleged on the other side, it should conclude to the country ; but if it embrace only a part of what is alleged on the other side, it should conclude with an offer to verify, thus leaving the pleadings open so that the adverse party may plead to the matters stated in the inducement. ^ 67. Special Traverse — Its Object and its Form. — The object of the special traverse is twofold : (1) it enables the pleader to avail himself of affirmative defensive matter which,, if taken alone, would be only an indirect and argumentative denial, and hence not pleadable ; ^ and (2) it enables him to- traverse an allegation that would appear immaterial, and hence not traversable, if denied by any other form of traverse.^ The inducement contains matter that is in substance an answer, but it is only an indirect denial ; the absque hoc is added to put the denial in direct form. The form of a denial in a special traverse is anomalous. * Gould PI. vii. 14-24. By the from pleading to the inducement. Pleading Rules of Hil. T. 4 Will. 1 Chit. PI. 741. IV. all special traverses are to con- ' Steph. PI. 253. elude to the country ; but this shall ' Evans PI. 24. not preclude the opposite party § 68 HISTORY OF PLEADING. 62 After the characteristic words, " absque hoc,^^ the matter in- tended to be denied is stated affirmatively. For example, if a plaintiff show title in himself by alleging " that A. B. devised the land to him," and then died seized in fee ; the defendant may plead that A. B. died intestate, seized in fee, leaving the defendant his sole heir at law, to whom the land descended : Without this, " tliat A. B. devised the land to the plaintiff." Such plea would be a special traverse ; the alle- gation of A. B.'s intestacy is the inducement, and the part beginning with the phrase, " without this," is the denial of the alleged devise ; and is technically termed the absque hoc. How this phraseology came to import a denial, is neither easy to learn, nor important to know. In some instances, however, the denial is introduced by other words of equiv- alent import. " Ut non " has been held sufficient. This form of traverse is a relic of the subtle genius of the ancient pleaders, and the rules and distinctions connected with its use are supposed to be among the most intricate in the whole science. It was formerly of frequent occurrence, but is said to have fallen into comparative disuse.^ There are some defenses, however, that can not be made avail- able without combining both denials and new matter in one defense ; and for this reason, a defense similar to the special traverse is allowable under the Reformed Proced- ure. ^ 68. The Traverse de Injuria. — There is yet another kind of traverse, called the traverse de injuria sua propria absque tali causa ; or, as it is compendiously called, the *' traverse de injuria.^'' It occurs only in the replication, and can be used only in certain actions, and when the plea contains matter of excuse. It does not, like the special traverse, follow the words of the allegations traversed, but, like the general issue in its denial of the allegations of the declaration, this traverse denies the whole matter of the plea, by a general and comprehensive formula, devised for the pur- pose of abridging the replication. The import of this form 1 Steph. PI. 251-261 ; Gould PI. ^ Post, 245. vii. 8 ; Evans PL 24, 33. ea COMMON-LAW PROCEDURE. §68 of traverse is, to insist that the defendant committed the act complained of, under circumstances altogether different from those insisted on by the plea. For example, if to an action of trespass for assault and battery, the defendant pleads son assault demesne, — that the plaintiff made the first assault, — the plaintiff, instead of traversing specially the several allegations in the plea, may deny the whole, by replication de injuria. The form of such traverse would be " that the said defendant, at the said time when, etc., of his own wrong, and without the cause by him in his said plea alleged, com- mitted the said trespass in the introductory part of that plea mentioned, in manner and form as the said plaintiff hath in his said declaration complained ; and this he prays may be inquired of by the country." It will be seen that this form of traverse differs essentially from the special traverse. The inducement, de injuria, etc., alleges no new matter, but only reaffirms, in general terms, the wrong complained of in the declaration ; and the traverse, absque tali causa, is an abridged denial of the special justification. The replication de injuria was formerly limited to the actions of trespass and case, but it has been permitted in replevin, in debt, and in assumpsit. This traverse always concludes to the country. This is so for two reasons : (1) since it contains no new matter to be answered, there is no reason for longer keeping the pleadings open ; and (2) since it traverses the whole of the plea, it can not be immaterial, and, if not faulty in form, must be accepted by the defendant. This form of denial is not only restricted to the denial of what is pleaded as an excuse ; it is improper if the plea contain matter of record, of title, or of authority derived from the plaintiff. The reasons are : (1) de i^ijuria concludes to the country, and a jury is not the proper tribunal to pass upon a record ; (2) where title is involved, the trav- erse should be moie direct, and the issue less complicated ; and (3) where authority from the plaintiff is pleaded, he knows whether it is true, and should either admit it, or deny it specifically. 1 1 Steph. PL 242 ; Gould PI. vii. 9, 17, 27 ; Ames' Cases on PI. 143. g§ 69-'i 1 HISTORY OF PLEADING. 64 V. OF PLEAS — IN CONFESSION AND AVOIDANCE. 69. General Nature of Pleas in Avoidance.— Having described the several kinds of pleas in bar by way of traverse, it remains to explain and classify pleas in bar by way of con- fession and avoidance. These are such as admit the facts alleged in the declaration, and avoid their legal effect by alleging other facts which show tha.t the plaintiff either never had a right of action, or that his right is barred by some super- venient fact. Pleas by way of confession and avoidance do not traverse the facts stated in the declaration, and therefore do not tender issue, and do not conclude to the country. The formal conclusion of such pleas is called a verification — " and this the said defendant is ready to verify." It is a general rule in common-law pleading, that any pleading merely introducing new matter should conclude with a verifi- cation, and thus leave the pleadings open, so that the other party may either deny or avoid such new matter. 70. Pleas in Excuse, and in Discharge. — Pleas by way of confession and avoidance are usually divided into pleas in ■excuse, and pleas in discharge. A plea of the former class -•shows some justification or excuse of the matters alleged in the declaration. Such plea shows, in effect, that the plaint- iff never had a right of action by virtue of the facts by him alleged. Of this class are, the plea of son assault de- mesne, in trespass for assault and battery ; imprisonment under a warrant ; incapacity to contract ; duress, and the like. A plea in discharge shows some release or discharge of the duty stated in the declaration. The effect of such plea is, to show that although the plaintiff once had the claim stated by him, the defendant is freed from it by matter subsequent. Of this class are, pleas of payment, of release, of accord and satisfaction, the statute of limitations, and discharge in bank- ruptcy.^ 71. Plea Must Give Color. — Every pleading by way of confession and avoidance must [/ive color; that is, it must 1 Steph. PI. 865 ; 1 Chit. PI. 526. ^5 COMMON-LAW PROCEDURE. §72 admit an apparent right in the opposite party, and rely on new matter to defeat such apparent right. A plea by way of confession and avoidance must, expressly or impliedly, concede that the plaintiff has, prima facie., a right of action. ^ This is a logical requisite to justify the statement of new matter ; for otherwise, the new matter would go only in denial, and the plea would be bad, as amounting only to a traverse. For example, in an action for breach of covenant, if the defendant pleads a release, he admits the execution and the breach of the covenant, and so gives color to the dec- laration ; and if the plaintiff replies that the release was obtained by duress, he impliedly admits the execution of the release, and thus gives color to the plea. But if the plaintiff reply that he executed the release to a person other than the defendant, his replication would not give color, and therefore would not make place for his statement of new matter. The proper replication in such case would be a traverse, denying that the release pleaded is the plaintiff's deed ; and proof of the release to another, which is an evidential fact, would sustain the denial. 72. Form of Plea in Avoidance. — Following is a form of plea in bar by way of confession and avoidance, and in discharge of the right of action stated in the declaration in section 57, ante. C. D. \ And the said C. D., by G. H., his attorney, comes ats. ? and defends the wrong and injury, when and A. B. ) where it shall behoove him, and the damages, and whatsoever else he ought to defend, and says, that after the said breach of covenant, and before the commencement of thiq suit, to wit, on the day of , in the year , the said A. B., by his certain deed of release, sealed with his seal, and now shown to the court here, did remise, release, and for- ever quitclaim to the said C. D., his heirs, executors and ad- ministrators, all damages, cause and causes of action, breaches of covenant, debts, and demands whatsoever, which had then accrued to the said A. B., or which the said A. B. then had against the said C. D., as by the said deed of release, refer- 1 1 Chit. Fl. 527 ; Steph. PL 266 ; Bliss PI. 340 ; Post, 240. 5 gg 73-74 HISTORY OF PLEADING. QQ ence being thereto had, will fully appear. And this the said C. D. is ready to verify. 73. Pleas Puis Darrein Continuance. — Under the old practice, the law allowed the proceedings in a case to be ad- journed over from one term to another, or from one day to another in the same term. Such adjournment, when allowed, was entered upon the record, and was called a continuance.^ It sometimes happened that after a plea had been pleaded, and during a continuance, some new matter of defense arose. This new defense, which the defendant had not before had opportunity to plead, he was allowed, upon the day fixed by the continuance for his reappearance, to plead as a matter that had happened after the last continu- ance. A plea puis darrein continuance is not a departure from the former plea^ but is a waiver of it, and is always pleaded by way of substitution for it. Such plea may be in abatement or in bar, and is followed by replication and other plead- ings, until issue is attained. Great certainty is required in pleas of this kind, and they must be verified on oath before they are allowed.^ 74. Pleas in Estoppel. — All pleas in bar that advance new matter are called special pleas in bar, to distinguish them from pleas that do not advance new matter, but simply deny that previously alleged on the other side. Pleas by way of con- fession and avoidance, whether in excuse or in discharge, and pleas puis darrein continuance are therefore special pleas in bar. There is another kind of plea, called plea in estoppel, which is neither by way of traverse, nor by way of confession and avoidance. Estoppel arises from matter of record, from deed, or from matter in pais ; and a plea of this kind, with- out denying or admitting the matters adversely alleged, re- lies merely on the estoppel, to preclude the adverse party 1 If an interval took place with- of court by the interruption, and out such adjournment duly obtain- the parties could not thereafter ed and entered, such hiatus in the proceed in the action. 3 Bl. Com. progress of the suit was called a 316 ; Steph. PI. (Tyler's ed.) 60. discontinuance ; and the cause and ^ Steph. PI. 156 ; 1 Chit. PI. 658. the parties were considered as out G7 COMMON-LAW PROCEDURE. §§75-76 from availing himself of his averments inconsistent therewith. Such plea simply alleges the inconsistent record, deed, or act, to which the plaintiff was party or privy, and prays judgment if he shall be admitted to aver contrary thereto.^ A plea in estoppel, like one in confession and avoidance, always advances new matter in avoidance, and is, therefore, a special plea in bar, as distinguished from pleas by way of trav- erse ; but it differs from the other pleas in bar, in that it neither denies nor confesses the plaintiff's allegations. 75. Must Answer the Whole Declaration.— All pleas by way of confession and avoidance must answer the whole declaration ; that is, they must confess the whole declaration, without omission, condition, or qualification, and then must as fully avoid it. For examj)le, if in an action for slander, a special plea alleges that A. B. spoke the words, in the hearing of defendant, and that on the occasion in question the defendant simply said that he had heard A. B. say, of and concerning the plaintiff, the words charged, such plea is bad because it does not admit the speaking of the words in the unqualified sense charged in the declaration. Such plea does not give color to the declaration. Again, if the plea should allege the truth of the words, and not confess the speaking of them, a material part of the declaration would remain unanswered. The truth of the words would not be material, unless the defendant spoke them. Under this rule, a special plea that, instead of confessing the contract as stated in the declaration, should assert qualifications and conditions therein, would be bad as a special plea, for it would, in effect, controvert the plantiff's allegations, and that should be done by a traverse.^ Vr. OF PLEADINGS SUBSEQUENT TO THE PLEA. 76. The Replication. — When the plea traverses the dec- laration, and properly concludes to the country, the plaint- iff must, in general, join issue by adding the similiter. But when the plea introduces new matter, and therefore con- 1 Gould PI. i. 18 ; ii. 38, 43 ; Steph. '^ Ames' Cases on PI. 69 ; Davis v. P;. 230. Jlathevvs, 2 Ohio, 257. §77 HISTORY OF PLEADING. gg eludes with a verification, the plaintiff may reply thereto. His replication, as such reply is called, may allege matter in estoppel, may traverse the plea, may confess and avoid it, or may new assign the cause of action. The traverse, the estoppel, and the confession and avoidance have been fully explained in what has been said of pleas ; and the traverse de injuria, which is used only in the replication, has been fully explained. It remains only to explain the kind of replication called a new, or novel, assignment. Declarations are conceived in very general terms, and it sometimes happens that the defendant mistakes the plaintiff's claim, and applies his plea to a matter different from that which the plaintiff had in view. For example, in trespass for assault and battery, suppose the fact to be that the defendant had twice assaulted the plaintiff, and that one of these as- saults was justifiable, and the other, the one in fact sued for, was without legal excuse ; and suppose the defendant to justify, in a plea of son assault demesne. The plaintiff can not safely traverse this plea, by replication de injuria, because, the defendant having already applied his plea to the justifiable assault, a denial must necessarily refer to the same matter, and would therefore be an admission that the de- fendant is right as to the particular assault complained of. In such case, the plaintiff may, to remove the misconception of the defendant, file a replication describing more particu- larly the assault which he had before described too generally, and showing that he brought his action for an assault differ- ent from that referred to by the defendant. Such correction of the generality of the declaration is called a new, or novel, assignment. A new assignment is in the nature of a new declaration, and is to be followed by plea, and not by rejoinder. Of course, a new assignment may generally be guarded against by anticipation ; as in the case supposed, the declaration might charge both assaults, in separate counts, and so compel the defendant to respond to both in his plea.^ 77. Form of Replication. — Following is a form of repli- 1 Steph. PI. 281 ; 1 Chit. PI. 578. 69 COMMON-LAW PROCEDURE. g§ 78-79 cation by way of confession and avoidance, in reply to the plea in section 72. A. B. ) And the said plaintiff says, that at the time of V. } the making of the said supposed deed of release, C. D. / he was unlawfully imprisoned and detained in prison by the said defendant, until, by force and duress of that imprisonment, he, the said plaintiff, made the supposed deed of release, as in the said plea mentioned. And this the said plaintiff is ready to vertify. 78. The Rejoinder and Subsequent Pleadings. — A re- joinder is the defendant's answer to the replication. It must support, and not depart from, the plea, and is governed, in general, by the same rules that govern pleas. Surrejoinders, rebutters, and surrebutters seldom occur in pleading ; and it will be sufficient to say of them, that they are, in general, governed by the rules which govern the pre- cedent pleadings of the party using them.^ VII. OF DEMURRERS. 79. Nature and Oiflce of Demurrer. — Instead of travers- ing, or confessing and avoiding, tlie matter of the declara- tion, the defendant may, by demurrer, question its suffi- ciency in law to entitle the plaintiff to relief. Demurrer was not known to the civil-law procedure, but the court exercised a supervision over the pleadings as they were presented, and no pleading could be received or filed without the sanction and direction of the court.^ But at common law the plead- ings are filed or served without the knowledge of the court, and if the adversary party desires to have the sufficiency of a pleading determined, he must bring it to the attention of the court by demurrer. The philosophy of the demurrer has heretofore been ex- plained,3 but it may here be added, that the body of the declaration must state all that is essential to the plaintiff's recovery ; for he cannot prove a material fact not so alleged, ' 1 Chit. PI. 652 ; Steph. PI. 397. » Ante, 36. ' Ante, 43. §§80-81 HISTORY OF PLEADING. 70 and lie can recover only secundum allegata et probata. Therefore, if his recovery is limited by his proofs, and his proofs restricted to his allegations, it follows, that if his allegations are wanting in any matter essential for recovery, he can not recover, though all he has alleged be true. For these reasons, the defendant may, by demurrer, submit the case upon the facts in the declaration, admitted thereby to be true. The law requires every pleading to be sufficient in sub- stance, and to be expressed according to the forms of law ; therefore, a demurrer may be for deficiency in substance or in form, and it may be addressed to any pleading in a cause. 80. Joinder in Demurrer. — There can not be a demurrer to a demurrer ; but the party whose pleading is opposed by a demurrer must formally accept the issue in law which it tenders. This is done by a formal reaffirmance of the legal sufficiency of the pleading demurred to, called a joinder in demurrer. There is this difference between joinder in issue, and joinder in demurrer ; a party is required to accept an issue in fact, only when it is well tendered both in point of substance and in point of form ; ^ while an issue in law must be accepted, whether well or ill tendered — that is, whether the demurrer be in proper form or not ; an informal de- murrer being regarded as sufficient to bring the record before the court for inspection and adjudication.^ Failure to join in demurrer works a discontinuance of the action or the defense, as the case may be.^ 81. Form and Substance Distinguished. — All matters alleged that are essential to the right or the defense asserted are matters of substance ; and all requisite allegations not essential to the right or the defense are matters oiform. In other words, if, without reference to the manner of pleading it, the matter pleaded be in itself insufficient, the defect is in substance ; but if matter alleged be not stated in the manner, or with the fullness, required by the rules of pleading, the defect is in form. Failure to allege conversion, in an action ' Ante. 62 ; Steph. PI, 292. » Gould PI. ix. 33. 2 Steph. PI. 293. 71 COMMON-LAW PROCEDURE. §§ 82-83 of trover ; omission of malice, in an action for malicious pros- ecution ; and of consideration, in an action of assumpsit, would be defects in substance. Duplicity, argumentativeness, and a special plea equivalent to the general issue, are defects in form.i 82. General and Special Demurrers. — Demurrers are of two kinds, general and special. A general demurrer questions the sufficiency of the pleading to which it is ad- dressed, in general terms, without assigning any particular ground of objection ; a special demurrer adds to this a speci- fication of particular defects in such pleading. If the defect aimed at be one of substance, a general demurrer is sufficient ; but where the fault is in matter of form, a special demurrer is necessary. Upon general demurrer, no mere matter of form can be objected to ; but upon special demurrer, advan- tage may be taken not only of the particular faults specified, but of faults of substance as well. The reason is, that a special demurrer, both in form and in effect, is a general demurrer and something more — it objects in general terms, and then specifies particular faults. A special demurrer must point out with particularity the ground of objection. For example, a demurrer for duplicity, asserting merely that the pleading is double and informal, would be treated only as a general demurrer. A demurrer for such cause should point out specifically in what partic- ular the duplicity consists. And the same particularity is necessary in all demurrers for faults in mere form.^ To the rule that a general demurrer reaches only faults of substance, there is an exception as to dilatory pleas ; for as these are not favored in law, formal defects therein may be taken advantage of by general demurrer.^ 83. Demurrer Admits Facts Well Pleaded. — A de- murrer admits all such matters of fact as are well pleaded. The party having chosen to demur, rather than to plead, is regarded as admitting the truth of the facts alleged, and as questioning only their legal sufficiency ; which question, ^ Ames' Cases on PI. 14 ; Gould 2 Gould PI. ix. 16 ; Kipp v. Bell, PI. ix. 17, 18. 86 III. 577. 5 Gould PI. ix. 12. §84 HISTORY OF PLEADING. 7^ being a matter of law, is referred to the court. But this admission is limited, however, to such facts as are properly- pleaded. If the demurrer be general, it is said to admit all material facts, though they be informally pleaded.^ But a conclusion of law stated in the pleading demurred to is not so admitted ; nor is a statement contrary to the court's judi- cial knowledge so admitted ; nor an allegation which the pleader is estopped to make ; nor an averment of a thing impossible, or of facts that make a departure.^ 84. Effects of Pleading Over. — Some faults that render a pleading demurrable are aided — that is, remedied — by pleading over without demurrer. All formal defects are thus aided ; but insufficiency in matter of substance is not, as a rule, so aided. It has been shown that a demurrer ad- mits the truth of the facts pleaded, and questions only their legal sufficiency ; but it can not be said, e converso^ that a pleading which questions the truth of facts pleaded, admits their legal sufficiency. On the contrary, the legal sufficiency, in matter of substance, of any pleading is an open question throughout the case.^ It is a principle of procedure, that the court is bound, in legal contemplation, to examine the whole record before giving judgment in any case, and then to give judgment according to the legal right as it may appear from the whole record, regardless of any issues in law or in fact, or of any prior decisions thereof.* Therefore, even after issue in fact and verdict thereon, the unsuccessful party may take advantage of the legal insufficiency of his adversary's pleading, by motion for judgment non obstante veredicto, or, after judgment, by writ of error.^ Of course, if the pleading of one party is substantially bad in law, a verdict, which merely finds it true in fact, can not entitle that party to a judgment, which is merely the application of the law to an ascertained state of facts.^ Sometimes a defect in substance is aided by the pleading of the other party ; as, where the declaration omits a material fact, and the plea alleges such fact, the defect is thereby 1 Steph. PI. 221. " Steph. PI. 204, 205. 2 Gould PI. ix. 25-29. « Steph. PI. 186, 201, 224. 3 Ante, 35. « Steph. PI. 186 ; Ante, 8. 73 COMMON-LAW PROCEDURE. § 86 cured.^ And sometimes a fault in pleading is aided by ver- dict. Where the issue joined is such as necessarily to re- quire proof, on the trial, of facts defectively stated in, or omitted from, the pleadings, a verdict that could not be found without proof of such facts will cure the defect in the plead- ings. This rule of aider by verdict rests upon the logical ground that the verdict must be considered as true, and as founded on legal evidence, and therefore it must be presumed that every fact necessary to warrant such finding was proved on the trial ; and thus the verdict, by legal intendment, sometimes supplies facts omitted from the pleadings. But omitted facts not implied in, or inferrible from, those alleged and found, can not be presumed to have been proved. Thus, if a declaration in assumpsit fail to allege consideration, a verdict for the plaintiff will not cure the omission ; for the fact, alleged and proved, that the defendant promised, fur- nishes no legal inference that the promise was founded upon a consideration.'-^ 85. A Demurrer Searches the Record. — On demurrer to any pleading, the court will consider the whole record, and give judgment for the party who, upon the whole record, is entitled to it, disregarding merely formal faults. For ex- ample, on demurrer to a plea, if the plea be found bad, yet if the declaration be bad in substance, judgment should be for the defendant ; for, the defects in substance in the declaration not being aided by the plea, the plaintiff must ultimately fail, and suffer judgment against him. As it is sometimes said, " a bad plea is sufficient for a bad declaration." Again, if, on demurrer to the replication, the declaration be good, and both plea and replication bad in substance, judgment should be against the defendant, because the first substantial fault is on his part.^ This rule is but an application of the general principle before stated, that when judgment is to be given, at whatever stage of the case, it must be given upon consideration of the whole record. ' Gould PI. iii. 192. » Gould PI. ix. 3&^0 ; Steph. PI. 2Steph. PL 224; Gould PI. x. 222. § 86 HISTORY OF PLEADING. 74 This rule as to judgment on demurrer is subject, however, to some exceptions. If the plaintiff demur to a plea in abate- ment, and the plea be found bad, any defect in the declara- tion will be disregarded, and the judgment will be respon- deat ouster. And if, on the whole record, the right be found with the plaintiff, judgment will not be given for him, unless he has himself put his action on that ground. For example, in an action on a covenant to perform an award, and not to prevent the arbitrators from making an award, if the plaint- iff assign as a breach that the defendant would not pay the sum awarded, and the defendant plead that before the award he revoked, by deed, the authority of the arbitrators, such plea is good on demurrer ; for it is a good answer to the breach alleged. The matter stated in the plea would give the plaintiff a right of action, if he had alleged it ; but this can not avail him, for he has put his action on other ground. In examining the whole record, the court will disregard defects in matters of form, such as should have been the subject of special demurrer.^ The reason for such disregard of formal errors is, that form is intended only as a security for substance, and when a party, by answering a pleading, admits it to be good in substance, and admits that he under- stands it, he ought not thereafter to object to a want of form, that, as to him, was not essential for the purposes of justice.^ 86. Judgment on Demurrer. — Judgment is pronounced upon an admitted, or an ascertained, state of facts. The pleadings always terminate in issue joined upon a traverse, or in issue joined upon demurrer. In the one case, all the allegations, except that upon which the traverse is taken, stand iidmitted ; in the other case, all the pleadings stand ad- mitted — the last one by the demurrer, and each preceding one by that immediatel}^ following it. If issue joined upon a traverse be decided against the party traversing, the truth of all the facts alleged in the pleadings is established, and the ascertained state of facts is the same as the admitted state of facts would be, if the pleading traversed had been demurred to. For example, if a plea in confession and avoidance be ' Steph. PI. 223. 2 Evans PI. 38. 75 COMMON-LAW PROCEDURE. § 86 traversed, and issue thereon decided for the defendant, the verdict finds the plea true, and the plea having confessed the facts in the declaration, all the facts alleged on both sides are established. And if such plea be demurred to, all the facts well pleaded therein are admitted by the demurrer, and the admitted state of facts is then the same as the ascertained state of facts before supposed. But if in such case the issue in fact be found against the defendant, his plea is destroyed, and the case stands with the facts of the declaration established. When the facts of a case are established, either upon trial or upon demurrer, it is the duty of the court to give judg- ment for the party entitled thereto ; and this is determined by an inspection of the whole record, bearing in mind that the legal sufficiency of any pleading is not admitted by any subsequent pleading, or by any state of the pleadings.^ From what has been said it will be seen that when a party demurs, he in effect prays the judgment of the court upon the pleadings as they stand ; and the adverse party, by join- ing in demurrer, prays the like judgment. The judgment follows the nature of the pleading demurred to. Upon demurrer to a dilatory plea, judgment for the defendant is, that the writ or declaration be quashed, that the suit be dis- missed from that jurisdiction, or that it be stayed; if the judgment be for the plaintff, it is respondeat ouster — that the defendant answer over. In like manner, upon demurrer to any of the pleadings which go to the action, the judgment is final. If for the plaintiff, it is quod recuperet — that he recover ; if for the defendant, it is quod eat sine die — that he go hence without day. So that, judgment on demurrer to any pleading is the same that it would be upon an issue in fact, joined upon a traverse of the same pleading, and decided in favor of the same party .^ A judgment on demurrer, if upon the merits of the cause, is equally conclusive, as an adjudication of the right in con- troversy, as judgment for the same party, entered upon a ver- dict, would be.^ ' Lang. Eq. PI. 96 ; Ante, 35. » Gould PL ix. 4a a Steph. PI. 192 ; Gould PL ix. 41, 42. CHAPTER X. DIVISION OF ACTIONS. I. BEAL AND MIXED ACTIONS. 87. Classification of Actions. — The orderly parts of pleading having been explained, and the general form and manner of pleading having been shown, the several forms of action will now be defined and distinguished, and their scope and uses explained. The actions known to the common-law procedure are divided, according to their subject-matter, into actions real, personal, and mixed. Real actions are for specific recovery of lands, tenements, or hereditaments. Personal actions are for the recovery of specific chattels, or for pecuniary satisfaction for the breach of a contract, or an injury to person or property. Mixed actions partake of the natures of the other two divisions, and are for the recovery of real property, and for damages sus- tained in respect to such property.^ The real and mixed actions are, writ of right, formedon, writ of dower, quare irapedit, and ejectment. But this ancient division of actions is now of little importance, be- cause, by various statutes in England, most of the real and mixed actions have been abolished, and the procedure in those that remain has been much simplified. Personal actions are also divided, according to the nature of the wrong to be redressed, into actions ex contractu^ which are for the breach of a contract, and actions ex delicto, which are for wrongs not connected with contract. The actions in form ex contractu are, debt, covenant, assumpsit, and detinue ; those in form ex delicto are, trespass, trespass on the case, trover, and replevin .^ ' Steph. PI. 61 ; Heard PI. 14 ; 1 ' It is probable that this classifi- Chit. PL 97 ; 3 Bl. Com. 117. cation of actions led to the corre- 76 77 COMMON-LAW PROCEDURE. § 88 88. Actions Real and Mixed. — Writ of right is the remedy appropriate where one claims the specific recovery of corporeal hereditaments in fee-simple, founding his title on the right of property, or mere right, arising either from his own seizin, or the seizin of his ancestor or predecessor.^ Formedon is the proper action where, by an alienation of the tenant in tail the reversion or remainder is, by tlie failure of the particular estate,displaced and turned into a mere right.^ Writ of dower lies for a widow claiming the specific re- covery of her dower, no part thereof having yet been assigned to her. This is dower unde nihil habet. There is also a writ of right of dower, seldom used, which is to recover the residue of dower ; part of it having been already assigned by the tenant.^ Quare impedit is the form of action adopted to try a dis- puted title to an advowson. It lies to recover the presenta- tion, where the right to a benefice is obstructed.* In formedon, the general issue is ne dona pas, or noii dedit ; in quare impedit, it is ne disturha pas. In the other real actions there seems to be no fixed form of general issue. In very early times, there were in use two other remedies for the recovery of possession. These were : (1) a writ of entry, wherein the demandant maintained his right to possession by showing the unlawful commencement of the defendant's possession ; and (2) a writ of assize, wherein the demandant maintained his right by showing his own or his ancestor's possession. These possessory remedies, long since obsolete, decided nothing as to the right of property. Their only office was to restore the demandant to possession, when found spending classification of property, recovered ; in the other, the remedy- Under the old feudal system, things was against the person of the real were denominated " lands, wrong-doer. Hence the designa- tenements, and hereditaments ; " tions, real property, and personal while things personal were called property. Williams on Real Prop. " goods and chattels." But it be- 6. came obvious that the essential ' Steph. PI. 66. difference between lands and goods 2 3 bi_ Com. 191. was in the remedies for the depri- ' Steph. PI. 67. vation thereof. In the one case, * Steph. PL 68. the real thing — the land itself, was §§ 89-90 HISTORY OF PLEADING. Yg entitled thereto. Adversary claims as to the right of prop- erty could be determined only in the action known as " writ of right,'" or in some other action of that nature.^ 89. The Action of Ejectment. — This action lies for the recovery of possession of real property, and of damages for the unlawful detention thereof. The history of this action well illustrates the way in which fictions were resorted to in the adaptation of procedure to new requirements, without changing its external form ; and it shows the strong attach- ment to form, which characterizes the development of the common-law system of procedure. The action of ejectment was invented to enable a tenant for a term of years to recover possession of the demised lands. Originally, the interest of a tenant for years was not regarded as an estate, nor as a right which the courts would specific- ally restore to him when wrongfully dispossessed ; and his only remedy against a wrongful ejector was a personal action of trespass, to recover damages. In the course of time, how- ever, his interest in the land came to be regarded as a low kind of estate, and the courts determined that he was entitled not only to recover damages, but that, by way of collateral and additional reliaf, he should recover possession of the land itself for the term of which he had been ousted. The action of trespass in such case was accordingly so modified as to give the tenant this additional relief, and was thereafter known as the action of ejectment. This new action was de- signed solely for the relief of tenants for years, and it was applicable only where there was a real demise, an actual tenant, and a wrongful ejector who detained the possession ; it was free from fiction, and was limited to the relief of ten- ants for years. 90. Ejectment, Continued. — The old actions for the re- covery of lands were embarrassed by many technicalities and much cumbersome machinery. To obviate their defects, and to provide a remedy adapted to all cases, the courts conceived the idea of employing the action of ejectment as a substitute for these intricate modes of procedure. It was already per- > 3 BL Ckim. 180. 79 COMMON-LAW PROCEDURE. §91 ceived that when both the tenant for life and his lessor were wrongfully removed from the land, an action of eject- ment by the tenant restored, not only the tenant who brought the action, but his lessor as well ; because, the possession of the tenant being in law the possession of the lessoi-, the res- toration of the lessee to the actual possession was, ipso facto^ a restoration of the lessor to his former condition. This in- cidental result of ejectment suggested the idea of making a lease to serve as the foundation for extending the action to cases not already within its purview. Fiction was now resorted to. As none but tenants who had been ousted from a term of years could maintain the action, to enable one claiming the land in fee to avail himself of the action, a fictitious tenant, say John Doe, was named in the declaration as plaintiff, and was made to allege a lease to himself from the real person who claimed to own the lands iw fee, and wlio sought to establish his ownership by the action. Then as the action could be maintained only against one in possession, and as the adverse claimant of the fee might not be in possession, a fictitious ejector, say Richard Roe, called the casual ejector^ was named as defendant. The real adversary was notified, and was allowed to become de- fendant in the stead of the casual ejector, upon condition that he confess the alleged lease and the alleged ouster, both of which were mere fictions. This admission of the lease was construed as admitting its validity only as between the parties to it ; that is, it was an admission that the alleged lessor had made as good a lease as he could make if in pos- session. The question to be tried is, whether the plaintiff's lessor had title ; and this is tried between the real parties. In this way the action was completely transformed, and ejectment became the usual remedy for the trial of titles to real property. 91. Ejectment, Continued. — Ejectment will lie only for corporeal hereditaments, or things tangible, upon which an entry can be made, and of which the sheriff can deliver actual possession. To maintain the action, the plaintiff must have the legal title, whether in fee or for a less estate, and he must have a present right of entry. A mere equitable in- ^§ 92-83 HISTORY OF PLEADING. gO terest will not support the action. The plaintiff must recover on the strength of his own title, and not on the insufficiency of his adversary's title. The general issue in ejectment is, not guilty ; and this, bjr the terms of the consent rule, is the only issue that may be^ pleaded, unless leave be obtained to plead specially. The- declaration avers only that the plaintiff's lessor had demised to him a certain piece of land, for a certain time not yet ex- pired, and that the casual ejector ejected him therefrom. Strictly, the defendant's plea of not guilty would put in issue- only the ouster ; but the question really tried is, whether the plaintiff's lessor had right to possession. Judgment, if for the plaintiff, is, that he recover his term^ of and in the tenements, with damages and costs. A writ of execution, called habere facias possessionem^ issues upon such, judgment, to put the plaintiff in possession of the property.* 92. Action for Mesne Profits. — The action of ejectment, being brought by a nominal plaintiff against a nominal de- fendant, and for a supposed ouster, only nominal damages are, in general, given therein. For the injury sustained by the real plaintiff by being kept out of the mesne profits, the common law provided an action which is, in form, an action of trespass, but is, in effect, to recover the rents and profits of the estate. The right to sue in trespass for mesne profits is a consequence of a recovery in ejectment; and in such action the judgment in ejectment is conclusive evidence of plaint- iff's right to all profits accrued after the date of the ouster complained of in the ejectment suit.^ II. ACTIONS IN FORM EX CONTRACTU. 93. The Action of Debt. — This action is so called be- cause it lies for the recovery of a debt eo nomine et in numero. The gist of the action is the duty of the defendant to pay ; and not his promise to pay. It is a more extensive remedy for the recovery of money than either assumpsit or covenant ; for assumpsit will not lie upon a specialty, and 1 1 Chit. PI. 187 ; Steph. PI. 94, ^ 3 b1. Com. 205 ; 1 Chit. PI. 193 ; 119 ; Evans PI. 278-290. 2 Grlf. Ev. 332. 81 COMMON-LAW PROCEDURE. §03 covenant will not lie. upon a simple contract, whereas deLt will lie upon either. Debt will lie for money lent, for money had and received, for mone}^ due on an account stated, foi- work and labor, for the price of goods, for use and occupation, on notes and bills, on bonds conditioned for the pa3'meiit of money, on judg- ments, and on penal statutes, eitlier at the suit of the party aggrieved, or of a common informer. It is the proper remedy in general, where the demand is for a liquidated and certain sum, and is not for damages.^ Debt is of two forms : in the debet (lie owes), which is the common form; and in the detinet (he detains), which lies for the specific recovery of a certain quantity of goods, under a contract to deliver them. This latter form differs from the action of detinue, in that the plaintiff need not have a property in any specific goods at the time he brings his action. The "declaration in debt states the operative facts showing an indebtedness in a certain sum, that it is past due, and that it is unpaid ; but it does not, as in assumpsit, state a promise to pay. The action of debt being maintainable for a variety of de- mands, the pleas therein are correspondingly varied. In debt on simple contract, the general issue formerly was nil dehet^ — " that he does not owe the sum demanded, or any part thereof." This traverse, being in the present tense, and the declaration simply alleging an existing indebtedness, it was held that any evidence tending to show that there was no subsisting debt when the suit was commenced, was admis- sible ; and under this literal interpretation of the j^lea of nit debet, payment, the statute of limitations, and other defenses of new matter, were available to the defendant, without any notice thereof to the defendant. To remedy this evil, the plea of nil debet, in debt on simple contract, was abolished, and instead thereof the defendant was allowed to plead nun- quam indebitatus — " he never was indebted ; " or to plead in confession and avoidance.^ In debt on a specialty, the » 1 Chit. PL 1C8 ; Steph. Jl. 77. 2 1 chit. PI. 481. 518, 743 ; Mc- Kyring v. Bull, 16 N. Y. 297. 6 i< 94 HISTORY OF PLEADING. 82 general issue is non est factum — " it is not his deed." This plea operates as a denial of the execution of the deed in point of fact only ; and all facts showing that the deed is merely voidable must be specially pleaded.^ In debt on a record, the general issue is nul tiel record. This only puts in issue the existence of the record, and any matter in discharge must be specially pleaded. In debt upon a statute, nil debet is the proper plea, though not guilty has been held sufficient. Judgment in debt, if for the plaintiff, is, that he recover his debt and his costs ; if for the defendant, that he recover his costs. 94. The Action of Covenant. — The rules respecting this action are few and simple. It lies to recover damages for the breach of a contract under seal. In debt, the plaint- iff relies upon the nature and essence of the obligation ; in covenant, he relies upon its form. Where the action is for breach of an instrument under seal, and the sum demanded is fixed and certain, either covenant or debt will lie ; but if the sum demanded in such case is unliquidated, covenant is the only proper remedy. Debt is the only action with which covenant has any common ground. The declaration in covenant should set forth so much of the covenant as will show the primary right and duty, and that the contract is under seal, and should make profert there- of, or show an excuse for its omission. Profert in curia is usually in these words : " Which said writing obligatory, •sealed with the seal of the defendant, the plaintiff now brings here into courts The consideration need not, in general, be stated ; but if the performance thereof is a condition precedent, such performance must be averred.^ The declaration should assign a breach of the covenant by the defendant, and should lay damages. Tlie general issue in covenant is said to be non est factum — that the said supposed writing obligatory is not his deed. Strictly, this plea, in covenant as in debt on a spe- cialty, denies only the execution of the deed, and does not traverse the whole declaration. It directly denies the ' 1 Chit. PI. 484, 518, 743. « Gould PL iv. 13 ; 1 Chit. PL 120. 83 COMMON-LAW PROCEDURE. §95 covenant, and only indirectly denies the breach ; but it is the most general form of denial of which the action admits.^ All other defenses, including as well those which make the deed void as those which render it voidable, must be speci- ally pleaded.- Judgment in covenant, if for the plaintiff, is, that he re- cover an ascertained sum as his damages for the breach of the covenant, together with his costs ; if for the defendant, the judgment is for costs. 95. The Action of Assumpsit. — This action — so called because, when the pleadings were in Latin, the word assum- sit (he promised) was always used in the declaration to de- scribe the defendant's undertaking — is for the recovery of damages for the breach of a simple contract, whether it be written or unwritten, express or implied. In early times, the only remedy for breach of an unsealed contract was an action of debt. But in this action the de- fendant had the right to wage his law ; that is, if the defend- ant, after denying the indebtedness, would swear that he did not owe the plaintiff, and if eleven of his neighbors, called compurgators, would also swear that they believed the de- fendant had sworn truly, the plaintiff was forever barred. This was known as " trial by wager of law." ^ To avoid this embarrassing incident of the action of debt, the action of assumpsit was invented. The gist of this action was, and is» the defendant's promise ; it was the distinctive and indispen- sable averment of the declaration, for wantcif which, a demur- rer would be sustained, judgment arrested, or reversed on error. ^ The promise alleged in assumpsit was an express promise, and, for a long time after the invention of assumpsit, only an express promise Avould support the action ; so that, the averment of the declaration was, in this respect, in strict accord with the real transaction as shown by the evidence. In the course of time, there arose a class of recognized rights and obligations for which the forms of action then in ' 1 Chit. PI. 120 ; Gould PL vi. - 3 Bl. Com. 341 ; Evans PI. 305 ; 10, note 2 ; Granger v. Granger, 6 Pom. Rem. 512. Ohio, 35, 41. * 1 Chit. PI. 301 ; Pom. Rem. 513. 9 1 Chit. PI. 518. g96 HISTORY OF PLEADING. 84 use did not furnish a remedy ; and the courts, instead of in- venting a new action to meet this new demand, chose to extend the application of assumpsit. As usual, they resorted to fiction ; but instead of adapting the action, by introducing a fictitious element, they actually adapted the operative facts to be alleged, by adding thereto a false and fictitious feature. The fiction so invented was that of an implied promise to pay, in those cases wherein the law imposes an obligation to pay without express promise. The addition of this fictitious promise to the facts and circumstances to which, without any promise, the law attached the obligation, brought such cases formally within the scope and operation of assumpsit, whose distinctive requisite was the defendant's promise to pay. This was doubtless the origin of " implied contract," a term very inaptly used to designate an obligation that arises ex lege^ and not ex contractu} 96. Assumpsit, Continued. — The action of assumpsit, thus enlarged by the fiction of an implied promise, and mod- ified by the introduction of the common counts, became a remedy of extensive application. It lies to recover money lent, or paid for the defendant at his request, or had and received by him to the use of the plaintiff. It is the proper remedy for work done, or for services rendered, for goods sold and delivered, for an account stated, for breach of prom- ise to marry, to recover for the sale or hire of personal prop- erty. It is the proper action on bills of exchange, checks, promissor}'- notes' policies of insurance, guaranties, and war- ranties. In some cases, where tlie defendant has, by his tor- tious act, received tlie plaintiff's money or propert3% the plaintiff may waive the tort, and sue in assumpsit.^ AVhen the action is upon an express contract, it is called sj^ecial assumpsit ; when upon an implied promise, it is called general assumpsit. The declaration in assumpsit states the promise of the de- fendant, the consideration, — except when the action is on a negotiable instrument, — and the breach thereof. A promise ' Mete, on Cont. 5, 203, 204 ; » 1 Chit. PI. 99 ; Heard PI. 25 ; Pom. Rem. 512. Steph. PI. 85. 35 COMMON-LAW PROCEDURE. §97 must always be alleged, wlietlier there be in fact an express promise, or only cirucinstaiices from wliicli the law will create a liability.^ There is, in common-law pleading, no such thing as an implied promise. Such character of alleged promise will appear only in tlie evidence ; and proof of circumstances giving rise to an implied promise will support the allegation of an express promise.^ The general issue in this action is non assumsit — he did not promise. The form of this plea is, that the defendant "did not undertake or promise, in manner and form as the plaintiff hath complained." This denies, in terms, onlj' tlie promise. Formerly, a defendant was allowed, under this plea, not only to maintain his denial of a promise, but to prove affirmative facts, in discharge or in excuse.^ But more recentl}^ this plea has been allowed to operate only as a denial in fact of the express contract alleged, or of the circumstances from which the promise alleged may be implied by law ; * and all matters in discliarge or in excuse must be specially pleaded.^ Judgment in assumpsit, if for plaintiff, is, that he recover a specified sum as damages, and his costs ; if for defendant, it is tliat he recover costs. 97. T]ie Common Counts. — There are certain modifica- tions of tlie action of assumpsit, known as the " common counts." These are, the indebitatus assumsit, the quan- tum meruit, the quantum valebant, and the insimul com- putasset. A shorter and more general form of statement obtains in these than in most other actions. They were brought into use, and at first used in connection with special counts, to prevent the defeat of a just claim by an accidental variance between the allegations in the special count and the evidence on the trial. But in recent times, the joinder of the common counts with a special count on the same right of action is generally prohibited. ' Steph. PI. 85, 86, note 1 ; Gould 2 Gould PL iii. 19. PI. iii. 10; Bliss PI. 152, 154 ; Mc- » 1 Chit. PI. 476. Kelvey's Com. Law PI. 40^3. Cf. * 1 Chit. PI. 513, 742, Mass. Mut, Life Ins. Co. v. Kellogg, ' 1 Chit. PI. 516 ; Seldon, J., in 82 111. 614. McKyriug v. Bull, 16 N. Y. 297. § 98 HISTORY OF PLEADING. 86 Indehitatus assumpsit is that species of action in which the plaintiff first alleges an indebtedness in a named sum, stating briefly the subject-matter of the debt, and then alleges that in consideration thereof the defendant, being so indebted, promised to pay the plaintiff. This species of action lies for work done, for materials furnished, for goods sold and de- livered, for use and occupation, etc. The general issue in this form of assumpsit puts in issue all the facts essential to establish the indebtedness alleged.^ Assumpsit on a quantum meruit lies for work done at the request of another. It differs from indebitatus assumpsit in this, that instead of alleging a promise to pay a certain sum specified, the plaintiff alleges first, the doing of the work, and then a promise to pay as much as he reasonably deserved, aud that for the work he reasonably deserves to have a speci- fied sum. Where there is an express contract for a stipulated amount to be paid for services, the plaintiff can not abandon the contract and resort to this action on an implied as- sumpsit.2 98. The Common Counts, Continued. — The form of ac- tion called assumpsit on a quantum valebant lies for goods sold without specifying any price. In such case, the law implies a promise to pay as much as the goods are worth ; and in this form of action the plaintiff alleges the promise of the defendant to pay as much as the goods were reasonably worth, and then alleges that they were worth a named sum. Insimul computasset is the assumpsit on an account stated. An account stated is the settlement of an account between parties, whereby a balance is ascertained in favor of one of them. In assumpsit on an account stated, the plaint- iff alleges that the defendant accounted with him, and was then found to be in arrears to plaintiff a named sum, which he then promised to pay. In all these counts the implied promise is averred as an ex- press promise. For example, in indebitatus assumpsit for goods sold and delivered, the averment of a promise is as 1 Steph. PI. 339, note f. ; 1 Chit. « 1 Chit. PI. 341 ; 2 Bouv. Die, PI. 513, 517, 743. voce " Quantum Meruit." 87 COMMON-LAW PROCEDQRE. ^09 follows : " That the defendant, on the day of , was indebted to the plaintiff in dollars, for goods then sold and delivered by plaintiff to defendant at his special in- stance and request ; and being so indebted, the defendant, in consideration thereof, then promised to pay the said sum of money to the plaintiff, upon request." ^ The common counts are also sometimes used in the action of debt; omitting, of course, the allegation of a promise. Thus, for goods sold, an indebitatus count in debt would allege that on a certain day the defendant was indebted to plaintiff in a certain sum, for divers goods, wares, and mer- chandise, by the plaintiff before that time sold and delivered to the defendant at his special instance and request, to be paid when requested ; and that, although often requested, he has not paid the same, or any part thereof, to the damage of plaintiff dollars.^ ,' 99. The Action of Detinue. — This action lies for the specific recovery of goods and chattels, or deeds and writings, wrongfully detained. It is the only action for recovery of personal chattels in specie, except replevin, which gives specific recovery of goods taken. To support this action, three conditions are requisite. (1) The goods sought to be recovered must be distinguishable from all others, so that if the plaintiff obtain judgment, the sheriff may be able to de- liver the particular goods to him. (2) The plaintiff must have a right to immediate possession of the property. A re- versioner can not, therefore, maintain the action ; though a bailee, having only a special property, may maintain it. (3) The defendant must have the actual possession, and must have acquired it by lawful means, — as, by delivery, bailment, or finding, — and not tortiously. Detinue is peculiar in. its nature, and not clearly referable to either class of actions. The right to join detinue with debt, and to sue in detinue for goods detained by a bailee, together with the history of the action, showing that it was originally an action of debt in the detinet, would seem to place it with actions ex contractu. On the other hand, as > 2 Chit. PI. 37, 55 ; Steph. PL 120. « 2 Chit. PL 385 ; Steph. PL 115. g 100 HISTORY OF PLEADING. -.,^ detinue lies for wrongful detention, without reference to any contract ; and as the wrongful detainer is the gist of the action, some writers, regarding it as founded on tort, have classed it with actions ex delicto.^ The « general issue in this action is non detinet, and is in form as follows : " And tlie said defendant says, that he does not detain the said goods and chattels in the said dec- laration specified, or any part thereof, in manner and form as the said plaintiff hath above complained. And of this the said defendant puts himself upon the country." The plea of non detinet denies only the alleged detention ; if the de- fendant wishes to deny the plaintiff's property in the goods, or if he relies upon a justifiable detainer, he must plead specially. The judgment in detinue, if for the plaintiff, is always in the alternative — that he recover the goods, or the value there- of if he can not have the goods, with damages for the deten- tion, and his costs.'*^ III. ACTIONS IN FORM EX DELICTO. 100. The Action of Trespass. — Civil injuries not con- nected with contract are of two kinds : the one, direct, and coupled with force and violence ; as, assault and battery, false imprisonment ; the other, consequential, and without force and violence ; as, slander, malicious prosecution. The term trespass, in its technical signification, means an injury committed with force, or as it is generally stated, vi et armis. The action of trespass lies only for injuries committed with force, and generally for only such as are immediate, and not consequential.^ Force is either actual or implied. If one unlawfully and with force break down the gate and enter the close of another, the force is actual, and the act is a trespass. If one unlaw- fully, but peaceably, enter the close of another, force is im- plied, for there is a breaking of the ideal inclosure which encircles every man's possessions, when he is owner of the > 1 Chit. PL 98, note, 121, note. ^ j chit. PI. 127, 166. 9 1 Chit. PI. 125. 89 COMMON-LAW PROCEDURE. g 101 surface. In either case, the injury ensuing is remediable by ah action of trespass quare clausum f regit. Trespass is the jiroper remedy for assault and batter}^ for false imprisonment, and for beating, wounding, or imprison- ing a wife or servant, whereby the husband or master sustains loss of service. It lies for criminal conversation, and for debauching a daughter ; force being implied in these cases. It is the proper remedy for injuries to personal property, com- mitted by unlawfully striking, chasing — if alive, or carrying away, a j^ersonal chattel of which another is the general or qualified owner and is in possession, actual or constructive ; but a naked possession, or right to immediate possession, is a sufficient title to support the action. Trespass is also the proper remedy for the several acts of breaking and entering the close of another, and causing damage thereto. The thing injured must be something tangible and fixed, such as land, a house, or other building. It is not necessary that the close be fenced from the property of others, the term " close " being technical, and signifying the interest in the land, and not merely an inclosure. There must be some injury to authorize a recovery ; but the slight- est injury, as treading down the grass, is sufficient.^ 101. Trespass, Continued. — The gist of this form of the action (for breaking and entering) is the injury to the posses- sion ; and the general rule is, that unless the plaintiff was in actual possession at the time the injury was committed, he can not support trespass. Therefore, a landlord can not, during a subsisting lease, support trespass for an injury to the land, but the action must be in the name of the tenant in possession.^ There is a material distinction in this action between personal and real property. As to the former, the general property draws it to the possession so as to enable the owner to maintain trespass, although he never had actual possession ; but as to the latter, there is no such constructive ' In some of the states it is pro- ion an action of trespass will not vided by statute that trespass, in- determine a dispute as to title, even stead of ejectment, may be main- though the issue in the case be as tained to try title to real estate, to title. 6 Wait's Ac. and Def. 90, But without such statutory provis- ^ 1 Chit. PI. 175. § 102 HISTORY OF PLEADING. 90 possession, and unless the plaintiff had the actual possession, by himself or his servant, when the injury was committed, he can not support this action.^ 102. Trespass, Continued. — The declaration in this ac- tion states the injury to the person, or to the property, and alleges that it was committed vi et armis and contra pacem. For example, in trespass for assault and battery, the allega- tions are, " that the defendant, on the day of , with foi'ce and arms, made an assault upon the plaintiff, and beat, wounded, and ill-treated him, so that his life was de- spaired of, and other wrongs to the plaintiff did, against the peace of our said lord, the king, and to the damage of plaintiff pounds.'' And in trespass quare clausum 'I'vegit., the allegations are, " that the defendant, on etc., with force and arms, broke and entered the close of plaintiff, that is to say, (describing the close), and with his feet, in walking, trod down, trampled upon, consumed and spoiled the grass and herbage of the said plaintiff then and there growing, and other wrongs to the plaintiff then and there did, against the peace " etc. The general issue in trespass is non culpahilis — not guilty, and is in the form following : " And the said defendant says that he is not guilty of the said supposed trespasses above laid to his charge, or any part thereof, in manner and form as the said plaintiff hath above complained. And of this the ' 1 Chit. PL 176. The plaintiff's supposes that no man wiU tamely possession is inseparable from that permit a direct interference in his character of the injury which concerns, and therefore tliat no makes it redressible by this action, man will attempt sucli direct inter- and which is expressed by the dis- ference, unless he is prepared with tinguishing phrase, "viet armis." a force to support his intrusion. Mr. Evans, in distinguishing tres- This interference, it will be seen, pass from ca.se, says: "The real arises out of the notion that the distinction is in the thing signified plaintiff will resent the attack upon by this phrase. The thing signified himself or his property. We are, is a technical or imaginary force, therefore, to look at the condition inferred by the law from every di- of the plaintiff, not of the defend- rect unlawful intermeddling with ant, to ascertain ivhether the law the person or property of another, will impute force to the defendant ^ The distinction is in the intermed- Evans PI. 67. dling being direct ; for the law 91 COMMON-LAW PROCEDURE. § 103 said defendant puts himself upon the country." This plea is only a denial of tlie trespass alleged. In trespass quare clausum fregit^ it does not deny the plaintiff's possession or right of possession. In trespass de bonis asportatis, it does not deny the plaintiff's property in the goods. To put these matters in issue, they must be traversed specially ; and any matter in excuse or justification must be specially pleaded.^ In trespass to the person, the defendant may jus- tify under the plea of son assault demesne — that .the plaint- iff made the first assault ; or under the plea of moliter manus imposuit — that to preserve the peace, he gently laid his hands upon the plaintiff. Judgment for plaintiff in trespass is for damages and costs. The effect of such judgment for the value of personal property tortiously taken is, to transfer the title thereto to the defendant.^ 103. Trespass on the Case. — This action, sometimes called an " action on the case," and sometimes only " case," was invented to furnish redress for numerous wrongs not remediable by the established forms of action at that time in use. When all civil actions in the Superior Courts of com- mon law were required to be commenced by original writ, these original writs differed from one another in form and tenor, each form of writ corresponding to the form of action to which it was exclusively appropriate, and to which it had probably given name. These established forms of writs were collected into a book, called Registrum Brevhan, or Regis- ter of Writs ; and the remedies afforded were limited to cases to which some one of these writs and its corresponding form of action were applicable. In the progress of society, cases of injury arose that were novel in their circumstances, and that were not within the scope of any of the actions then in use, though they came within the recognized principles of the substantive law. To supply this deficiency, the clerks of chancery were empowered, by act of parliament, grounded upon the maxim ubi jus, ibi remedium,^ to frame new writs 1 1 Chit. PI. 520, 744 ; Steph, PI. ' Acheson v. MiUer, 2 O. S. 203. 235. 3 Br. Max. 192. K gl04 HISTORY OF PLE;:* DING. 92 in consimili casu with those ah-eady known. Under this power they constructed many writs for different injuries sup- posed to bear analogy to trespass ; and from this supposed analogy, and from the fact that these new writs were founded upon the peculiar circumstances of the particular case, they were distinguished from the old writs of trespass, by the ap- pellation of " writs of trespass on the case." These new writs, though invented pro re nata and in various forms, differing according to the natures of the particular cases that called them forth, came to be regarded as constituting col- lectively a new and distinct form of action, to which was given the generic name of " trespass on the case." ^ 104. Trespass on the Case, Continued. — This action lies generally to recover damages for torts committed without force, actual or implied ; or, if occasioned by force, where the matter affected is not tangible, or the injury is only conse- quential ; or where the interest in the property injured is only in reversion. It is the proper remedy for a landlord, where the injury affects his reversionary interest ;2 for put- ting a spout so near the plaintiff's land as to run the water upon it ; ^ for obstructing a private w^j ; for special damages arising from a public nuisance ; and for damage resulting from want of skill or care on the part of a surgeon, or from neglect or misfeasance of an attorney ; though in such action against a surgeon or an attorney it is said that assumpsit will lie.* Case will lie for criminal conversation, and for de- baunching a daughter ; though it is the better practice, and the more usual, to declare in trespass. It lies for libel, for slander, for malicious prosecution, for disturbing one in the enjoyment of an easement, or of a franchise.^ 1 Steph. PI. 64, 83. The action of writ of trespass on the case, accord- assumpsit,in form eareo/ifracfu, and ing to its primitive institution by the action of trover, in form ex King Edward tlie First, to almost delicto, are said to have originated every instance of injustice not rem- as species of this new genus. 1 Chit, edied by any other process." 4 Bl. PI. i;;2 ; Steph. PI. 85. Blackstone Com. ^2. thought that one of the most im- 2 \ chit. PI. 175. portant amendments of the law ' Wood on Nuisances, 101. was that of " extending the re- * 1 Chit. PI. 134. medial influence of the equitable ^ 1 Chit. PI. 134, 142. 93 COMMON-LAW PROCEDURE. §105 If a log be wrongfully thrown npon a man's foot, witli however little violence, the remedy would be trespass, foj- the injury would be tlie immediate result of actual force ; but if a log be wrongfully thrown into the highway, with whatever violence, and a man fall over it, the remedy would be case, for the injury would be consequential.^ In some cases, though the injury be forcible and immediate, the plaintiff may waive the trespass, and sue in case or in trover.^ The general issue in trespass on the case is not guilty. Formerly this plea admitted proof of facts in justification, in excuse, or in discharge ; but more recently, it is made to op- erate only as a denial of the breach of duty, or wrongful act alleged to have been committed by the defendant. Judg- ment for plaintiff is for damages and costs. 105. The Action of Trover. — The word trover means to find. The action of trover, or "trover and conversion,'' as it is sometimes called, was originally a species of trespass on the case for the recover}'' of damages against one who had found another's goods, and who refused to deliver them on demand to the owner, but converted them to his own use. But at length the finding came to be treated as a mere fiction of law, and the action was permitted to be brought against any one who, having possession, by any means, of the per- sonal property of another, sold or used the same without the consent of the owner, or refused to deliver it when demanded. In form, this action is a fiction ; in substance, it is to recover the value of personal property wrongfully converted. Tlie gist of the action is the conversion ; this is the tort, or male- ficium. While the form of the action supposes the defendant may have come lawfully into possession, it is immaterial whether in fact he acquired the possession rightfully or wrongfully, for the wrong is predicated of the conversion, and not of the takingf.^ Three things are requisite for the support of this action. (1) The proj)erty affected must be a personal chattel, and the plaintiff's right must be to some identical or specific 1 1 Cliit. PL 126. » 1 Chit. PI. 146. « 1 Chit. PI. 139. § 106 HISTORY OF PLEADING. 94 goods. (2) The plaintiff must, at the time of the conversion, have had a property, general or special, in the chattel ; and he must have either actual possession, or the right to im- mediate possession. (3) There must have been a conver- sion of the property. The tortious asportation of property is, of itself, a conversion ; but when the original taking was law- ful, and there has not been an actual conversion, there must be a demand of the property and a wrongful refusal to deliver, before the conversion is complete.^ For a wrongful taking of goods, trover is, in general, a concurrent remedy with trespass ; but where the taking is lawful or excusable, trover alone will lie. The declaration in this action states that the plaintiff was possessed, as of his own property, of certain goods and chat- tels, describing them ; that he casually lost them out of his possession ; that they came to the possession of the defend- ant by finding ; that he, well knowing the said goods and chattels to be the property of plaintiff, and contriving and fraudulently intending to defraud plaintiff, converted them to his own use. The general issue is not guilty^ which denies only the con- "version, and not the plaintiff's title. The measure of tlie re- covery in trover is in general the value of the goods when converted, with interest ; and judgment for the value of prop- erty converted, in trover, as for property carried away, in trespass, transfers the title to the property to the defendant ; ^ though in some jurisdictions it is held that title does not pass until satisfaction of the judgment. 105. The Action of Replevin. — This is an action for specific recovery of personal property unlawfully taken and detained from one rightfully in possession thereof. It is jDrobable that this action was originally limited to one in- stance of unlawful taking — that of wrongful distress, either of cattle damage feasant, or of chattels for rent in arrear.^ However this may be, it was early extended to all cases of a tortious taking. ' 1 Chit. PL 146-154 ; Mayne on Miller, 3 O. S. 203 ; 2 Kent Com. Dam. 497, n. 387 ; 6 Wait's Ac. and Def, 224. " 1 Chit PI. 161 , n. 2 ; Acheson v. =* 3 Bl. Com, 145 ; 1 Chit. PL 164» 95 COMMON-LAW PROCEDURE. § 107 To support replevin, the property affected must be a per- sonal chattel ; the plaintiff must, at the time of the taking, have had the right of immediate possession, either as the general owner, or as owner of a special property therein ; and the property must be susceptible of identification and of distinguishment from other like property .^ Replevin is, in form, an action for damages for the unlawful taking and de taining of the goods ; and while a judgment for damages is the only relief prayed for, the real object of the action is the recovery of the specific property.'-^ This remedy, at common law, is called replevin in the cepit., because it lies only where there has been a tortious taking ; bat where, as in the United States generally, the remedy has been enlarged by statute so as to make it apply to cases where only the detention is wrongful, it is called replevin in the detinet. Replevin is not commenced in any of the Superior Courts of common law, though sometimes removed to them from an inferior jurisdic- tion. 107. Replevin, Continued. — The declaration in replevin alleges the taking of plaintiff's property by the defendant, at a certain place named, and his detention of it, to the damage of plaintiff. The general issue in replevin in the cep'it is non cepit — "that he did not take the property, or any of it, in manner and form as above complained." This plea admits the plaintiff's property and his riglit of possession, and puts in issue only the taking and the place of taking as alleged.^ If the action is in the detinet, the defendant may plead non detinet, which denies only the detention ; though it is some- times given a wider operation. Tlie defendant may justify the taking, by way of avowry, which is an assertion of rightr f ul taking, as for arrears of rent, damage feasant, or the like \ or by way of recognizance, which is the assertion of taking by the command of another, who had a right to restrain. These counter allegations in replevin, and whicli are analo- gous to pleas in bar by way of confession and avoidance, » 3 Bl. Com. 145 ; 1 Chit. PL 162. => 1 Chit. PI. 499. * Steph. PI. 92. § 108 HISTORY OF PLEADING. 96 place the defendant in the attitude of a plaintiff, and both parties are said to be actors.^ Judgment for the plaintiff in replevin is for damages for the taking and detention only, or for tlie value of the prop- erty in addition thereto. If, upon the writ issued, the sheriff has found the property and delivered it to the plaintiff, the declaration is then in the detinuit,—t\va,t is, the plaintiff de- clares that the defendant took the property and detained it until replevied by the sheriff ; and the judgment is for the taking and detention only. But if the sheriff has not found the property, and has so returned his writ, the declaration is in the detinet, — that is, it alleges that the defendant took the goods and still detains them ; and the judgment is for the detention and for the value of the goods. If the goods have been delivered to the plaintiff, and judgment is for the defendant, it is for costs, and for a return of the goods — pro retorno habendo. If the goods remain in the defendant's possession, his judgment is only for costs.^ IV. A GENERAL VIEW OF PERSONAL ACTIONS. 108. CoTenant and Debt the Earliest Forms. — In very early times comparatively few obligations were enforced by the courts. The majority of the people were ignorant of the :artof writing, and their written contracts could be authenti- cated only by their seals, which were generally impressions made upon wax. In judicial proceedings, it was regarded as unsafe to trust to the memories of illiterate persons for the particulars of contracts, with the single exception of a con- tract for the payment of a liquidated and certain sum of money. With such contract it was thought the memory of a witness might be trusted, provided the claimant was able to show a consideration for the debt. For these reasons, contracts under seal, and those for the payment of a sum certain, were the only contracts which the law enforced ; and it is therefore probable that the actions of debt and of cove- nant — the one based upon the essential nature of the obliga- 1 1 Add. on Torts, 765 ; Steph. PL "^ 1 Chit. PI. 165 ; 5 Wait's Ac. (Troubat's Ed.) 2d App., note 2. and Def. 456. 97 COMMON-LAW PROCEDURE. §§109-110 tion, and the other having regard only to the form of the obligation — covered, originally, all the breaches of contracts remediable by law.^ Covenant is still limited to the enforcement of contracts under seal. It occupies no ground in common with any other form of action, except the action of debt. Where one has bound himself by an obligation under seal to pay to another a liquidated sum of money, the obligee may elect between debt and covenant to enforce payment.^ Debt, how- ever, occupies very little exclusive ground. When an obli- gation to pay a sum certain is evidenced by an instrument under seal, this action is, as has been stated, concurrent with covenant ; when evidenced by writing not under seal, or when not evidenced by writing, it is generally concurrent with assumpsit. So that the action of debt is almost always an elective remedy. ^ 109. Assumpsit, Delbt, Covenant. — Assumpsit and cove- nant are each the precise counterpart of the other. Each lies for a breach of contract, but the one lies always upon a breach of contract iiot under seal, and never upon a contract under seal ; while the otlier lies always upon a contract under seal, and never upon one not under seal. They have no ground in common, and in no case can there be an election between them.^ But each of these actions occupies common ground with debt. On a contract under seal, if to pay a sum certain, debt or covenant will lie ; if to do something other than to pay a sum certain, only covenant will lie. On a con- tract not under seal, if to pay a sum certain, debt or assumpsit will lie ; if to do something other than to pay a sum certain, assumpsit and not debt — unless in the detinet — will lie. 110. Trespass, Trover, Detinue. — Where there has been an unlawful taking of the personal property of one in actual possession, or having the right to immediate possession, the injured party has, in general, a choice of remedies, and may sue in trespas.^ or in trover. In such case the wrongful tak- ing and cari-ying away is a trespass, for which an action of ' Evans PI. 72. 3 Evans PI. 74. « Evans PI. 72. * Evans PI. 77. 7 §g 111-112 HISTORY OF PLEADING. 98 trespass vi et armis de bonis asportatis will lie ; and sucli tortious asportation is, of itself, a conversion of the prop- erty, for which trover will lie.^ But while trover andy trespass are, in general, concurrent remedies for a wrongful taking of goods, they are not concurrent remedies where the taking is lawful or excusable. In such case, trespass can not be supported, because the tortious act complained of is not committed with force, actual or implied.^ If the goods so taken are in the actual possession of the defendant, and are dis- tinguishable from all others, the plaintiff may bring detinue, for tlie specific recovery of the goods detained ; if the goods have been converted, he may bring trover for their value.^ y^ 111. Election Between Tort and Contract. — Where per- lonal property has been tortiously converted, the owner may due in an action ex delicto^ or he may waive the tort, and sue in assumpsit. The right to do this rests upon two grounds. One ground is the fiction of an implied promise on the part of the wrong-doer to pay for the property so converted. The other ground is in the nature of estoppel. The defendant will not be allowed to deny the promise alleged, by asserting his own wrong. If the wrong-doer has sold or disposed of the property, he may be sued in assumpsit as for money had and received ; if he remains in possession of it, he may be sued as for goods sold and delivered.* 112. Consequences of Mistake in the Form of Action. — The courts have been careful to preserve the boundaries of the different actions ; and the consequences of adopting a form of action not applicable to the particular case are always prej- udicial, and sometimes irremediable. If the objection appear upon the face of the declaration, advantage may be taken of it by demurrer, by motion in arrest of judgment, or by writ of «rror. If the objection may be made to appear onlj'- by proof of extrinsic facts, advantage may be taken of it upon the trial, by nonsuit for the variance. I ' 1 Chit. PI. 146, 153, 161, 171. Bliss PI. 154 ; Pom. Rem. 568 : « 1 Chit. PI. 161. Steph. PI. 53-55 ; Terry v. Hunger, 3 1 Chit. PI. 172. 121 N. Y. 162. ^1 Wait's Ac. and Def. 405; 99 COMMON-LAW PROCEDURE. §113 If by either of these means the plaintiff fail in his action, and judgment be given against him for that reason, and not upon the merits, he may bring a new action, and the judg- ment in the ineffectual suit will not be a bar to the second action. But if in such mistaken action the defendant plead, and the plaintiff take issue, and a verdict be found for the defendant upon the merits, the plaintiff will be estopped from bringing a new action, provided such verdict be especi- ally pleaded as an estoppel.^ V. ADDITIONAL REMEDIAL FORMS. 113. Extraordinary Remedies. — In addition to the several remedial instruments of justice denominated " forms of action," there are at common law certain proceedings whereby the extraordinary powers of the government are called to the aid of a party. Among these are, habeas corpus mandamus, quo warranto, and prohibition. The writ of habeas corpus is an order issued by a court or judge, directed to a person having another in custody, and commanding him to produce such person, at a time and place named, and then and there to show the cause for his caption and detention, and to receive and do whatsoever such court or judge shall then and there consider and order in that behalf. This writ is usually prosecuted by a person claiming to be unlawfully restrained of his liberty ; and upon a hear- ing he is to be discharged, admitted to bail, or remanded. In some jurisdictions this writ may be issued at the instance of one claiming to be entitled to the custody of another, of which custody he is unlawfully deprived. The writ of mandamus is a command issuing in the name of the sovereign, from a court of law, directed to some officer, corporation, or inferior tribunal, requiring the performance of a particular duty specified in the writ, and arising from an office, trust, or station, or from operation of law. It was originally a high prerogative writ, but in this country it is regarded much in the nature of an action by the person on whose relation it is granted for the enforcement of a riolit in ' 1 Chit. PI. 197. ,^li4 HISTORY OF PLEADING. IQO exti'aordinarj cases wherein there is no adequate remedy by the ordinary modes of procedure. The writ of quo warranto was a high prerogative writ, is- sued in the name of the government, against one who usurped any office or franchise, requiring him to appear before the court issuing the writ, and to show by what warrant he claimed the office or francliise. This ancient writ has been superseded by the more modern remedy of an information in the nature of a quo warranto^ which, w^hile in some of its forms and incidents it partakes of the nature of a criminal proceeding, is, in substance, a strictly civil proceeding, to try the title to an office or franchise, and to oust one wiongfully in possession thereof. The writ of prohibition is an extraordinary judicial writ issued by a superior court, and directed to an inferior court, commanding it to cease from the exercise of jurisdiction in a specified suit. Its object is to restrain a subordinate judicial tribunal from usurping a jurisdiction with which it is not le- gally vested, and to save a party from the annoyance of being required to answer in a proceeding that is coram non judice. It is the opposite of mandamus ; and it differs from injunc- tion in equity to restrain proceedings at law, in that the latter affects only the parties, while the former is directed against the forum itself. 114. The Writ of Scire Facias. — The proceeding by writ of scire facias is sometimes spoken of as an action. It is a judicial writ founded upon some record, and addressed to the sheriff, commanding him to make known to the defendant that he is required to appear and show cause why the plaintiff should not, as against him, have the advantage of some obli- gation of record that does not furnish ground for an immedi- ate execution against him. It is the proper proceeding for the revivor of a dormant judgment ; or to make an obligor not served in the original suit, a party defendant to the judg- ment therein; and, in some cases, to enforce the liability of bail on a recognizance.^ » 3 Bl. Com. 416, 431 ; Bank v. Hart, 19 Ohio, 372. CHAPTER XI. THE PRINCIPAL RULES OF PLEADING.' 115. Origin and Object of Rules. — The immediate ob- ject of the judicial altercation is, to ascertain the subject for decision ; and under the common-law procedure, this is done by the production of an issue. To facilitate as Avell the pro- duction of an issue as its decision thereafter, parties are re- quired to construct their opposing statements according to certain logical and legal principles, in order that the state- ments may be intelligible, certain, consistent, and truthful ; that the issue evolved may be real, material, and definite ; and that its decision may be conclusive of the controversy. For the promotion of these objects, there grew up in the common- law procedure certain rules of pleading^ which, while they furnished practical guidance to tlie pleader, gave to the sys- tem that logical coherence and scientific character which distinguish it. These rules, most of which are equally applicable to pleading under the reformed procedure, will here be stated, with such comment as will make clear their meanings and uses. I. RULES FOR THE PRODUCTION OF AN ISSUE. 116. After the Declaration, the Parties Must Alter- nately Demur or Plead. — This rule requires the defendant either to demur to the declaration, or to plead thereto. If he demurs, he tenders an issue in law ; and if he pleads by ' Tlie arrangement used by Mr. given in this historical outline, the Steplien, though not the most logi- reader is referred to the same topics cal, is convenient, and is substan- in the works of Stephen, Gould, tially followed in this chapter. For Chitty, and Evans. more detailed treatment than is 101 §117 HISTORY OF PLEADING. 102 way of traverse, he tenders an issue in fact. If he pleads by way of confession and avoidance, he of course does not ten- der issue ; but, under this rule, the plaintiff must then either demur to the plea, or reply thereto ; and so on, until issue is tendered. If a party, required by this rule to demur or to plead, does neither, his adversary may have judgment by nil dicit. The nature, the kinds, and the effects of demurrer have already been fully explained.^ So, also, have the pleadings subsequent to the declaration, both by way of traverse and by way of confession and avoidance, been fully considered.^ Two rules, however, should here be noticed. The first is, that every pleading should answer the whole of what is ad- versely alleged ; and the second, that every pleading is taken to confess all such traversable matters alleged on the other side as it does not traverse. This latter rule gave rise to the practice of protestation, whereby a party saves himself from being concluded by his failure to traverse some matter alleged against him. When a party is not at liberty to traverse the whole of his adver- sary's pleading, he may preserve the right to traverse, in an- other action, the matter passed over, by simply protesting that it is untrue. By protestation the pleader denies a fact, without putting it in issue. Such denial has no effect in the principal case, for so far as that case is concerned, the fact protested against is taken as admitted. 117. Upon a Traverse, Issue Must be Tendered. — It has been shown that tender of issue is a necessary incident to all forms of traverse, except the special traverse.^ The reason is, that as the matter in dispute sufficiently appears by the - traverse, there is nothing to be accomplished by further altercation. The formulae for tendering an issue in fact vary according to the mode of trial. The tender of an issue to be tried by jur}^ is by a formula called the " conclu- sion to the country ; " which, if by the plaintiff, is, " And this the said A. B. prays may be inquired of by the country ; " ' Ante, 79 et seq. ^ Ante, 66. * Ante, 58 et seq. 103 COMMON-LAW PROCEDUEE. §§118-119 and if by the defendant, it is, " And of this the said C. D. puts himself upon the country." ^ When the fact traversed is matter of record, issue is not tendered by conclusion to the country, for the reason that a record is of a nature so high, and imports such verity, that it should be tried only by an inspection of the record itself. Hence, when a matter of record is pleaded, and the opposite party pleads nul tiel record^ he must tender issue by a formal demand that the matter be inquired of by the record ; and the issue, when joined, is triable only by inspection of the record, by the court.^ 118. Issue, When Well Tendered, Must be Accepted. — When a pleading concludes to the country, the opposite party must, if the issue be well tendered, both in point of substance and in point of form, accept or join in it. This is done by filing what is called the similiter^ in these words : " And the said doth the like." ^ If the issue be not well tendered, that is, if the traverse be bad, in substance or in form, or if the issue be not triable by jury, the opposite party may demur. When the issue tendered is to be tried by the record, no formal acceptance of it is required. This rule applies, also, to an issue in law, tendered by de- murrer ; and the party whose pleading is opposed by a de- murrer must formally accept the issue, whether well or ill tendered, by a set form of words called " joinder in demurrer," whereby he reaffirms the legal sufficiency of his pleading.* 119. Rules to Prevent Prolixity and Delay. — Subserv- ient to the foregoing rules for the production of an issue, are the following, to prevent the retardation of the issue. There must be no departure in pleading. Departure takes place when a party deserts his former ground of complaint or defense, and resorts to another. Each successive jDleading must fortify what has previously been pleaded by the same party. That is, the replication must support the declaration, the rejoinder, the plea in bar, and so on ; otherwise, the parties might, by changing the grounds of complaint and of defense, indefinitely prolong the judicial altercation, and ' Ante, 63. 3 ^nte, 62. • Ante, 62, and note. * Ante, 80. ^ g 120 HISTORY OF PLEADING. 104 delay the issue. If to assumpsit the defendant plead infancy, and to a replication of necessaries he rejoin payment, the rejoinder is a departure; but if to a declaration upon a statute, the defendant plead its repeal, a replication that it has been revived by a subsequent act is not a departure. The replication would fortify the ground taken in the declar- ation; for the reviving act gives new effect to the former, on which the action is founded.^ A plea that amounts to the general issue should be so pleaded. In debt for the price of a horse sold, a plea that the defendant did not buy is bad, for it amounts to nil debet. If in debt on bond, the defendant confess the bond, but allege that it was executed to a person other than the plaint- iff, the plea is bad, as amounting to the general issue non est factum^ which would be the proper plea.^ All surplusage should be avoided. This rule excludes not only matters wholly foreign, but matters which, though not wholly foreign, do not require to be stated ; it sanctions terseness and brevity of statement, and condemns prolixity. Superfluous matter does not, in general, vitiate a plead- ing; the maxim being utile per inutile non vitiatur.^ But where the surplusage consists in an unnecessary detail of circumstances, so connected with material matter as to be in- separable from it, the whole may be traversed, and the party so pleading will then be required to prove his allegations with the same particularity with which he has pleaded them.* The court may order redundant and immaterial matter to be stricken from a pleading. II. RULES FOR SECURING MATERIALITY IN THE ISSUE. 120. Of Materiality in General. — Materiality is of the essence of the judicial altercation. Immateriality is an unpardonable fault in pleading. It is a defect which no cir- cumstance, not even the verdict of a jury, or tlie judgment of a court, can cure. If averments or denials be not impor- tant to the decision of a cause, no matter how formally they ' Gould PI. viii. 71. ^ gteph. pi. 411 ; Gould PL iiL » Steph. PI. 407. 170. 4 Steph. PI. 413. 105 COMMON-LAW PROCEDURE. § 121 may be made, and no matter how true they may be, they can not avail the parties, or advance the administration of justice. A pleading must be material in itself ; that is, if a declara- tion, it must show a right of action in the plaintiff and against the defendant. If a subsequent pleading, it must respond to that next preceding it, must be consistent with the state of the case at the time, and must tend to forward the altercation. A pleading must also be material as to the parties. The declaration must make the proper person plaintiff, and the proper person defendant, and the aver- ments of subsequent pleadings must relate to these parties. And a pleading by way of traverse must tender a material issue ; that is, an issue fit to decide the action. • 121. Only Material Matter Traversable. — The object of the judicial altercation is to ascertain the subject for decision. This the common-law procedure does by the de- velopment of an issue — a specific matter affirmed by one party and denied by the other. It is clear that the point so proposed and accepted for decision must be one whose deter- mination will decide the real controversy ; otherwise, the determination of it decides nothing, and the court may award a repleader, in order to obtain a material issue. In debt on bond, an allegation that defendant was of full age when he gave the bond is premature and unnecessary, and a traverse of such allegation would present an imma- terial issue. In such case, infancy is a defense, and should not be anticipated in the declaration. Traverse of matter of aggravation, which tends only to increase the amount of damage, and does not concern the right of action, tenders an immaterial issue. In trespass for chasing sheep, whereby they died, a traverse of the dj-ing, which is matter of aggravation, tenders an immaterial issue. The traverse of only one of several material allegations is not in conflict with this rule *, for where several distinct allegations are essential to a cause of action, the denial of any one of these is destructive of the right of action, and tenders a material issue. ^ ' Steph. PI. 295 §§122-123 HISTORY OF PLEADING. 106 ni. RULES FOR SECURING SINGLENESS IN THE ISSUE. 122. Pleadings Must Not he Double. — This means that the declaration must not, in support of a single demand, allege several distinct matters, any one of which will support such demand ; and that any subsequent pleading must not contain several distinct answers to that which precedes it. A violation of this rule tends to create several issues in respect of a single claim, and is called duplicity. In assumpsit for nourishing the defendant, if the plaintiff allege the defendant's request, and his promise to pay a sum certain for the services, and also that he promised to pay so much as the services were reasonably worth, the declaration is bad for duplicity. This rule does not, however, forbid the allegation of dis- tinct matters in support of as many several demands ; and it allows the making of distinct answers to different matters of complaint, but not several answers to the whole of the dec- laration. In an action on two bonds, the defendant may plead payment as to one, and duress as to the other ; but if he plead as to one a release of all actions, and as to the other duress, his plea will be double, because the release is an answer to the whole of the declaration. Matter that is immaterial will not make a pleading double ; though material matter ill pleaded will. The reason is, that no issue can properly be taken upon immaterial matter ; but if material matter be ill pleaded, the opposite party may waive the formal objection, and go to issue upon it. Neither a protestation, nor matter that is only an induce- ment to another allegation, will make a pleading double. And several matters that together constitute but one con- nected proposition do not make a pleading double.^ 123. The Joinder of Causes. — Where a plaintiff has several distinct rights of action against the same defendant, he may, subject to certain limitations as to the character of his demands, join them in the same action. In cases of join- der, each cause of action must be separately stated, and must be complete within itself. Each of several causes so joined 1 As to duplicity at common law, see Steph. PI. 300-310. 107 COMMON-LAW PROCEDURE. §124 is called a count ; and to each count the defendant may de- mur or plead, as though it stood alone. As to what causes may be joined, there has always been some diversity among writers on pleading. The general rule seems to be, that only those within the same form of action, and not requiring different judgments, may be joined. Thus, debt on bond and debt on simple contract may be joined, but debt and trespass can not be. The reasons probably are ; (1) that each form of action had, originally, its peculiar form of original writ, and one action could not be grounded on two writs, and (2) that only one judgment could be rendered in one action, and causes requiring different forms of action might also require different judgments.^ Actions in form ex contractu can not be joined with those in form ex delicto. A plaintiff can not join a demand in his own right and a demand en autre droit ; nor can he join a demand against the defendant on his own liability and one on his liability in a representative capacity. For example, a demand against the defendant as executor and a demand against him personally may not be joined ; for as to one the judgment would be de bonis testatoris, and as to the other it would be de bonis propriis.^ Misjoinder of causes is fatal to the declaration, on demur- rer, on motion in arrest of judgment, or on writ of error.^ The joinder of several counts, each relating to a distinct demand, does not violate the rule against duplicity, the ob- ject of which is only to prevent several issues in respect of a single demand.* 124. Use of Several Counts for One Right of Action. — It sometimes happens that a pleader, having stated a case in one form, is in doubt as to its sufficiency in point of law, or as to sustaining it in point of fact. To avoid miscarriage in such case, the practice grew up, under a relaxation of the rule against duplicity, of inserting two or more counts, differ- ing in form, but all based upon the same state of facts, and 1 Evans PI. 80 ; Gould PI. iv. 84, » Gould PI. iv. 97 ; 1 Ch. PI. 205. d6, 97. 4 Steph. PI. 310. * 1 Ch. PI, 199-204. gj 13ft- 126 HISTORY OF PLEADING. 108 ill support of the same demand. For example, in an notion for the price of goods, the circumstances of the transaction may be such as to make it doubtful whether the action should be for goods sold and delivered, or for work and labor done i in which case, two counts would be inserted, setting forth the one demand in tliese two ways. It is to be observed, however, that when a declaration con- tains several counts, whether for distinct demands or for but one, they must always purport to be founded on separate and distinct rights of action, and not to refer to the same matter. In this way, while the rule against duplicity is evaded, it is not directly violated.^ 125. Use of Several Pleas. — Formerly, but one plea could be pleaded to any one count ; and if the defendant had sev- eral defenses to one demand of the plaintiff, he was obliged to rely upon the one he thought most available. But this restriction, after being observed for ages, was finally so far relaxed by legislative enactment, as to allow the defendant, by leave of the court first obtained, to plead several defenses to one subject of complaint. This relaxation extends only to pleas in bar, and not to dilatory pleas ; and it does not extend to subsequent pleadings. For the same reason that a party is not allowed to plead double, he is not permitted both to plead and demur to the same matter, lest an issue in fact and an issue in law, in respect of a single subject, be thereby produced. But this inhibition does not prevent a party from pleading as to one matter, and demurring as to another distinct matter* IV. RULES FOR SECURING CERTAINTY IN THE ISSUE. 126. Certainty in Pleading. — It is obvious that some de- gree of certainty is indispensable to the judicial altercation. The old writers perplexed the subject with much useless refinement as to degrees of certainty. They distinguished three degrees ; certainty to a common intent, certainty to a certain intent in general, and certainty to a certain intent in 1 Steph. PL 314 ; Post, 206 et seq. ' Steph. PI. 323. [00 COMMON-LAW PROCEDURE. §g 127-128 every particular. Tlie third, or highest degree of certainty, being required only in pleas of estoppel, and in dilatory pleas; these being odious pleas, the former because they preclude a party from asserting the truth, inconsistent with the matter pleaded, and the latter because they tend to defeat suits upon grounds other than their merits.^ Such precision and clear- ness as will make the meaning plain to the ordinary mind — and this is certainty to a common intent — is all that tl)e object of pleading requires, and is all that is ordinarily demanded as to the manner of statement. The certainty re- quired at common law relates mainly to parties, place, time, and subject.^ 127. Certainty as to Parties. — For the purpose of identi- fying the parties, they should be described by both Christian name and surname ; and if either has a name of dignity, that, too, must be used. If two or more persons sue, or are sued, as copartners, the full name of each person must be used. The use of the film name alone would not be a sufficient description ; for such name, being purely arbitrary, may not contain the name of any member of the firm, and so would not identify the persons suing or being sued.'* A corporation differs from a copartnership in this, that it must sue or be sued in its corporate name ; for, being an artificial person, its corporate style is its personal name, and identifies it with certainty. A mistake in the name of a party is ground for plea in abatemsnt only ;^ but misnomer of one not a party is a fatal variance.^ 128. Certainty of Place. — Formerly, jurors were sum- mojied fmm the particular neighborhood where the facts in dispute arose ; and as a guide to the sheriff in executing the venire facias^ the declaration was required to show the county and neighborhood in which the matter complained 1 Gould PI. iii. 53-58. ship to sue or be sued in the firm ' Gould PI. iii. 60. name. Post, 171, 180- * This rule is changed in many of "* Ante, 58. the states, authorizing a copartner- « Steph. PL 341. § 123 HISTORY OF PLEADING. IK of arose. Such place was called the venue in the action, and the allegation thereof was called laying the venue. If a subse- quent pleading alleged new matter, so as to divert the con- tention to such new matter, it was, for the same reason, required to lay the venue of such new matter. If, in debt on bond, tlie defendant simply denied the bond, the issue would be tried l)y a jury from the county laid in the declaration ; but if the defendant pleaded a release, laying the venue thereof in another county, the issue, upon a traverse of such plea, would be tried by a jury from the latter county. And upon the establishment of nisi prius trials, issues triable by jnry were to be tried, not only by a jury of the vicinage, but within the county where the facts arose ; hence the laying of the venue served the additional purpose of indicating the place for trial. But in more modern times, when jurors are to decide causes upon the testimony of witnesses, and not upon what they personally know of the facts in issue, they are uniformly summoned from the body of the county in which the action is laid, whether that be the venue laid to the fact in issue or not. Before the change in the constitution of juries, the reason of the law required the venue to be laid in the true place where the fact arose ; but after such change, and when the venue came to relate only to the place for trial, this reason ceased to operate, and the law began to distinguish between cases wherein the truth of the venue was material, or of the substance of the issue, and those in which it was not so. A difference now began to be recognized between mattere local and matters transitory.^ It was held that when a local fact was laid at a certain place, and issue was taken on such fact, the place was part of the substance of the issue, and must be proved as laid ; but that a transitory fact might be laid as having happened at one place, and might be proved to have occurred at another. It was accordingly held, that in a local ' Steph. PI. 329, 330. Local such as might have happened any- facts are such as carry with them where ; and comprise generally all the idea of some certain place ; matters relating to the person or and comprise aU matters relating to personal property ; such as debts, to realty. Transitory facts are contractB, etc. Ill COMMON-LAW PROCEDURE. §129 action — one in which all the principal facts on which it is founded are local — the venue in the action must be laid truly ; but that in a transitory action — one in which any principal fact is of the transitory kind — the venue may be laid in any county.^ But whether the action be local or transitory, every local fact alleged in any pleading must be laid with its true venue, on peril of a variance, should the fact be brought in issue. And it seems that when a transi- tory matter is alleged out of its true place, it should be laid under a videlicet ; that is, with the prior intervention of the words " to wit," or " that is to say ; " the effect of which is, to mark that the party does not undertake to prove the pre- cise place. 2 129. Certainty of Time. — In personal actions, the plead- ings must allege the time when each traversable fact oc- curred ; and wlien a continuous act is alleged, the period of its duration should be stated. If the continuity of the act be such as to constitute but one occasion, it should be laid with a continuando — " and continuing tlie said acts for three days following ; " otherwise, the acts should be laid on a particular day, " and on divers other days and times," be- tween that and another day named.^ The laying of time, like tlie laying of venue, applies only to traversable facts, and does not extend to matters of inducement or of aggra- vation. The same liberty that applies to the allegation of place, in transitory matters, applies to allegations of time, in matters generally. But this rule is subject to certain restrictions. (1) If the pleader does not wish to be held to prove the time alleged, it should be laid under a videlicet. (2) A time that is intrinsicall}^ impossible, or is inconsistent with the fact to which it relates, should not be laid ; and if so laid, to a traversable fact, is subject to demurrer. (3) If time is a ' From an abuse of this right to of the defendant, and for his pro- lay the venue in transitory actions tection. in any county, arose the practice ' Steph. PI. 332. of changing the venue, on motion ^ Gould PI. iii. 86-89 ; Bouv. Die, voce " Continuando." gl30 HISTORY OF PLEADING. 112 material point in the merits of the case, and the time laid be traversed, it is of the substance of the issue, and must be strictly proved, to avoid a variance. In such case, the inser- tion of a videlicet will not avail. Tlie general rule is, that when time is immaterial, the pleader is not confined in his allegations to the true time, nor in his proofs to the time alleged. But in pleading any writ- ing, — such as a record, promissory note, or bill of exchange, — the date thereof should be truly stated ; for though the date of a contract is strictly no part of the contract, it enters into the description of it, and if misstated in the pleading, there will be a variance in the proof. Certainty in such case is required for the further reason, that the judgment on such instrument may be a bar to another suit on the same instru- ment.^ 130. Certainty as to the Subject of the Action.— In actions for injury to goods and chattels, the declaration should show the quantity, quality, and value; and inactions for the recovery of real property, its quantity and quality should be specified. This requirement as to description of the property is for tlie purpose of identifying it ; the value is to be alleged to furnish, prima facie^ a rule of damages. But as the pleader is not obliged to state the true value, this requirement is of no practical use.^ Pleadings must show title. That is, when a right is as- serted in respect of certain property, real or personal, some adequate title thereto must be alleged ; or if a pleading charges one with liability in respect of ceitain property, his title to such property must be alleged. Such title must be alleged as will, in law, sustain the right asserted, or the lia- bility charged.^ Where the property is personal, if a title of possession is sufficient, it may be shown by following a description of the property with the phrase "the goods and cliattels of the said plaintiff." Ownership of chattels may be sliown by alleging that the party was "lawfully possessed of them as of his own ' Gould PL ui. 60-101 ; Steph. PL 2 Gould PL iv. 37 ; Steph. PL 340. 833 et seq. ^ steph. PL 342 ; Post, 323-325. 113 COMMON-LAW PROCEDURE. gl31 property." Where the property is real, and a title of posses* sion is sufficient, if it be a corporeal hereditament, the allega* tion may be that it was " the close of the plaintiff," or, that he was " lawfully possessed of a certain close." If it be an incorporeal hereditament, the allegation should be that the party was possessed of the corporeal thing in respect of which the right is claimed, and by reason thereof was entitled to the right in question, at the time in question. If more than a title of possession is required, it must be stated in its ful) and precise extent ; as, that the party was " seized in his de mesne as of fee of and in a certain messuage." Where it is necessary to allege the derivation of title, if the party claim by inheritance, he must show how he is heir; to wit, as son or daughter. If he claim by immediate de- scent, he must show the pedigree ; for example, if he claim as nephew, he must show how he is nephew. If a party claim by conveyance or alienation, the nature of the conveyance or alienation must be stated, and stated according to its legal effect rather than its form of words.^ 131. Certainty as to Subject of Action, Continued. — Where a party alleges title in his adversary, it need not be alleged more precisely than is sufficient to show the liability sought to be charged in respect of it; and generally, less precision is required than where a party states his own title. For example, where a plaintiff alleges title in himself to a particular estate, the commencement thereof should be shown, unless it be alleged by way of inducement ; but in l)leading such title in his adversary, the commencement need not be shown. 2 Where the opposite party is estopped from denying title, no title need be shown. Thus, in an action for goods sold and delivered, the plaintiff need not allege that they were his goods. So, in an action by lessor against lessee, on the lease, title need not be alleged ; for the tenant is estopped from denying his landlord's title, so far as necessary to authorize the lease. But if such action be by the heir, ex- ecutor, or assignee of the lessor, title of the lessor must be ' Steph. PI. 349. » Steph. PL 353. §132 HISTORY OF PLEADING. II4. alleged, to show that the reversion is legally vested in the plaintiff ; for the tenant is not bound to admit title greater than would authorize the lease. ^ Pleadings must show authority. That is, where a party instifies under a writ, or other authority, he must set it forth particularly, and must show that he has substantially pursued it. Where a defendant justifies under judicial process, if he be an officer who executed the writ, he is required to plead only the writ, and not the judgment on which it was founded ; otherwise, he must set forth not only the writ, but the judgment as well. The reason for this distinction is, that it is an officer's duty to execute a writ that comes properly to him, without inquiring about the validity of the judgment on which it was founded.^ The allegation of title, or of authority, if put in issue, must be strictly proved as laid.^ Pleadings must not be in the alternative. A charge that the defendant wrote and published, or caused to be written and published, a certain libel, is bad for uncertainty.* 132. Rules Limiting the Degree of Particularity.— The foregoing rules for securing certainty in the issue are both modified and amplified by certain rules tending to secure brevity, and thereby clearness, in the pleadings. It is not necessary in pleading to state that which is merely matter of evidence ; in other words, in alleging a fact, those subordinate circumstances, which merely tend to prove such fact, need not be stated. This rule requires discrimination between operative facts and evidential facts.^ Matters of which the court will, ex officio, take notice, need not be stated. This includes matters of law, except private statutes and foreign laws, and all those facts of which courts, for various reasons, take judicial notice without alle- gation and proof.^ A party should not state matter that would come more properly from the other side. This means that a pleader ' Steph. PI. 354. ■• Steph. PL 389. » Steph. PI. (Tyler's edition) 303. » Ante, 3 ; Post, 347. » Steph. PI. 324-356 ; Govld. PI. * Post, 841, 342. iii. 166 et seq. 115 COMMON-LAW PROCEDURE. § 13^ should not anticipate the answer of his adversary ; which, as Lord Hale said, is " like leaping before one comes to the stile." Pleadings in estoppel are an apparent exception to this rule. These must be certain in every particular, must leave nothing to intendment, and must remove, by anticipa- tion, every possible answer of the adversary. It is not necessary to allege a fact necessarily implied from other facts alleged. Thus, if a feoffment be pleaded, livery of seizin need not be alleged. Nor is it necessary to allege what the law will presume. In an action for slander imput- ing theft, the plaintiff need not aver that he is not a thief, for the law presumes that. A general mode of pleading is allowed where great prolixity is thereby avoided, or where the allegations on the other side must reduce the matter to certainty. This is doubtless the foundation of general allegation of performance of conditions precedent, authorized by some of the codes.^ No greater particularity is required than the nature of the thing pleaded will conveniently admit of. And less particu- larity is required, when the facts lie more in the knowledge of the opposite party than of the party pleading. Less particularity is necessary in the statement of matter of inducement, or of aggravation, than in the main allega- tions. This is probably for the reason that matters of induce- ment and of aggravation are, as a general rule, not traversable, and therefore, particularity therein will not conduce to cer- tainty in the issue. When an act valid at common law is regulated as to the mode of performance, by statute, only such certainty of al- legation is required as was sufficient before the statute. For example, certain leases, valid at common law if made by parol, are required by the statute of frauds to be in writing ; yet in declaring upon such lease, it is not necessary to allege it to be in writing. A distinction has been taken, however, between a declaration and a plea, and when a lease, within the statute, is pleaded in bar, it must be shown to be in writiug.2 » Post, 372, 373. « Post, 333. Sg 133-135 HISTORY OF PLEADING. 116 V. RULES TO PREVENT OBSCURITY AND CONFUSION. 133. Repugnancy and Surplusage. — When matter wholly inoperative and useless is stated, it is denominated surplusage^ and will be disregarded by the court ; the maxim being, utile per inutile non vitiatur. But if the unnecessary matter shows that the party has no right of action, or no defense, it renders the pleading ill in substance, and can not be rejected as immaterial.^ Where material facts stated in a pleading are inconsistent one with another, the fault is denominated repugnancy, and is ground for demurrer. 134. Of Ambiguity. — A pleading that is doubtful in meanin,g, is to be construed most strongly against the party pleading. This rule of construction is directed against am- biguity, and is based upon the presumption that every per- son states his own case as favorably to himself as possible. If, in trespass quare clausum /regit, the defendant plead that the locus in quo was his freehold, he must allege that it was his at the time of the trespass. But a pleading is to have a reasonable intendment and construction, and this rule is to be applied only where the language is clearly equivocal and capable of different meanings.^ In debt on bond, conditioned to procure A. to surrender a copyhold to the use of plaintiff, a plea that A. surrendered and released the copyhold to plaintiff, without alleging that the surrender was to the plaintiff's use, is sufficient ; for this shall be intended. 135. Forms of Allegation. — Much care and attention is given, at common law, to the forms of statement, with a view to prevent obscurity and confusion. All pleadings are required to be absolute in form, and argumentativeness is not allowed. Negatives pregnant — denials which imply an affirmative — are not allowed, because they are both ambigu- ous and argumentative ; and two affirmatives, or two nega- tives, do not make a good issue, because they traverse only by way of argument.^ ' Gould PI. iii. 171. » Steph. PI. 384-389. These faults ' 1 Ch. PL 237, 238. in pleading being equally faults 117 COMMON-LAW PROCEDURE. glSS Things are to be pleaded according to their legal effect or operation. A written instrument should be set forih, not according to its terms, or its form, but according to its effect in law ; because, to ^jlead it in terms or form only, is an indirect and circuitous method of allegation. If a deed purporting to " give, grant, bargain, sell and release," can be operative in law only as a release, it should be pleaded as a release; and if it can operate only as a deed of barr/ain and sale, it should be pleaded as such. This rule extends, not only to writings, but to all matters and transactions in which the form is distinguishable from the legal effect. But in modern times this rule is in many cases relaxed, and the pleader allowed to recite the instrument in hcec verba, and refer its legal operation to the court ; and in actions for libel and slander, where the words themselves must be set forth this rule never obtained.^ 136. Approved Forms of Expression. — Pleadings should observe tlie ancient forms of expression, as contained in ap- proved precedents. It was not possible that set forms of ex- pression could be devised for every matter that might become the subject of judicial inquiry; but some kinds of cases re- curred so often, that there grew up for them stated and apt forms of allegation, which were adhered to by pleaders until, by long usage, they became established. The forms of trav- erse called the general issues are examples of these estab- lished precedents.^ Pleadings should also have their proper formal commence- ments and conclusions. This requirement relates only to pleadings subsequent to the declaration ; and its importance lies in the fact that the formal commencement and conclu- sion mark the object and tendency of the pleading, as being to the jurisdiction, to the disability, in abatement, or in bar.^ Pleas must be pleaded with a defense ; that is, they must be introduced by a formal resistance of the matters charged in the declaration. In personal actions, this formal introduc- under the Reformed Procedure, • Steph. PI. 390 ; Gould PI. iii. their full consideration is reserved 174-182. for a subsequent part. Post, 360-362. ' Steph. PI. 392. 3 Steph. PI. 399. §136 HISTORY OF PLEADING. US tion is — " And the said C. D., bj E. F., his attorney, comes and defends the wrong and injury, when and where it shall behoove him, and the damages, and whatsoever else he ought to defend, and says," etc.^ A plea in bar has this formal commencement : " says that the said plaintiff ought not to have or maintain his aforesaid action against him, the said defendant, because, he says," etc. And it has this formal conclusion, following the verification : "Wherefore he prays judgment of the said plaintiff ought to have or maintain his aforesaid action against him." But such pleadings as tender issue do not conclude with this formal prayer of judgment', but with .a formal offer to refer the issue to some authorized mode of trial.^ And all pleadings by way of estoppel have a commencement and conclusion peculiar to themselves. A plea in estoppel has this commencement : " says that the said plaintiff ought not to be admitted to say " (stating the mat- ter to which the estoppel relates), and this conclusion : " Where- fore he prays judgment if the said plaintiff ought to be ad- mitted, against his own acknowledgment by his deed afore- said, (or as the matter of estoppel may be), to say that," etc.^ A pleading that is bad in any material part is bad alto- gether. If a declaration in assumpsit contain two counts, on different promises, a plea of the statute of limitations, to both counts conjointly, if good as to one and insufficient as to the other, is a bad plea ; and upon demurrer, judgment would be given for the plaintiff, This rule seems to result from the requirement that each pleading shall have its proper formal commencement and conclusion. As the commencement and conclusion of a single plea relate to and question the whole action^ the sufficiency of the plea must be determined by con- sidering it as an answer to the action as an entirety ; and if it be insufficient as to one count, it can not avail as to the other. If, in the case supposed, the statute were pleaded to each count separately, each plea having its own commence- ment and conclusion, the invalidity of one could not vitiate the other. ' Gould PI. u. 6 ; Steph. PI. 421. » Steph. PI. 397. « Ante, 62. 119 COMMON-LAW PROCEDURE. §136 The declaration, having no such commencement and con- clusion, does not fall within this rule. Therefore, if a dec- laration be bad in part, but good in another part, relating to a distinct demand, a demurrer to the declaration as an en- tirety would be overruled, and judgment given for tae plaintiff.^ » Steph. PL 401. ;^, /3 CHAPTER XII. NATURE AND EXTENT OF EQUITY JURISDICTION, i 137. Defects of the Common-law Procedure. — The common-law procedure is confined within narrow channels, and the relief afforded by its courts is limited to such as may- be had within certain well defined forms of action. Its mode of procedure is fixed and unpliable, while *he affairs of life, to be regulated by law and its administration, are ever increasing in novelty and in complexity. The substantive law, tending to adapt itself to the changing conditions of the people, is continually recognizing new jural relations, giving rise to new rights to be protected, and new duties to be enforced. The technical and unyielding procedure of the common law, aided and adapted from time to time by the introduction of fictions, was long ago found inadequate to give relief in many cases where recognized rights were threat- ened or invaded. The common-law courts do not protect rights by laying personal commands upon those who invade them, or threaten to invade them. For refusal to perform a contract, a court of law can only adjudge damages, no matter how inadequate such relief may be, or how important actual performance may be to the party entitled thereto. A court of common law can not interfere to prevent a threatened injury, though it be in its nature irreparable by damages ; all it can do is to award damages, after the injury has been committed. ^ Equity procedure has been ance in courts of chancery, but to much modified in this country, by set forth the equity system, as one rules prescribed by the Supreme of the progressive stages in the Court of the United States, and historical development of pleading, by statutes and usage in the itistheearlier matured system, and several states ; but as this outline not the modem modifications there- is designed, not for practical guid- of, that is presented. 120 121 EQUITY PROCEDURE. gl38 An important limitation upon the power of common-law courts is, that they can not deal with a controversy to which there are more than two sets of parties. The jurisdiction of a court of law is contentious only, and is stiiclly limited to deciding controversies. A judgment at law must be simply for the plaintiff, or simply for the defendant ; there can be no qualification or modification thereof, however much justice may require it ; and a defendant can not liave affirma- tive relief touching the subject-matter of the action, from either the plaintiff or a co-defendant. And a common-law court can enforce its judgment for the recovery of money, only by execution against tangible property ; choses in action, and equitable interests, whatever their amount and value, can not be reached by its process. 138. Origin and Nature of Equity Jurisdiction. — The jurisdiction in equity arose as the complement of the common law ; in some instances to mitigate and moderate it, in others to extend and amplify it. So narrow and so technical had the common-law procedure become, that in some cases of violence to recognized rights it was unable to afford any relief; in others it did not furnish an adequate remedy, and in some instances it was practically subversive of justice. To effectually remedy these defects, it was necessary to create a subsidiary juridical system, with a tribunal not trammeled by the rigid formalities that circumscribed the common-law procedure. A juridical system was needed that would regard the real intent of parties, rather than the out- ward forms they had employed ; a system that aimed at the prevention of injuries, and the enforcement of duties, rather than mere compensation in damages. A judicial tribunal was needed that should proceed upon the theory that parties litigant owe a personal obedience to the court ; a tribunal whose decrees should operate in personam, compelling the parties to do whatever it should be decided they ought to do ; a tribunal that could deal with more than two parties to an action, and that could mould its decrees to suit the exigencies and peculiar circumstances of a particular case. To supply this need in the administration of justice, the § 139 HISTORY OF PLEADING. 122 jurisdiction in equity arose, whereby the Chancellor, with- out the intervention of a jury, made and enforced his orders, secundum cequum et bonum.^ 139. Extent of the Jurisdiction. — To bring a cause within the jurisdiction of a court of equity, it is requisite, either that the primary right involved be an equitable right, as contradistinguished from legal rights ; or, that the remedy at law — the right involved being a legal right — is not full, adequate, and complete. For example, equity recognizes and protects a title in a cestui que trust that is not recognized at law. The essential idea of a trust is, the separate co- existence of the legal title in one, as trustee, and of the beneficial ownership in another, as cestui que trust. Of this beneficial interest the courts of common law took no cognizance ; but courts of equity have given it the dignity and the protection of a title. At common law, a mortgagee becomes, upon default of the mortgagor, the absolute owner, and the mortgagor's title is wholly gone. But equity, to relieve the mortgagor from this hardship of the common law, recognized a title still remain- ing in the mortgagor ; to wit, his equity of redemption. Equity having thus interposed in favor of the mortgagor, interposed again in favor of the mortgagee, by entertaining his suit to foreclose the mortgagor's equity of redemption ; otherwise, the tenure of the mortgagee after default would be continuously menaced by the mortgagor's right to redeem at any moment. Equitable liens furnish an instance of rights that are purely of equitable conception. The lien of a vendor on the land ' The creative and progressive The doctrines of equity are pro-, capacity of tlie equity branch of gressive, refined, and improved ; the law is thus stated by a distin- and if we want to know what the guished equity judge : "It must rules of equity are, we must look, not be forgotten, that the rules of of course, rather to the more courts of equity are not, like the modern, than to the more an- rules of the common law, supposed cient cases." Sir George Jes- to have been established from time sel, M. R., in re Hallett's Estate, immemorial. It is perfectly well Knatchbull v. Hallett, 13 Ch. D. known that they have been estab- 710. Ijshed from time to time. . . . 123 EQUITY PROCEDURE. §§140-141 sold, for unpaid purchase-money, is an example of equitable liens, enforceable only in a court of equity. Specific performance is a familiar example of equitable remedy for breach of a legal right, on the ground that the only legal remedy, in damages, is not full and adequate. And injunction is an equitable remedy often resorted to for the protection of legal rights, on the ground that the law does not furnish an adequate remedy. On this ground, equity will restrain waste, trespass, nuisance, and the aliena- tion of property. It will be observed, therefore, that the general field of equity jurisdiction embraces (1) causes wherein the title or the right involved is one recognized only in equity, and (2) causes wherein the right involved is a legal right, and is without adequate protection at law. 140. Equitable Remedies. — Of the remedies afforded by courts of equity, some are purely ancillary and provisional. Such, for example, are, the appointment of a receiver to take charge of property pending a litigation concerning it ; bills of discovery, whereby a party is compelled to make disclos- ures under oath ; and bills to take and perpetuate testimony as to a matter likely to be in litigation. Some equitable remedies are purely preventive. For ex- ample, the writ of 7ie exeat regno, to restrain a defendant from evading the jurisdiction ; injunctions, to prevent a threatened injury, or to restrain an actual wrong-doer ; and bills quia timet to guard against future and contingent in- juries. Other remedies are in their nature final, affording ultimate relief. Of this class are, the partition of lands, the specific performance of contracts, the reformation and cancellation of contracts, bills for account, partnership bills, creditors' bills, and the instances in which a court of equity will, vir- tute officii, exercise a guardianship over the property and persons of infants, idiots, and lunatics. 141. Foundation Principles of Equity. — Something has been shown of the nature and the subjects of equity jurisdic- tion, and of tlie remedies which it supplies ; and some of the necessities that called for this subsidiary juridical system § 141 HISTORY OF PLEADING. 124 have been briefly pointed out. Equity recognizes titles and rights not recognized at law, and it supplies remedies not fur- nished at law ; but it does not exercise an arbitrary jurisdic- tion. There are well defined principles and doctrines under- lying and permeating the whole system, largely drawn from the essential truths of morality, and based upon the enduring principles of justice and right. Cases of new impression, as they arise, are decided according to the principles upon which former cases have been decided, and thus the application of those principles is illustrated and enlarged ; but the priu' ciples themselves are fixed and certain. These underlying principles and doctrines — embodied, for the most part, in the maxims of equity — are the real prin- cipia of the system ; they are the never-failing source of its particular rules, they distinguish the system, they give to it character and coherence, they measure its jurisdiction, and are inseparable from its proceduret CHAPTER XIII. CONDUCT OF A SUIT IN AN EQUITY. 142. Origin and Nature of Equity Procedure. — Under the English constitution, the king is regarded as the fount- ain of justice ; and from t^'-^ie immemorial it was a preroga- tive of the king to administer justice to his subjects. He was bound to administer justice according to law ; but, in the ab- sence of legislative direction, was at liberty to employ such system of procedure as he chose. When the equity jurisdic- tion arose, to supply the deficiencies in the common law, it was regarded, in theory, as the exercise of that part of the king's judicial prerogative that had never been delegated to the common-law courts ; and the delegation of this reserved judicial power to the High Court of Chancery,^ carried with it the right to employ such mode of procedure as might be adapted to the dispensation of justice in this new and extra- ordinary jurisdiction. Accordingly, the mode of procedure that was so adopted, and that graduall}^ grew up in the court of chancery, followed in part the analogy of the common-law procedure, and in part the procedure then in use in the Eng- lish Ecclesiastical Coui'ts, which was modeled upon that of the Roman Oivil Law. In all that related to the formal conduct of an action, there ' This court, having both com- Chancery. In the United States, mon-law and equity %risdiction, the jurisdiction of the federal is of very ancient institution, and courts extends to "cases in law is presided over by the Lord Chan- and equity," and these courts sit as cellor, assisted by the Master of the courts of law or as couils of equity, Rolls, and three Vice-Chancellors. according to the nature of the case. These four subordinate judges sit In some of the states, distinct in separate courts, and exercise courts of chancery are established ; their jurisdiction severally ; but, but in most of them the two juris- together with the Lord Chancellor, dictions are exercised bv the same they constitute the High Court ot tnbunai. I2i> §§ 143-144 HISTOILY OF PLEADING. 1 (J was a wide difference between iiie procedure in the ecclesias- tical courts and the courts of common law. In the former, the proceedings were mainly conducted in open court, and the court exercised an active supervision and diiection of the proceedings as they were in progress. In the latter, the pro- ceedings were chiefly conducted out of court, by the attorneys, and the court interposed only upon the motion of one paity and notice to the other. In the one court, no pleading could be received without the approval of the court, first obtained ; in the other court, the pleadings were filed or served without permission, and their sufficiency, if questioned, was thereafter determined by the court. In these and some other formal matters, chancery followed the common law. It followed the ecclesiastical procedure in its mode of taking the testimony of witnesses, in requiring each party to submit to an examina- tion under oath by his adversary, and in particular it followed the ecclesiastical courts in adjudicating upon the duties of litigants, and compelling performance thereof. 143. Commencement of Suit in Equity. — A suit in equity is commenced by preferring, to the court having juris- diction of the cause and of the parties, a petition in writing, setting forth the facts and circumstances on which the claim ior relief is founded, and praying for such relief as the nature of the case may require, or as the petitioner may be entitled to. This petition, if preferred by an individual, is called a bill ; if preferred by the government, it is called an information. The plaintiff, if an individual, styles himself, in the bill, "your orator ; " if the suit be instituted by the government, the in- formation is exhibited by an officer of the government, or on tlie relation of an individual, called the " relator." 144. Appearance of the Defendant. — Upon the filing of the bill, the plaintiff files with the proper officer of the court a prcecipe, which is a written command to the officer to issue the process of the court for the appearance of the defendant. Thereupon there issues to the defendant a subpoena, which is a mandatory writ, under the seal of the court, requiring the defendant to appear on a day certain, and answer the bill. Appearance is the formal proceeding by which the de- fendant submits himself to the jurisdiction of the court. For- 127 EQUITY PROCEDURE. § 145 merly, if the defendant failed to appear in obedience to the command of the subpoena, there issued against him a long chain of process, ending in a sequestration of his property, f or the purpose of compelling an appearance ; but in more modern times an actual appearance is dispensed with, and a decree pro confesso may be rendered against an absconding or con- tumacious defendant. It will be observed that the commencement of a suit in equity differs materially from the procedure of both the civil law and the common law ; for in each of these systems the appearance of the defendant must be effected before tlie plaintiff can file his first pleading, while equity pursues the more logical theory of requiring the plaintiff to make formal complaint of the defendant before he may use the process of the court to subject him to its jurisdiction. 145. Of Defenses in Equity. — The defendant, having ap- peared, may defend himself against the allegations of the plaintiff's bill by disclaimer, by demurrer, by plea, by answer, and by cross-bill. If the defendant has no interest in the subject concerning which the suit is brought, he may answer the plaintiff's bill by a simple disclaimer, which is a formal renunciation of all claim in or to the subject of the action. But a defendant may not avoid an alleged liability by mere disclaimer. If it appear, upon the face of the bill, that the plaintiff has no right to require the defendant to answer, objection should be made by demurrer to the bill, or to some part thereof. If there are facts, not stated in the bill, which show that the defendant should not be required to answer the bill, these facts may be set up by a plea, which is a special answer, relying upon one or more facts as a reason why the action, should be dismissed, delayed, or barred. If the defendant neither disclaims, nor demurs, nor pleads, he must answer. An answer in chancery may be a denial, or a statement of additional facts, or it may be both. And a defendant may, by cross-bill, ask for discovery or for re- lief, or for both, against the plaintiff, or against a co-defend- ant. The cause, as in an action at law, may proceed to trial upon §§ 146-147 HISTORY OF PLEADING. 128 the bill and the answer or plea, or a formal replication may sometimes be tiled. 146. Tiie Witnesses, the Hearing, and the Decree. — In courts of law, witnesses are examined ore tenus, in open court ; but in chancery, the examination is conducted in private, and upon interrogatories in writing, previously framed. But this practice has been greatly modified in this country ; and in many jurisdictions witnesses are now exam- ined in courts of chancery as they are in courts of law. The cause being ready, and having been regularly set down for hearing, the parties appear by their counsel, and the hear- ing proceeds. The counsel state, briefly, the nature of the case, and the points in issue ; the testimony of the witnesses is read, and the arguments of counsel are heard ; whereupon, the court announces its decree, which is the judgment or order of the court, determining the rights of the parties as to all matters submitted upon the hearing. A decree is final when it determines the whole merits of the cause, and reserves or leaves no matters therein for the future consideration of the court ; it is interlocutor;!/, when it is made in the course of a cause, and does not finally dispose of it. An order appointing a receiver, or directing a sale, is interlocutory. 147. Of the Execution of Decrees. — It is a general prin- ciple, that courts must have power to carry their judgments and decrees into effectual operation ; otherwise, courts would be of no avail for the protection of rights, and litigation would be a fruitless ceremony. For this reason, a court of equity will not entertain a suit wherein it can not render a decree that it may enforce. For example, in an action by the vendee of land, for specific performance, if the defendant has, before suit, conveyed the land to a bona fide purchaser for value, and without notice, the court will not decree per- formance. For a like reason, performance of a contract for personal services, or for the construction of a build- ing, will not be decreed.^ If a decree in chancery be in personam, the regular course is, to issue a writ of * 3 Pom. Eq. Jur. 1405, and notes. _129 EQUTlv: PROCEDURE. §147 execution. This writ, which mast be served personally on the defendant, recites the decree, and commands per- formance of it. If the defendant refuse to perform the decree, he may be proceeded against as for contempt, and a writ of sequestration may issue. If the decree be in rem, as for the delivery of lands, it is usual, after service of execu- tion and attachment, to award an injunction to give the plaintiff possession. Formerly, a decree in chancery, being a personal command to the defendant, and requiring his personal act to carry it into effect, did not operate ex propria vigors to create or to vest a right or title ; but this ancient doctrine has very generally been modified, so that in all cases requiring some specific act to be done by the defendant, — as, for example, the conveyance of title to land, — the decree is made to oper- ate of itself as such act of the defendant, or the decree directs that the thing required of the defendant be done by an officer of the court, acting for him. 9 CHAPTER XIV. THE PLEADINGS IN EQUITY. 148. General Character of Pleadings. — In early times, when applications for equitable relief were comparatively rare, the pleadings were very brief, and were simple and informal in structure. As the business increased in volume and importance, the courts of chancery, untrammeled by the technical rules of the common law, and proceeding upon the broad equities of the case, naturally adopted a procedure characterized by the same breadth and adaptation that distin- guish the equity jurisdiction. The natural tendency was, to tolerate a full and indiscriminate statement of facts, opera- tive and evidential, not always excluding a statement of the law. This liberality led to a cumbersome prolixity and a perplexing confusion in the pleadings ; and, although they have gradually been subjected to rules and formal require- ments for securing certainty and uniformity, they have always been free from those niceties and subtleties which characterize the pleadings at common law. 149. Of the Bill in Equity. — The pleadings in equity consist, regularlj^ of bill, demurrer, plea, and answer ; and to these is sometimes added a replication. A bill in equity has two general purposes ; the statement of a right to relief, and the examination of the defendant upon oath. In its most technical and artificial form, the bill consisted of the following nine parts : — I. The Address. — In England, the bill is addressed to the Lord Chancellor; in the United 3; tes, to the judges of the court in which the suit is brought. For example, " To the Honorable, the Judges of the Circuit Court of the United States, within and for the district of , sitting in Equity." 130 131 EQUITY PROCEDURE. § 149 II. The Introduction. — This states the name and de- scription of the plaintiff, and the character in which he sues, whether in his own right, or en autre droit. The object is to fix the identity and the locus of the parties, and to facili- tate a resort to the plaintiff for compliance with any order that may be made upon him during the progress of the suit. In the courts of the United States, in cases where the juris- diction depends upon the citizenship of both parties, their citizenship should be stated in the introduction. III. The Premises. — This part of the bill, called also the stating part thereof, contains a full statement of the operative facts showing a right of action in the plaintiff, against the de- fendant. It is upon this part of the bill that the plaintiff must ground his right to relief. It should state matters of which the court has jurisdiction, and which, if true, en- title the plaintiff to the interposition of the court in his behalf. lY. The Confederacy. — This part charges that the de- fendant combined and confederated with divers other persons, to plaintiff unknown, to injure and defraud the plaintiff ; and it prays that these persons, when known, may be made defendants to the bill. This requisite of a bill probably arose from the mistaken notion that new parties could not be added by amendment, and that an allegation of confederacy would, of itself, sustain the jurisdiction of the court. But as there never was a time when such amendment could not be made, and as a mere confederacy was not sufficient to give a court of equity jurisdiction, it would seem, upon principle, that this requirement has always been useless and nugatory. y. Charging Part. — This part alleges the pretenses which it is supposed the defendant will set up as a defense, and then charges other matter to disprove or avoid them. Formerly, tlie answer of the defendant was followed by rep- lication and rejoinder. These pleadings were in most cases dispensed with, and instead of leaving the case to be further developed by evidence, and without pleadings, the plaintiff was allowed either to amend his bill after answer, or to an- ticipate the defense, and in this way expedite the case by incorporating in this part of his bill what was properly matter § 149 HISTORY OF PLEADING. 132 for reply. This is directly contrary to the common-law rule that defenses must not be anticipated. VI. Averment of Jurisdiction. — This clause avers that the acts complained of are contrary to equity, that the plaint- iff is remediless at law, and can obtain relief only in a court of equity. But as the jurisdiction of the court always de- pends upon the nature of the case as disclosed by the facts alleged, and not in any sense upon this mere assertion of a conclusion, this part of the bill serves no purpose whatever, and may, in any case, be omitted. VII. Interrogating Part. — The defendant is required, without interrogatories, to answer all the matters stated and charged in the bill. But to guard against evasiveness, and to obtain direct and full answers, the practice of inserting specific interrogatories grew up. These interrogatories do not en- large the duty of the defendant, for without them he must answer all the allegations and charges in the bill, and he is bound to answer the interrogatories only so far as they are based upon such allegations and charges. This part of the bill is purely subservient to its general purpose to require the defendant to answer under oath ; and it is important only as a means for obtaining a response as to collateral and minute circumstances, which, however material, the defend- ant might otherwise purposely evade, or honestly suppose he was not called upon to answer. VIII. Prayer for Relief. — The defendant is entitled to know upon what facts the plaintiff relies for relief, in order that he may prepare to meet them ; and for the same reason, he is entitled to know what use the plaintiff intends to make of his alleged facts. To this end, every bill for relief is re- quired to contain a prayer for relief. This prayer is special, stating the particular relief sought ; or general, asking such relief as the party may be entitled to. Tlie use of the gen- eral prayer is, that if the plaintiff has, in his special prayer, mistaken the relief to which he is entitled in the case, the court may, under his general prayer, grant him such relief as he may be found entitled to. The two forms are therefore generally combined; in fact, it is never prudent or safe to omit a prayer for general relief. If the plaintiff is in doubt 133 EQUITY PROCEDURE. §150 as to the proper relief in the case, he may, and should^ frame his special prayer in the alternative. And if any special order, such as injunction, or a writ of ne exeatj is desired pending the suit, it should be specially prayed for. Where it does not appear, from the facts stated and from the prayer for relief, upon what legal grounds the plaintiff rests his claim, such legal grounds should, for the reason al- ready given, be specially stated. For example, if a waiver of some right be relied upon, it is not, ordinarily, sufficient merely to state the facts constituting the waiver ; the use to be made of such facts, if it is not apparent from the state- ment of the facts, must be shown by alleging that the right has been thereby waived.^ IX. Prayer for Process. — The bill concludes with a prayer that a writ of subpoena may issue, requiring the de- fendant to appear and answer the matters alleged against him, and abide the determination of the court thereon. This prayer for process should state the names of all the defend- ants, designating those under age, or under guardianship. Every bill is required to be signed by the plaintiff's solic- itor, as a security that no impertinent or improper matter is contained therein. Formerly, the court examined tlie bill before it was filed, but with the increase of business this be- came impracticable, and the matter was left to the honor of the solicitor. 150. The Essentials of a Bill. — It is apparent that a bill containing all the nine parts just described would contain much that is not essential in a pleading invoking the interpo- sition of a court of justice. In fact, the use of some of these parts has always been optional, and some of them have been dispensed with by the rules of practice in courts of equity in England and in the United States. Upon principle, the essential parts of a bill, so far as it is a mere pleading, are only two — a statement of facts, and a prayer for relief ; all the other parts are formal, or pre- cautionary, or superfluous. The statement of facts, by \/ 1 Langdell's Eq. PI. 61, 62. §g 151-152 HISTORY OF PLEADING. 134, setting out the circumstantial relation of the parties, shows at once a right of action, the jurisdiction of the court, and what the defendant is to answer ; and the prayer for relief advises both the court and the defendant as to what the plaintiff seeks to attaim by the suit.^ So .far as the bill is to operate as an examination of the defendant, the charging and inquisi- tive parts thereof are essential ; but this use of the bill is purely a matter of practical expediency. The bill is not required to be sworn to ; but the answer thereto, being in part responsive to interrogatories, is required to be under oath. 151. Original Bills. — Bills vary in their form and denom- ination, according to the purpose for which they are used. The most general division is into original bills, and Mils not original ; and to this division is sometimes added, bills in the nature of original bills. Original bills are those filed in the commencement of a suit. They relate to some matter not before litigated be- tween the parties, and present it for the consideration of the court for the first time. Original bills are again divided into such as pray for relief, and such as do not pray for relief. In a general sense, every bill in equity asks relief ; but tech- nically, only such as seek an adjustment of the matters there- in complained of are so called. 152!. Bills for Relief. — Original bills praying for relief are these : Bills praying for the order or decree of the court touching some right claimed by the plaintiff, in opposition to some right claimed by the defendant, or touching some vio- lation of the plaintiff's right ; such are, bills to redeem, bills of foreclosure, bills for specific performance, for partition, for contribution, and for cancellation. To this class belong bills of interpleader, wherein the plaintiff prays only that the defendants, each of whom claims the same debt or duty from the plaintiff, may be required to interplead, that the court may, for the protection of the plaintiff, determine to which of the claimants he shall render that which he admits he owes. • Lang. Eq. PI. 55. 135 EQUITY PROCEDURE. §153 Of this class are bills of certiorari^ praying for the re- moval of a cause pending in an inferior court, to the superior court wherein the bill is filed. Such bill proceeds upon the suggestion that the inferior court, by reason of its limited jurisdiction, can not do full justice in the case. The prayer is for a writ of certiorari, directed to the inferior court, re- quiring it to certify the proceedings in the case to the supe- rior court. If the suggestion for removal is not sustained in the superior court, a writ of procedendo issues, directing the inferior court to proceed in the cause. These writs, of certiorari and procedendo, are not peculiar to the court of chancery. 153. Bills Not for Relief. — Original bills not prajang for relief are these : (1) Bills to perpetuate testimony, which pray that the testimony of witnesses may be taken with ref- erence to a matter not in litigation, but that may here- after be in litigation. Such bills must show a right of the plaintiff in the subject with reference to which th^ testimony is to be taken ; an interest in tlie defendant to contest the same ; and some ground for perpetuating the evidence ; as, that the matter in question can not at once be made the subject of judicial investigation. (2) Bills to take testimony de bene esse, which are to take testi- mony in an action at law, already pending, when there is cause to fear that by reason of the age, or infirmity, or in- tended absence of a witness, his testimony may otherwise be lost before the time of trial. Bills to perpetuate testimony can be resorted to only when no present suit can be main- tained ; while bills to take testimony de bene esse can be used only in aid of a pending action, and maj^ be filed by either party to such action. (3) Bills of discovery, which pray for the disclosure of facts resting within the knowl- edge of him against whom the bill is exhibited, or of deeds, writings, or other things, in his custody or power, and material to enable the party exhibiting the bill to prosecute or defend an action at law, between the same parties, already pending, or about to be brought. For a long time, a bill of discovery was the only means foe obtaining the testimony of parties to an action at law. But §§154-155 HISTORY OF PLEADING. 136 since parties are now generally allowed to testify in their own Ijeluilf, and may be required to testify in behalf of tlieir ad- versaries ; and since the adoption of the summary and inex- pensive method of taking the testimony of witnesses by writ- ten depositions, these cumbrous auxiliary proceedings, by bill not for relief, once so necessary for the attainment of justice, have been practically superseded, if not expressly abolished, both in England and in the United States. 154. Bills Not Original. — During the progress of a suit, there may be such change in the relation of the parties, either before decree, or after decree and before execution thereof, as to require the filing of an auxiliary bill, setting forth such change. If such secondary bill merely add new incidents to a still subsisting relation, it is supplemental ; if it state a new relation, between new parties, it is a revivor. A supplemental bill is an addition to an original bill, to supply some defect in it or in the proceedings thereon, not curable by amendment, or to allege facts occurring since the filing of the original bill. A bill of revivor is to renew and continue the original bill, when, by death or marriage of a party, the suit has been abated. A secondary bill may be both a revivor and a supplement, reviving the suit, and at the same time supplying defects or adding new events. 155. Bills in the Nature of Original Bills. — Among secondary bills are some of such nature as to be, strictly, original bills, yet the injuries they complain of proceed from a former or a pending suit. Bills of this kind are numerous, and only a few of them will be described. A cross-bill is one exhibited by a defendant, against the plaintiff, or a co-defendant, in a suit pending, seeking dis- covery touching matters in the original bill, or asking relief founded on some collateral claim against the plaintiff or a co-defendant. It frequently happens that in no other way can all the matters in dispute be brought fully before the court, and the court be enabled to make a complete decree. Bills of review are in the nature of writs of error. They are brought to have the decree of the court reviewed, modi- 137 EQUITY PROCEDURE. § 156 fied, or reversed, on account of error in the proceedings, or because of newly discovered evidence. To this class belong bills to impeach a decree on the ground of fraud, bills to suspend a decree, and bills to carry a decree into operation. 156. Demurrer to the Bill. — The defendant may respond to the bill in two ways ; he may contest the suit, or he may show reason why he is not called upon to contest. If he submits to contest the suit, he files an answer to the bill ; he shows cause for not answering, by demurrer or by plea. While both demurrer and plea are used to avoid answering the bill, they are based upon entirely different grounds ; a demurrer resting upon the apparent insufficiency of the bill, and a plea resting upon new facts alleged to show that the suit should be dismissed, delayed, or barred. Both demurrers and pleas were borrowed from the common law. It has been shown that an original bill for relief has two objects — discovery, and relief. A demurrer assumes the facts alleged in the bill to be true, and it questions their suffi- ciency to entitle the plaintiff to call upon the defendant for discovery, or for relief. The effect of a demurrer in equity is very different from its effect at common law. When a defendant demurs to a declaration, he prays judgment upon the plaintiff's claim •, and the plaintiff, by joinder in demurrer, prays the like judg- ment. The case being thus at issue, the decision is always followed by judgment, unless the defeated party obtains leave to amend or to plead. But when a defendant demurs to a bill, he prays judgment, not upon the plaintiff's claim, but whether he must answer the bill. The decision of the demurrer is not followed by a decree ; for all that is decided is, that the defendant is, or is not, bound to answer. If the demurrer be overruled, the defendant must plead or answer; if it be sustained, and the plaintiff does not obtain leave to amend, the defendant may move to dismiss the bill for want of prosecution. The theory of this distinction is, that a demurrer to a dec- laration admits the facts alleged, whereas a demurrer to a bill only assumes the truth of the bill, pro re nafa. In the one § 157 HISTORY OF PLEADING. I33 case, the facts are before the court for its decision as to plaintiff's I'ight to relief ; in the other case, an assumed state of facts is before the court for its decision as to the defend- ant's obligation to proceed in the suit. The form of de- murrer to a bill shows that both the admission of facts and the submission of the case are qualified and provisional. The usual form is as follows : " This defendant, by protesta- tion, not confessing any of the matters in and by said bill complained of to be true in manner and form as the same are set forth, says that he is advised that there is no matter or thing in said bill, good and sufficient in law, to call this de- fendant to account in this honorable court for the same. [Stating here the grounds of the demurrer.] Wherefore, this defendant demurs thereto, and humbly craves the judg- ment of this honorable court, whether he is compellable, or ought to make any answer thereunto, otherwise than as afore- said." The bill is the only pleading that may be demurred to in equity.^ The reason probably is, that one of the chief ob- jects in introducing demurrers was to protect the defendant from giving discovery. 157. Of Pleas. — A plea is a statement of facts not con- tained in the bill, to show cause why the suit should be dis- missed, delayed, or barred. It differs from an answer, as it demands the judgment of the court in the first instance, whether the matters alleged in it do not debar the plaintiff from the right to an answer. Pleas are usually divided into these four classes : (1) Pleas to the jurisdiction ; which do not dispute the right of the plaintiff, but assert that his claim is not cognizable in equity, or that some other tribunal has the jurisdiction. (2) Pleas to tlie person ; whicli deny the capacity of the plaintiff to sue. (3) Pleas to the bill, or to the frame of the bill ; which allege that for some reason, such as the pendency of another suit, or the want of proper parties, complete justice can not be done, and the suit ought not to proceed. (4) Pleas in bar ; which are founded on some bar created by statute, or by matter of record, or by matter in pais. 1 Crouch V. Kerr, 38 Fed. Rep. 549, and authorities there cited. 139 EQUITY PROCEDUEE. § 158 Two questions may arise upon a plea : first, is it sufficient in law ; and secondly, is it true in fact ? If, upon argument, it is held to be good in law, the plaintiff may controvert its truth by replication. 158. Of the Answer. — If the defendant does not demur, or plead, or make disclaimer, or if his demurrer or plea has been overruled, he may controvert the plaintiff's claim by answer. The answer in chancery contains two distinct elements — a discovery, and a defense. As to the former element, the answer must contain a distinct and categorical answer to every material allegation in the stating part of the bill, and in the charging part thereof. The object of these personal answers is to aid the plaintiff in proving his bill. If the bill contain irrelevant or immaterial allegations, the answer need not respond to them, because the plaintiff would not be entitled to prove them. So, if the bill Qontain matter to answer which would subject the defendant to a criminal prose- cution, he need not make answer to such matter. The de- fendant may set up in his answer as many defenses, and of as manj^ kinds, as he is able consistently to swear to. If the discovery in the answer be incomplete, or if the de- fensive matter be insufficient or indefinite, the plaintiff may file exceptions thereto, and require the answer to be made full and particular. It was originally the practice to follow an affirmative defense by a replication. The replication is now generally dispensed with, and the same end is accomplished by amend- ment of the bill ; though in some jurisdictions a formal repli- cation is still required. In courts of equity, matters of mere form are not allowed to prejudice the rights of parties ; consequently, there is great liberality as to amendment of pleadings, when substantial justice will be thereby promoted.^ ^ For studies in forms of plead- see "Barton's History of a Suit in ings in equity, and for Rules of Equity," and Rapalje's edition of Practice established by the Su- *' Lube's Equity Pleading." preme Court of the United States, \ CHAPTER XV. THE REFORMED AMERICAN PROCEDURE. 159. The Origin of Code Pleading.— The preceding chapters of this part have been devoted to an historical out- line of the several systems of procedure that led the way to the modern system, whose principles and their application are to be developed in the succeeding chapters of this treat- ise. It is not the purpose here to extol the new, or to de- cry the old; but to give some account of the origin, and of the inherent excellence, of the modern system. Numerous attempts were made, both in England and in this country, so to amend and simplify the common-law sys- tem as to free it from artificial technicalities, and bring it into harmony with the natural and logical foundations of pro- cedure. But its forms and formalities, its precise verbiage and its tedious ceremonies, had been wrought into a method so cumbrous that the iconoclastic hand of the legislature was required for the introduction of a plain and simple substitute, based upon the inherent nature of legal rights, the principles of the substantive law, and the general rules of argument. This innnv:^tion began in 1848, when the legislature of New York adopted a Code of Procedure. Since that time, two concurrent r»,g noles — the one legislative, the other judicial — have contri' > .t d to the development of the sj^stem. These agencies li;.ve contributed dissimilar elements. The statu- tory rules are positive, sometimes arbitrary, and are in their nature fixed and stable ; the judicial elements rest upon principle and reason, and are in their nature pliant and pro- gressive. From these sources, a system has been matured that is unique in its simplicity, complete in its scientific character, and unnvaled in its adaptability. 160. Fictions in Pleading are Abolished. — Resort to 140 [41 REFORMED PROCEDURE. § 161 fiction was not a progressive step in the development of plead- ing. It was a means for adapting the old forms to new de- mands, and at the same time preserving the time-honored forms. Fictions were invented to promote the ends of justice, not to thwart them ; and they were indulged only when pro- motive of justice. They required no proof, and were not tra- versable ; because, to require the one, or to permit ihe other, would defeat the purpose for which they were designed.^ In the Reformed Procedure, the pleader is required only to state the facts which, under the substantive law, constitute his particular right of action or defense, and is not required to state sucli facts as would show a right or a defense accord- ing to some ancient form. There are, accordingly, no " es- tablished forms ; " fictions are not needed, and they have, with trifling exceptions, been abolished. Ijt- 161. Forms of Action are Abolished. — The builders of the common-Lxw procedure classified actions, and adopted a distinct " form of action " for each class ; and they persistently adhered to these established forms of action. Each form of action had its peculiar technical phraseology, and the pleader, having determined the class to which his right of action be- longed, was required to conform his statement to the forms of expression peculiar to the form of action so adopted. This requirement aimed at certainty and precision. It was in- tended to give the defendant notice, from the very commence- ment of the action, of the nature of the complaint against liim ; to preclude the plaintiff from changing the ground of his complaint ; and to enable the court to apply to the case, as it progressed, its appropriate rules of pleading, of evidence, and of practice.^ These frame rs of the old system understood the objects of pleading, but the means they employed were sometimes ill adapted to the end in view. Greater diversity could hardly be found than that which distinguishes the different sets of operative facts conferring rights of action in the infinitude ' Gould PL iii. 18 ; Brinkeehoft, * Ante, 49. J.. ii/Wilson V. Wilson, 17 O. S. j' .'. loo ; Ante, 50. ^^ /W r ^ ^ ^ §162 HISTORY OF PLEADING. 1^2 of cases daily arising out of the jural relations among men. To group these into a few classes, to bring into each class an almost endless variety of circumstances, and to force these various sets of circumstances into a prescribed formula, is to obscure, rather than to disclose, the true state of facts relied upon. And in the use of forms of action, there is superadded to the task of determining whether the operative facts give a right of action, the further task of referring the case to its proper form ; and a mistake in adopting the form of action is always prejudicial, and sometimes irremediable.^ The new procedure abolished these " forms of action," and sub- stituted a single action for all cases, whether at law or in equity. 162. The Civil Action of the Reformed Procedure. — One of the most important reforms of the new procedure is the entire abolishment of " forms of action " as they ex- isted at common law, and the use of one form of judicial pro- ceeding, known as " a civil action." It did not affect, or undertake to affect, the composition of a right of action — the investitive and culpatory facts that give rise to the remedial right ; for it is the province of the substantive law, and not of the law of procedure, to determine what facts shall con- fer a primary right, and what facts shall amount to an in- vasion thereof, and authorize an action. In the great variety of causes that may arise, there must be a great diversity of facts and groups of facts constituting a right of action or a defense ; and these diversified facts require correspondingly diversified statements thereof. The reformed system simply adapts the procedure to these inherent differences in the operative facts of cases, instead of adapting the facts to a rigidly formal procedure, as was habitually done at common law. A plain statement of the operative facts relied upon is the most effectual means of advising the adversary party and the court ; it makes full disclosure and precludes the party from changing the ground of his claim ; and it rests upon, and de- mands an application of, the principles of substantive Jaw, • Ante, 112. 143 REFORMED PROCEDURE. §163 instead of the forms of procedure. This single action of the modern procedure is readily adapted to the diversified forma of jural relations ; it recognizes substantial differences, and ignores formal differences ; and it enhances the certainty and the safety of procedure. 163. Combining Legal and Equitable Actions and De- fenses. — Under the former procedure, actions at law and suits in equity were entertained by separate courts ; a legal right of action and an equitable right of action could not be combined in one action ; and an equitable defense could be asserted only in an equitable action, and in a court of equity. A plaintiff having two distinct rights of action, one legal and the other equitable, both growing out of the same transaction, was compelled to pursue them in separate actions and in dif- ferent courts. For example, one holding a note secured by mortgage, and entitled to a judgment on the note and a de- cree of foreclosure on the mortgage, was driven to two actions to obtain these remedies — an action at law to obtain judg- ment on the note, and a suit in equity to foreclose the mort- gage. And a defendant having an equitable defense to an action at law was compelled to commence another action, in a court of equity, and there, upon giving bond, to enjoin the plaintiff in the action at law from proceeding therein until after the court of equity had passed upon his equitable de- fense. If, for example. A., having the legal title to land in the possession of B., sued B. in an action of ejectment to re- cover the possession of the land, B. could not plead, in that action, that he was in possession under purchase from A., that he had paid the purchase price and was entitled to a conveyance of the legal title from A. His equitable right was not recognized in a court of law, and could not be enforced therein to defeat a recovery. He was required to obtain, by an independent suit in chancery, a decree for specific performance of his contract with A. ; and having thus obtained the legal title, he could set it up in the action at law. Under the Reformed Procedure, which abolished the distinc- tion between actions at law and suits in equity, an equitable right may be set up to defeat recovery in an action brought g 164 HISTORY OF PLEADING. 144 to enforce a legal right. In the example just stated, the de- fendant may plead his equitable right, not only to defeat recovery by the plaintiff, but to obtain, at the same time, the affirmative relief of specific performance. The reformed procedure has abolished the distinctions be- tween actions at law and suits in equity, so far as the names and forms thereof are concerned, and has substituted one form of judicial procedure, known as a civil action ; and has pro- vided that a plaintiff having several rights of action against the same defendant may, subject to certain restrictions as to the union of causes of action in one complaint, pursue them all in one action. And under the new procedure a defend- ant may join in his answer as many grounds of defense, counter-claim, and set-off, as he may have, whether they are such as have heretofore been denominated legal, or equitable, or both. These provisions have neither abolished nor affected legal or equitable rights and reliefs ; the object has been to avoid circuity of action and multiplicity of suits, and to simplify, facilitate, and cheapen procedure. Legal and equitable rights and defenses remain as before ; the modes of asserting them are changed. 164. Several Issues in One Action. — The combination of legal and equitable demands and defenses, under the re- formed system, sometimes presents both legal and equitable issues in one action. It is the policy of the Reformed Pro- cedure to enable suitors to develop, in one action, as many consistent grounds, both for relief and for defense, as they may have, or claim to have. This is for the convenience and economy of litigants ; and to this end, the codes are liberal in their provisions for the joinder of demands and of defenses, and for the bringing in of parties. If A., holding the legal title to land, sue B. for trespass thereon, and if C, the equitable owner of the land, and the one under whom B. claims, be made a party, and ask that the action for trespass be enjoined and the legal title decreed to him, the contro- versy between A. and B. would be purely legal, while that between A. and C. would be purely equitable. Yet both these issues may be tried and determined in the one action. 145 REFORMED PROCEDURE. §165 The usual practice in such case is, to stay the issue as to the trespass, until the equitable issue has been determined ; for if that should be determined against the plaintiff, the whole case would be ended.^ The common law sought to avoid several issues in one action ; the new procedure seeks to settle all cognate ques- tions in one action, but to keep the several issues separate and distinct. A defendant may, subject to certain limita- tions, have affirmative relief against the plaintiff, or against a co-defendant. 165. Resume of Part Two. — The history of pleading is the history of a struggle to maintain an adequate procedure. Jurisprudence has grown with the growth of civilization. In its infancy, its methods were fixed and arbitrary ; in its ma- turity, reason and equity hold sway in modes of procedure.^ In the very earliest times, the only authoritative statement of right and wrong was a judicial sentence after the facts ; not one -presupposing a law that has been violated.^ In the infancy of judicial procedure, forms, the most artificial and arbitrary, are found ; and these were the very center of the substantive law. The notion that the law emanated from the judge's inspiration has not been more completely dissi- pated, than has been the idea that procedural forms embody the law. From generation to generation, reason and right have controlled, more and more, the modes of pro- cedure. The Civil-law Procedure, while it was cumbrous, and lacked the inspiration of scientific methods which permeate the more modern systems, had much of the true spirit of judi- cial procedure. The Common-law System was overlaid with erudition, and was crippled with refinements and technical restrictions. But considering its time and its origin, it was a wonderful achievement, and worthy of the encomiums that have been lavished upon it. Its chief distinguishing excellence is the complete separation of law and fact, not only in the plead- 1 Pom. Rem. 86 ; Maasie v. Strad- 2 pom. Rem. 7-9. ford, 17 O. S. 596. ^ Maine Ancient Law, 7. 10 g 166 HISTORY OF PLEADING. 146 ings, but in the trial. It formulated a system of general rules of statement and of construction that have not been excelled, and that can not be dispensed with. The Equity Jurisdiction was an enlarged view of rights and remedies, and its procedure was adapted to its wider range of remedial right ; but its pleadings became cumbersome and confused, and were wholly wanting in scientific method and in certainty and simplicity.^ The Reformed Procedure is at once scientific and simple. By its methods there is presented a plain and simple inquiry as to the rights and duties of parties litigant, as these arise from facts made operative by law. The judicial investiga- tion is not hampered by adherence to arbitrary forms and technical distinctions ; and the procedure is readily adjust- able to any violation of a legal right, however novel it may be. 166. Resume, Coiitinued. — The history of pleading, as it has been outlined, shows that the several systems of proced- ure do not together form one rational progressive order of development. Each system has its excellences, and each bears an impress of the stage of social and professional cult- ure of its time. Each shows improvement over preceding systems, and there is such connection as comes from the re- tention of what was of lasting value in others. The common-law procedure was made up at intervals and by piecemeal, without preconceived plan, and by resort to temporary expedients to meet the exigencies of occasion.^ The reformed system is a synthetical and philosophical sys- tem, complete in its entirety, and harmonious in its parts. The old procedure required an obsequious adherence to forms and precedents ; the new procedure requires a rational and discriminating application of principles. It has not affected legal rights and obligations, nor lias it dispensed with rules of statement ; it has substituted for a procedure that was dog- matic and formal, one that is rational and logical, and that is thereby better adapted to the administration of justice. The pleadings are, as to matter of substance, governed by the ' Ante, 148. « Walker's Am. Law. 504. 147 REFORMED PROCEDURE. §166 substantive law, defining rights and obligations ; and in matter of structure and interpretation, they are governed by rules of statement based upon the nature of rights and the logic of procedure. The true conception of pleading under the reformed system is, a brief and simple statement of operative facts, measured by the substantive law as to the requisite effect, and by the law of procedure as to the actual effect. Tlie crowning excellence of the Reformed Proced- ure is, not that it has discarded forms and abolished fictions, not that it has condensed external methods into a single civil action, not that it has joined legal and equitable demands and defenses, but that it has, when rightly understood, brought pleading into harmony with the true nature and theory of legal right and obligation ; it has made form subservient to substance, and has subordinated the statement to the thing stated. This distinguishing feature of Code Pleading, out- lined in Part I., will be apparent in the study of its formal parts, its rules of statement, and the application of principles, hereinafter treated of.^ ' This chapter is brief, because the subject will be elaborated throughout the remainder of the work. I will here venture to add, however, some words of commen- dation from two of the most distin- guished jurists of these times — the late David Dudley Field, of New York, and Lord Coleridge, the Chief Justice of England. In 1893, Mr, Field prepared, by request, a paper for the Columbian Exposition at Chicago, in which lie said that codes of civil procedure, or what sire such in substance, have been adopted "in twenty-eight Ameri- can States and Territories — New York, Missouri, Wisconsin, Cali- fornia, Kentucky, Ohio, Iowa, Kansas, Nevada, North Dakota, South Dakota, Oregon, Idaho, Montana, Minnesota, Nebraska, Arizona, Arkansas, North Carolina, South Caxolina, Wyoming, Wash- ington, Connecticut, Indiana, Colo- rado, Georgia, Utah, and Maine. The example was contagious, even so far as across the sea ; and in 1873 the Parliament of England took up the subject, and adopted the Judi- cature Act, by which the forms of action were abolished and law and equity fused together. This act extended to Ireland, and has been followed in the English colonies of Victoria, Queensland, South Aus- tralia, Western Australia, Tas- mania, New Zealand, Jamaica, St. Vincent, the Leeward Islands, British Honduras, Cambia, Gren- ada, Nova Scotia, Newfoundland, Ontario, and British Columbia." In 1883, Lord Coleridge, at the re- ception tendered him by the Bar Association of New York City, in replying to the address of welcome, took occasion to say: "You are probably aware that we in England §166 HISTORY OF PLEADING. 148 have been engaged for the last ten years, beginning in 1873, when as attorney-general I was responsible for passing the Judicature Act through the House of Commons, in endeavoring to cheapen and sim- plify and expedite our procedure upon the lines of those salutary statutes which the wisdom of Parliament enacted about thirty years ago (in 1852 to 1854). It was high time that something was done to expedite and amend and simplify the common law. It had become associated in the minds of many men with narrow technicality and substantial injustice. Tliat was not the fault of the common law, but it was the fault, if fault it were, of the system of pleading, which, looked at practically, was a small part of the common law, but very powerful men had contrived to make it appear that it was al- most the whole of it, — that the science of statement was far more important than the substance of the right, and that rights of liti- gants themselves were compara- tively unimportant unless they illustrated some obscure, interest- ing, and subtle point of the science of stating those rights. But it is really a great pleasure for me to find that slowly, and if I may say so, with wise hesitancy, you are gradually admitting into your sys- tem those changes which we have lately made, as and when they satisfy the needs, the temper, and the genius of your people." The learned Chief Justice seemed for the moment to forget that America had led the way in this reform. OUTLINE OF CODE PLEADING. I. EEGULAR PARTS OF PLEADING. 1. Complaint.- 1. Title. 2. Statement. 3. Relief. 4. Verification. ' 1. Denials. 2. Answer.- 2. New Matter. 3. Reply. 1. Denials. 2. New Matter. ib. a. GreneraL Special, a. Dilatory, j To Jurisdiction, ( In Abatement. b. In Bar. c. Affirmative Relief . In Excuse. In Discharge. Counter- claim. Set-off. Cross-com- plaint ib. a. GeneraL SpeciaL n. IRREGULAR PARTS OF PLEADING. 1. Motions. 2. Demurrers r 1. To Strike from Files. - 2. To make Definite. 3. To Separately State and Number. 4. To Strike Out Redundant Matter. ■\l: Special. 1. Of Right. 3. Amendments, -j 2. By Leave Obtained. . 3. Supplemental Pleadings. 149 • PART III ORDERLY PARTS OF PLEADING. SUBDIVISION 1. THE REGULAR PARTS OF PLEADING. 167. Scope and Divisions of This Part. — Having set forth, in Part I., the philosophy of pleading under the Re- formed Procedure; and having, in Part II., presented the essential principles and the historical development of tlie older systems of procedure, and an outline of the new system ; we come now, according to the order of treatment proposed, to the orderly parts of pleading under the Re- formed Procedure. These formal parts of pleading are but the framework of the system ; they are its mechanism, adapted for use in the practical application of principles. For convenience and perspicuity of treatment, these formal parts of pleading will be considered under two general divisions or groups — the regular, and the irregular parts. Each of the several pleadings will be herein separately de- scribed, and such matters as pertain only to the use of the particular pleading under consideration will be stated, leav- ing those rules applicable to the pleadings in general to be stated in Part IV. ,.y, ->^i;: 168. Regular Parts of Pleading. — The pleadings where- by an issue in fact is to be regularly evolved are, the com- plaint,^ the answer, and the reply. The complaint, which is the first pleading on the part of the plaintiff, must contain a plain statement of the operativ e facts which constitute his right of action, anj j a demand of the relief sought. The 'T have used "complaint" in term used in most of the states, and preference to "petition," found in because it seems to be etymologi- some of the codes, because it is the cally preferable. 150 151 THE REGULAR PARTS OF PLEADING. S; 168 answer of the defendant may deny the allegations of the complaint, or may allege any new facts that are defensive. When the answer states new matter, the plaintiff may, by reply, deny such statement of new matter, or allege new facts in avoidance thereof. New matter in the reply is to be deemed controverted by the defendant, without further pleading-. Tliese are the only pleadings of fact, and when sufficient in substance, and proper in form, they will always present a material issue in fact. As these pleadings are incident to every suit, and regularly occur in the ordinary course thereof, they may properly be termed the regular parts of pleading. ( i^/Uuu^^l UM^j^^^^^^ ;Mi^-^ c P{!^^ /ui^UuLu^U^ t^.^^ y ^A^/^-^<-.^ \\A*\C\A^ I— -Co-^****'***-^ CHAPTER XVI. IHE COMPLAINT. , t» 7 ' 169. Its Formal Parts. — The complaint must contain, (1) the title of the cause, including the name of the court and of the county in which the action is brought, and the names of the parties ; (2) a statement of the facts constitut- ing the right of action ; and (3) a demand of the relief to which the plaintiff supposes himself entitled. To these may be added, what is really not a part of the pleading, a verifi- cation on oath. I. OF THE TITLE. 4« 170. The Court and the County. — The title must con- tain the name of the court and of the county in which the action is brought. At common law, the declaration was required to state the county in which the matter complained of arose ; formerly, as a guide to the sheriff in summoning the jury; and afterward, to designate the place for trial. The naming of the court and county, required by the Reformed Procedure, has no such effect as the laying of venue at com- mon law. The object is, to identify the pleading with the action and the court. In New York, however, where some actions may be brought in one county and tried in another, the title must, in such actions, specify both the county where the action is brought and that in which it is to be tried. An omission of the name of the court in a complaint is a formal defect, that may be corrected on motion in the trial court ; and if not so corrected there, it can not be urged in a court of errors.^ 171. The Names of the Parties. — The title must con- tain the names of the parties to the action, and should desig- 1 McLeran v. Morgan, 27 Ark. 148. 152 THE COMPLAINT. §171 nate them as plaintiff and as defendant. This requirement is '- for tlie purpose of identifying tlie persons; and the rules- following will show with what degree of certainty the par- ] ties to an action are to be designated. j I They should be designated by their true names, and both^p / the Christian name and the surname should be given. If one ^^ ' is known by different names, either may be used, or he may be sued with an alia$ dictus ; as, " John Jones, alias John Brown." One whose name is unknown may, generally, be sued by a fictitious name and a description of the person, stating the reason, and amending the complaint before judg- ment, by inserting his true name.^ A defendant sued by a fictitious name is a party to the action from its commence- ^ ' ment, and the amendment of the complaint by inserting the ^u true name does not change the cause of action .^ V \ In actions by or against partners, each person should be t^ '^ ^ named in the title, except when, by favor of a statute, the ?" suit is by or against them in the firm name ; and in such case, the complaint must, by proper averments, bring the partnership clearly within the purview of the enabling statute.^ A corporation, on the other hand, can sue or be sued only in its corporate name, which must be stated in the title. If one sue or be sued in an official or representative capacity, he should be so designated in the title. Thus, " A. B., as , administrator of the estate of C. D., deceased, plaintiff, against E. F., as executor of the will of G. H., deceased, de- fendant." The word " as " should not be omitted. It is true that " A. B., administrator," etc., may sufficiently identify the person ; but it is merely descriptio personce, and not a designation of the capacity in which A. B. is a party to the action.^ Where a defendant is designated as " A. B., mayor," etc., omitting the word " as " between the name and the official designation, and where the scope and averments of the complaint harmonize with the omission, the addition of the official title is mere descriptio personce, and the action 1 Earle v. Scott, 50 How. Pr. 506 ; ^ Haskins v. Alcott, 13 O. S. 210. Gardner v. Kraft, 53 How. Pr. 499 ; * Sheldon v. Hoy, 11 How. Pr. 11 ; Rozencrantz v. Rogers. 40 Cal. 489. Bennett v. Whitney, 94 N. Y. 303. » Faxris v. Merritt, 63 Cal. 118. ^^^ J^ta^lL. 1^ -/ TC UU] ttU- J>J<>c*^ t^^*^^ ^^^-^ §172 ORDERLY PARTS OF PLEADING. 154 is against the defendant as an individual.^ But where the body of the complaint plainly discloses an official or repre- sentative capacity as the ground of the action, the omission of the word " as " is not conclusive.^ Where an infant sues by his guardian, or by his next friend, the infant is the real party, and should be so desig- nated in the title. Thus, " A. B., an infant, by E. F., his next friend." ^ 172. Use of Initial Letters and Abbreviations. — The initial letter of a name is not a legal name, and should not be used to designate a party ; * but a single letter, whether vowel or consonant, may be the Christian name of a person, and unless the contrary appear, it will, when standing alone, generally be so regarded by the court.^ As a rule, the law recognizes but one Christain name, and the initial letter of a middle name may generally be treated as surplusage, and a mistake therein disregarded.^ A party may be designated by any known and accepted abbreviation of his Christian name, and the court will take notice of what such abbreviation stands for ; as, " Jas." for James ; " Christ." for Christopher ; " Wm." for William ; " Jno." for John.'^ The words " junior " and " senior " added to a name are mere description, and not part of the name, and need not be proved as alleged.^ If father and son have the same name, the former is, in the absence of proof, presumed 1 Bennett v. Whitney, 94 N. Y. ' Stephen v. State, 11 Ga. 225, 303 ; Gould v. Glass, 19 Barb. 179. 240 ; Weaver v. McEIhenon, 13 Mo. » Beers v. Shannon, 73 N. Y. 292 ; 89 ; Kemp v. McCormick, 1 Mon. Bennett v. Whitney, 94 N. Y. 302. Ty. 420 ; Studstill v. State. 7 Ga. 2. 3 Vincent v. Starks, 45 Wis. 458 ; « Coit v. Starkweather, 8 Conn. Whittem v. State, 36 Ind. 196; 293; Cobb v. Lucas, 15 Pick. 7; Bowie V. Minter, 2 Ala. 406 ; Jack Kincaid v. Howe, 10 Mass. 203, 205 ; V. Davis, 29 Ga. 219 ; Williams v. Neil v. Dillon, 3 Mo. 59 ; Headley Ritchey, 3 Dillon, 406. v. Shaw, 39 ni. 354 ; Allen v. State, * Herf V. Shulze, 10 Ohio, 263. 52 Ind. 486 ; People v. Cook, 14 5 Tweedy v.Jarvis.27 Conn. 42.45. Barb. 259; People v. Collins, 7 * Franklin v. Talmat^e, 5 Johns. Johns. 549 ; Fleet v. Youngs, 11 84; Choen v. State. 52 Ind. 347; Wend. 522; Prentiss v. Blake, 34 State V. Martin. 10 Mo. 391 ; Smith Vt. 460 ; Brainard v. Stilphim. 6 V. Ross, 7 Mo. 463 ; Isaacs v. Wiley, Vt. 9 ; Blake v. Tucker, 12 Vt. 39. 12 Vt. 674. 155 THE COMPLAINT. § 173 to be intended;^ but the real intent may be proved aliunde. 173. Misspelling — Idem Sonans. — In very early times, when the judicial altercation was oral, and a minute of the allegations was made in writing, by an officer of the court, it sometimes happened that the officer misspelled the names of the parties. But if the name so written sounded like the name so spoken, it was held to be sufficient. This rule, of idem sonans as it is called, still obtains. Under this it has been held that Mars is idem sonay^s with Marres;^ McDon- nell with McDonald ; ^ Beckwith with Beckworth ; ^ John- son with Johnston;^ Louis with Lewis ;^ McGloflin with McLaughlin ; ''' and Erwin with Irvin.^ Resort to this rule is often necessary in spelling the names of foreigners. Whether one name is idem sonans with another is not a question of orthography, but of pronunciation ; and when it arises in evidence on the general issue, it is for the jury, and not for the court.^ A party who is misnamed in a written obligation may sue or be sued thereon in his true name, adding an explanatory statement ; ^^ though some authorities hold that where a de- fendant has himself signed a wrong name to the instrument sued on, he should be sued in such name, and if he pleads the misnomer, the facts may be stated in the reply. ^^ If one is sued by a wrong name,^ or by his Christian name alone, ^^ is served with process, and does not plead the misnomer, judgment will bind him. Matter in abatement, if there be actual notice to the defendant, is waived if not pleaded.^* ' Brown v. Benight, 3 Blackf. 39 ; "• Society v. Varick, 13 Johns. 38 ; Bate V. Burr, 4 Harr. (Del.) 130. Loving v. State, 9 Tex. App. 471 ; « Com. V. Stone, 103 Mass. 421. Ansley v. Green, 82 Ga. 184 ; Pinc- 3 McDonald v. People, 47 111. 533. kard v. Milwine, 76 111. 453. < Stewart v. State, 4 Blackf. 171. " Wooster v. Lyons, 5 Blackf. GO; 5 Bank v. Kuhnle, 50 Kan. 420 ; Gould PI. v. 77. 31 Pac. Rep. 1057. "> Guinard v. Heysinger. 15 111. « Girons v. State, 29 Ind. 93. 288 ; State v. Tel. Co., 36 O. S. 296; ' McLaughlin v. State, 52 Ind. Ry. Co. v. Burress, 82 Ind. 83. 476. "3 Hammond v. People, 32 111. 8 Williams v. Hitzie, 83 Ind. 303. 446. » Com. V. Mehan, 11 Gray, 321 ; '■» Hammond v. People, 32 111. C!om. V. Donovan, 13 Allen, 571. 446. g^ 174-175 ORDERLY PARTS OF PLEADING. 156 174. Consequences of Misnomer. — At common law, misnomer, whether of plaintiff or defendant, was ground for plea in abatement.^ Under the Reformed Procedure, the practice is not uniform as to the way in which misnomer is to be taken advantage of. In most jurisdictions, it may be done only by answer ;2 while in some it may be done by motion. Upon principle, an answer setting out the mistake and giving the true name is the right method, for this is the proper way to bring new matter upon the record ; and both the averment of mistake, and the disclosure of the true name, are new matter. A demurrer will not lie for misnomer, for new matter can not be brought upon the record by demurrer.^ But where a complaint on a written obligation shows that the name of the obligor is not that of the defendant, and there is no alle- gation of identity, a demurrer will lie, not for misnomer, but because such complaint does not show a right of action against the person sued. A mere misnomer is a formal error that may generally be cured by amendment, and is always waived by answering to the merits. But where one is sued by a name entirely differ- ent from his true name, that is not idem sonans therewith, and that is not allegfed to be a fictitious name used in iafnor- ance of the true name, he is not bound to appear ; and unless he does appear, it would seem that no amendment can be made, for want of jurisdiction of the right party. Where, by a mere clerical error, a wrong name is written in a pleading, and it is obvious from the pleading itself wliat name was intended, the mistake is immaterial ; for if a party is misled by such mistake, it must be by his own careless- ness.* Such mere mistake is not ground for demurrer, and may at any time be corrected on motion, or upon leave ob- tained ; and this is generally allowed to be done by erasure and interlineation. 175. Title as Part of Complaint. — The requirement that 1 Steph. PL 284 ; Gould PI. v. 69, » siocum v. McBride,"t7 Ohio, 607. 78. * Fears v. Albea, 69 Tex. 437 ; 5 ' Thompson v. Elliott, 5 Mo. 118; Am. St. Rep. 79. State V. Tel. Co., 36 0.~S. 296. 157 THE COMPLAINT. §§170-177 the complaint shall contain the names of court and count}', and the names of parties plaintiff and defendant, makes the title a part of the complaint. For this reason, the title is to be regarded in construing the complaint ; ^ and for the same reason, the parties may generally be referred to in the body of the complaint as " the plaintiff," and " the defendant," without again naming them,^ or only the surname may be used ; and, generally, a defect or omission in the title, if the defective or omitted matter be correctly set out in the state- ment, will not make the pleading demurrable, though it may subject it to a motion. ^ It may here be stated that natural persons are presumed to have capacity to sue and to be sued ; and where a part}"- is designated by an individual name, and there is nothing to indicate want of capacity, no statement of capacity need be made, either in the title or in the body of the complaint.* And parties will be presumed to be citizens of the state, unless the contrary appear.^ 176. Complaint to be Further Entitled. — The codes generally provide that the names of court,, county, and parties shall be followed by the word " Complaint," or " Petition." This part of the caption is purely formal. Its omission is to be reached by motion to strike from the files, and may be supplied by amendment, without delay .^ There is generally no such requirement as to the subsequent pleadings, though it is good practice to properly entitle all pleadings. II. OF THE STATEMENT. (1) THE MATTER TO BE STATED. 177. Capacity of Parties.— It must appear from the 1 King V. Bell, 13 Neb. 409 ; Mc- Blackwellv. Montgomery,! Handy, Closkey v. Strickland, 7 Iowa, 259. 40. 2 King V. Bell, 13 Neb. 409; ^ Gould PL iii. 194; Prince v. Lowry v. Button, 28 Ind. 473 ; Mc- Towns, 83 Fed. Rep. 161. Leran v. Morgan, 27 Ark. 148. Cf. ' Bronson, J., in Lester v. Wright, Cosby V. Powers, 137 Ind. 694. 2 Hill, 320. ' Ammerman v. Crosby, 26 Ind. « Butcher v. Bank, 2 Kan. 70 ; 451 ; State V. Patton, 42 Mo. 530; Blackwellv. Montgomery,! Handy, 40. § 177 ORDERLY PARTS OF PLEADING. 158 complaint, either by averment or by legal presumption dis- pensing with such averment, that the parties to the action are capable in law of sustaining the jural relation on which the action is founded, and of suing and being sued in regard thereto. If they are natural persons, and their names are correctly given in the title, their existence, and their capac- ity as individuals, will be presumed, and no statement in this regard is needed.^ If either party stands in a represent- ative capacity, is an artificial person, or is an association of persons, qualifying statements are called for, in addition to the designation contained in the title ; for the title is not the place for allegations, and any designation therein will not supply the want of allegations to show capacity of parties.^ On the other hand, if the designation in the title show the incapacity of a party, as that he is an infant, and the body of the complaint contain no averment showing such in- capacity, the legal capacity of such party will be assumed, notwithstanding the designation in the title.'^ Where either party is the personal representative of a deceased person, the facts which clothe him with represent- ative power should be stated, and stated issuably. If one sue as administrator, he should, in addition to describing him- self in the title " as administrator," allege the death of the intestate, that on a day named a court of competent jurisdic- tion granted to him letters of administration, and that he qualified and is acting.* Thus ; "On the day of , letters of administration on the estate of A. B., theretofore deceased intestate, were, by the Probate Court of County, Ohio, duly issued to the plaintiff, who thereupon duly qualified and entered upon the duties of said office." The mere allegation that a party was " duly appointed," or that he " is administrator," has sometimes been held sufficient on demurrer, or as against a denial ; ^ but such allegation is 1 Prince v. Towns, 33 Fed. Rep. ^ Funk v. Davis, 103 Ind. 281 ; 2 161 ; Maxedon v. State, 24 Ind. 370. N. E. Rep. 739. « Toimie v. Dean, 1 Wash. Ter. * Beach v. King, 17 Wend. 197 ; N. S. 46, 50 ; Gould v. Glass. 19 Sheldon v. Hoy, 11 How. Pr. 11. Barb. 179. ' Gutridge v. Vanatta. 27 O. S. 366 ; Meara's Adm. v. Holbrook, 20 259 THE COMPLAINT. §178 faulty, and amenable to motion to make definite. Where one sues or is sued in any representative capacity, — such as executor, guardian, trustee, receiver, assignee in insolvency, — the extrinsic facts conferring such power should be stated, so that it may appear to the court, as matter of fact, that he sustains such relation ; and these facts should be stated witli such fullness and certainty that they may be traversed, because they are material and traversable facts. ^ 178. Capacity of Parties — Corporations. — A corpora- tion transacts its business, and is known to the world, by its corporate name ; and by such name it must sue and be sued. When a corporation is party to an action, its corporate exist- ence must be made to appear ; that is, it must appear that the name used stands for something that has legal existence and capacity. If the corporation be a domestic municipal corporation created by a public act, or a domestic private corporation created by a public law, the courts will take judicial notice of its existence and powers, and for this reason no allegation thereof is necessary .^ This is because all courts take judicial cognizance of the public laws of their own state. As to other corporations there is sucli diversity of holdings and enactments that no general rule can be formulated ; and to give the rules in the different states, with such particularity as to give practical guidance, Avould be beyond the purpose and the compass of this work.^ In some states, as at common law, no averment of corporate existence is required ; in others, an averment that the party is a corporation, organized under the laws of a given state, is sufficient ; while in others, the facts which give the corpora- tion legal existence are required to be stated. In some juris- dictions, failure to make the requisite allegations is to be taken advantage of by demurrer ; in others, by motion. In O. S. 146 ; Schrock v. Cleveland, 260, 408, 408a ; Abb. PI. Brief. 203- 29 O. S. 499 ; Bird v. Cotton, 57 Mo. 206 ; Abb. Tr. Ev. 18, 19 ; Pom 568. Cf. Trustees, etc. v. Odlin, 8 Rem. 208, note ; Moraw. on Corp. O. S. 293. 772 ; 2 Beach on Corp. 862 ; Ang. ^ Sheldon v. Hoy, 11 How. Pr. 11. and Ames on Corp. 632 ; 4 Am. and » Post, 341. Eng. Encyc. 284 ; 14 Am. Dec. 536; « Boone PI. 31, 138 ; Bliss PI. 246- 16 Id. TC5 ; 76 Id. 68 ; 78 Id. 769. §179 ORDERLY PARTS OF PLEADING. 160 common-law pleading, a corporation may declare in its corporate name, without averring corporate existence ; and its corporate existence is put in issue by the general issue. In some states, corporate existence is put in issue by general denial, while in some a special plea is required. Upon principle, it would seem that corporate existence sliould be alleged. A corporation is an artificial person ; and its capacity to sue and be sued results from its corporate existence ; the mere name furnishes no presumption of corporate existence or of legal capacity; and in no way but by averment can its existence and its capacity be made to appear to the court whose action is invoked for or against it. 179. Corporate Capacity, Continued. — Incorporation is a fact — an ultimate fact, the fact to be pleaded. It is true that corporate existence involves, (1) a grant of corporate franchises by the government, generally by legislative sanc- tion, (2) an acceptance of such grant by persons associated for that purpose, and (3) regularity of origin, conforming to the legislative sanction. But there is a distinction between cases which involve the mere heing^ and those which involve the right to he. In ordinary actions by or against corpora- tions, whether upon contract or for wrongs committed, where the fact of corporate existence is mere matter of inducement, iihe regularity of the organization can not be inquired into, and it is sufficient if the party be shown to be a corporation de facto. In such cases, a general allegation that the party is a corporation duly organized under the laws of a given state should be sufficient ; ^ and such allegation is sustained by proof of existence under color of law, without proof of reo-ular organization in conformity to law.^ On the other hand, in actions which involve the right to be, and where the corporate existence is the gist of the action, fuller alle- gations and proof should be required.^ And where the powers and franchises granted to a corporation by one state, 1 Smith V. Sewing Machine Co., » Abb. Tr. Ev. 18-29. 26 O. S. 563. Cf. Lorillard v. Clyde, ^ Abb. Tr. Ev. 18 et seq. ; Bliss 86 N. y. 384. PI. 311. 161 THE COMPLAINT. § 180 or any right claimed under them, becomes the foundation of an action in another state, such powers and franchises must be specially pleaded.^ The weight of authority is to the effect that where an instrument by its terms recognizes the representative capacity, or the corporate existence, of any party to it, no qualifying averments as to such part}'' are necessary in a complaint thereon. But as the decisions are not uniform as to the application of this rule, or as to the grounds upon which it should rest, the careful pleader will not omit such averments where they would otherwise be called for. 180. Capacity of Parties — Partnerships. — It has been seen that in actions by or against partners, as such, the names of the persons composing the firm should be set forth in the title.^ In addition to this, the fact of partnership should be alleged in the statement. Partnership demands and liabilities being joint, such allegation is necessary to authorize the joinder of parties. And where either party to an instrument is a partnerehip, designated therein by its firm name, a complaint thereon, joining the individuals as parties, should allege the partnership ; for otherwise, the instrument would not, as evidence, support the complaint.^ And this is so, whether the instrument be pleaded by its legal effect, or by copy. If the names of the persons composing the firm are given in full in the title, as they should be, it is not necessary to repeat them in the allegation that they are partners ; it is sufficient to allege only that the plaintiffs, or defendants, are partners.* In actions under favor of a statute authorizing certain partnerships to sue and be sued by their firm names, without disclosing the names of the several partners, the firm so designated must, by allegations, be brought clearly within the statute ; otherwise, it would not appear that the words used stood for anything capable of sustaining the relation of ' Devoss V. Gray, 23 O. S. 159. * Adams Exp. Co. v. Harris, 120 « Ante, 171. Ind. 73 ; 16 Am. St. Rep. 315 ; • Neteler v. Culies, 18 111. 188. King v. Bell, 13 Neb. 409. 11 §181 ORDERLY PARTS OF PLEADING, 162 party to an action, and the proceedings would lack that degree of certainty which is essential to judicial proced- ure.^ If it appear from the complaint that the plaintiff has not capacity to sue, the defendant may demur on that ground ; but if he pleads to the merits, he admits the plaintiff's capacity, and waives the apparent defect.* 181. Jurisdictional Facts. — It should appear from the complaint that the court selected by the plaintiff may legally entertain the action. The right and power of the court to entertain the action is called jurisdiction. There is an important distinction between courts of general jurisdiction and those of limited jurisdiction.^ In respect to the former, jurisdiction will be presumed, unless the want of it appear ; ^ but in respect to the latter, there is no such presumption, and their jurisdiction must be made to appear upon the record of their proceedings.^ And this is so as to all persons and tribunals exercising a special delegated authority. When jurisdiction is specially conferred by statute, whether in a court of general or of inferior jurisdiction, the complaint must show that the case is of the class provided for by the statute ; otherwise, the plaintiff, by not showing his right to resort to the statute for relief, fails to bring his case within the jurisdiction.^ If a statute authorizes proceedings in invitum, only after an effort and failure of the parties to agree, as in some cases to appropriate private property, the complaint must show such effort and failure.'^ The general rule is, that in courts of general jurisdiction, it is sufficient, except when the jurisdiction invoked is specially conferred by statute, if want of jurisdiction does not affirmatively ap- ' Haskins v. Alcott, 13 O. S. 210, Crane, 16 Vt. 246 ; Strughan v. 216. Inge, 5 Ind. 157. ' Meth. Ch. V, Wood, 5 Ohio, 283; « Edmiston v. Edmiston, 2 Ohio, Spence v. Ins. Co., 40 O. S. 517. 251. 3 Post, 374, 375. ■> Reitenbaugh v. Ry. Co., 21 Pa. ♦Weiderv. Overton, 47 Iowa, 538. St. 100; Ellis v. Ry. Co., 51 Mo. »Doll V. Feller, 16 Cal. 432; 200. Cf. Burt v. Brigham, 117 Schell V. Leland, 45 Mo. 289 ; Bank Mass. 307. V. Treat, 18 Me. 340; Barrett v. 263 THE COMPLAINT. § 182 pear ; and in courts of limited jurisdiction, the complaint must affirmatively show that the case falls within the juris- diction of the court whose action is invoked. But in all cases, and in all courts, where the right to exercise jurisdic- tion depends upon the existence of certain extrinsic facts, their existence must be alleged. In actions in their nature local, — such as for the recovery of real property, or the fore- closure of a mortgage, — the complaint should, as a rule, show that the subject of the action ^ is within the territorial juris- diction of the court. And where jurisdiction depends upon the value of specific property in controversy, its value should be alleged in the complaint. Where jurisdiction of a cause depends upon the citizenship of parties, as it does in some cases in the Federal Courts, the requisite fact should appear in the complaint. The absence of jurisdictional facts, when such are required to be alleged, renders a complaint demurrable. And when want of jurisdiction appears on the record, the court should, of its own motion, dismiss the action.^ It has been held that a defendant in an equity action can not avail him- self of the defense that an adequate remedy at law exists, unless he pleads that defense in his answer ; and where the facts alleged are sufficient to entitle plaintiff to relief in some form of action, and no objection has been made by de- fendant to the kind of action, either in his answer or on the trial, it is too late to raise the objection after judgment, or on .appeal.^ ..*''' 182. The Cause of Action. — Facts stated to show the capacity of the parties, when such qualifying facts are called for, and jurisdictional facts, when these are necessary, con- stitute no part of the cause of action. In addition to, and ' There is a distinction, not al- ment, the subject-matter, but not ways observed, between the subject- of the land, the subject of the action. •matter of an action — the nature of Post, 463. Cf. post, 330, 468. the riglit asserted, and the subject ' Metcalf v. Watertown, 128 U. of an action — the thing upon which S. 586. it is to operate. The one may be ^ Lough v. Outex'bridge, 143 N. within the jurisdiction, and the Y. 271 ; Mentz v. Cook, 108 N. Y. other without. A court may, for 504. example, have jurisdiction of eject- u 7 g 183 ORDERLY PARTS OF PLEADING. I64 independently of, such facts, the complaint must contain a statement of facts constituting a cause of action. The pro- vision of the codes as to this part of the complaint is, that it shall contain " a stateme nt of the facts constitut i ng the caus e of action, in ordinary and concise lang^uage." This limits the statement, (1) to facts, and (2) to such facts as con- stitute the right of the plaintiff and the delict of the defend- ant. It excludes, (1) facts that are only probatiye, (2) statements of the law, and (3) inferences and arguments. A right of action, as explained in a former chapter,^ is a re- medial right, arising out of a primary right in the plaintiff, a corresponding duty of the defendant, and a breach of this duty. This primary right and duty, and the defendant's violation thereof, are to be displayed in the complaint ; and this is to be done by stating, (1) such constitutive facts as, under the substantive law, operate to create such right and duty, and (2) such culpatory facts as sliow an invasion of the right, and a breach of the duty. Such statement shows a right of action in the plaintiff, against the defendant, and authorizes the interposition of the court, and hence constitutes and is a cause of action.^ Where the facts to be stated tend to indefiniteness and multiplicity, a general allegation is generally allowed.^ 183. When only Delict to he Stated. — There is a class of cases, however, in which it is not necessary to state the facts from which arise tlie primary right and duty. Actions for assault and battery, and for slander, are examples. The primary right in both these cases is the right of personal security — the uninterrupted enjoyment of the person, in the one case, and of the reputation in the other ; and the primary duty in the one case is, not to injure or annoy the person, and in the other, not to defame the reputation.* These are rights in rem, available to all persons, and against all per- sons ; they require for their assertion no facts but the exist- ence of the person of inherence ; and when natural persons 1 Ante, 29-32. » Eq. Ac. Ins. Co. v. Stout, 135 » Ante, 31. Ind. 444. * Ante, 19. 165 THE COMPLAINT. § 184 are named in a complaint, their existence is presumed.^ In all such actions, therefore, only the facts showing the delict need be alleged. But notwithstanding this abridgment of the complaint in such cases, it displa3'-s the same constituent elements — right and delict — that are required in other cases, and is not an exception to the general rule as to the requisites of a right of action.'^ > 184. Only Facts to be Stated. — It has been shown that a remedial right, or right of action, arises from both facts and law — facts made operative by law.^ Therefore, a complete statement of all the constitutive elements of a right of action would embrace, not only the operative facts, but the law that makes them operative. But for reasons heretofore stated,^ the law which enters into the remedial right must be excluded from the complaint, and only the opera tive facts stated . Any attempt to combine facts and law, to give the facts a legal coloring, is a violation of this fundamental principle of pleading. Violations of this rule generally occur, not in the state- ment of abstract rules of law, but in the blending of law and facts, or in the statement of legal conclusions drawn from facts not stated. An allegation that one is "heir" of another is a conclu- sion of law ; the facts should be stated, so that the legal rela- tion may appear to the court. An allegation that one is " indebted " to another, or that the defendant was " bound to repair," or that an act was " wrongful," or " unlawful," or that one " is entitled to " a thing, or that a certain injur}'- would be "irreparable" in damages, is a mere legal conclu- sion. Such allegations are insufficient on demurrer, and will not admit evidence to support them; they call for no respon- sive pleading, and are not admitted by failure to deny.^ This rule of exclusion does not apply, however, to private statutes, 1 Ante, 177. C/. Stafford v. The 'Post, 343 et seq., where the M. J. Assn., 142 N. Y. 598. rule excluding conclusions of law * Pom. Rem. 525. from all pleadings is fully illus- * Ante, 30. trated, and authorities cited. * Ante, 33. § 185 ORDERLY PARTS OF PLEADING. 166 or to foreign laws ; for these are regarded as facts, to be pleaded and proved.^ Where only the law, or a legal conclusion, is pleaded, the complaint, not stating /aci^s sufficient to constitute a cause of action, is demurrable. ' But where sufficient facts are stated, either separate from, or blended with, legal conclusions, the remedy is by motion. If the objectionable matter can be separated from the otlier averments, it may be stricken out ; otherwise, the motion should be to make definite. 185. Operative and Evidential Facts Distinguished.^ In the statement of a cause of action, not only must facts be stated, to the exclusion of the law and of legal conclusions ; but only operative facts, as distinguished from evidential facts, are to be stated. Tlie facts with which the administra- tion of justice is concerned are operative facts, and evidential facts. Operative facts are those to which the substantive law annexes consequences. They are the facts from which proceed rights and obligations and wrongs. They are the facts which enter into and create jural relations between persons. The legal rights and obligations of persons sustain- ing jural relations are such as the substantive law attaches to the facts which enter into and create those relations ; and these facts, because they operate under the law to create rights and obligations, are called operative facts. Operative facts are divided into three classes ; (1) such as operate to invest some one with a legal right, and are hence called investitive facts, (2) such as operate to divest some one of a legal right, and are hence called divestitive facts, and (3) such as work a wrongful interference with an existing legal or equitable right, and are hence called culpatory facts. Eviden- tial facts are such as in their nature tend to show that any of the operative facts aforesaid do, or do not, exist. In the statement of a cause of action, only the ultimate, operative facts of the transaction involved are to be stated ; because it is these, and these only, that give the plaintiff a right of action. The subordinate and intermediate facts, the probative matter of the transaction, should not be stated. ' Post, 340, 167 THE COMPLAINT. g 186 186. Operatiye and Evidential Facts — Illustrations. — The process of evaluating and differentiating the confused facts of a transaction, and separating the operative from the probative facts, is one that requires much care and discrim- ination. It is the first step in determining whether a right of action exists, and is an indispensable prerequisite to an intelligent statement of a cause of action. A familiar ex- ample will illustrate the distinction here made, and its prac- tical application. Suppose that KTsold and delivered to (*. a horse, for one hundred dollars, to be paid in thirty days ; that the thirty days have elapsed, and no part of the price has been paid ; that B. offered to sell the horse to C, and afterward sold him to D. ; that he told E. and F. that lie had bought the horse and had not paid for him ; and that he now denies the purchase. The jural relation between A. and B. is plainly that of creditor and debtor, and it is clear that A. has a right of action against B. It is equally clear that some of the facts stated are operative, and tliat others are evidential. That A. sold the horse to B., for the agreed price of one hundred dollars, to be paid in thirty days, and the lapse of this time, are operative facts. These are consti- tutive facts, showing a primary right in A. to receive one hundred dollars from B., and the corresponding duty of B. to make payment. That B. has not paid, is a culpatory fact, showing the delict of B. These operative facts entitle A. to an action against B. The other facts are evidential. The subsequent sale of tlie horse by B. was no part of his trans- action with A,, and in no way affected their jural relations. It is merely an act of B. that tends to show his understand- ing of his relation to the property ; and liis admission of purchase and non-payment boais the same relation to his transaction with A. In an action to recover damages for the breach of a written contract, an allegation that the defendant executed the con- tract is an operative fapt, material and issuable ; a right of action can not be asserted without it. But the facts that the defendant admitted the execution of the contract, that an- other saw him sign it, and tliat another will testify that the signature is his, are evidential facts, and do not enter into § 187 ORDERLY PARTS OF PLEADING. 168 the plaintiff's right. A denial of the operative fact will thwart the plaintiff's right, and present a material issue ; not so as to the evidential facts. If the operative fact be modi- fied, disproved, or abandoned, the right of action will dis- appear ; but the probative facts may be varied, or they may be abandoned and others resorted to, without affecting the remedial right.^ 187. Operative and Evidential Facts, Continued. — One distinction between operative facts and evidential facts is, that the former are issuable, while the latter are not. In the example of sale just given, a denial of any of the oper- ative facts, if sustained, would defeat the action of A. A denial that there was a sale, or that the credit had expired, would present a material issue ; and an allegation of pay- ment would be a good defense. But the fact of B.'s admis- sion might be denied, and the denial sustained, and yet A.'s right of action would not be affected thereby. In an action to restrain the execution of a tax deed, ou the ground that requisite preliminary proceedings had not been had, the plaintiff, instead of alleging that such proceedings were not had, averred only that he had searched in the proper offices, and failed to find any evidence that they were had. A traverse of this averment would present an entirely immaterial issue, to wit, whether he had searched and failed to find the evidence. ^ The fact here averred was a proba- tive fact, that might have been used in evidence to sustain an allegation of the ultimate, operative fact — the absence of specified requisite preliminary proceedings. If, in trover, the plaintiff alleges property in the goods, the loss, the finding, and a demand and refusal, omitting an allegation of conversion, the declaration is ill ; for the de- mand and refusal are only evidence of a conversion, which is the gist of the action.^ An allegation that A. and B. are partners is an allegation ' Pom. Rem. 526. The distinc- * Rogers v. Milwaukee, 13 Wis. tion between an ultimate fact and a 610. conclusion of law is well considered ' Gould PI. iii. 166. bySEARLS, C., in Levins V. Rovegno, 71 Cal. 273. jO'j THE COMPLAINT. §188 of the ultimate, operative fact. The facts showing the form- ation of a partnership are evidential facts, not to be pleaded.^ The use of one's name in connection with the business of a firm — as in advertisements, or over the door, or on cards — may be an evidential fact, or an operative fact, according to the circumstances. If the question is whether such person is in fact a partner, such use of his name is an evidential fact, in the nature of an admission ; but if the claim is, not that he is in fact a partner, but that he has by such means held himself out as a partner, and that such use of his name has misled somebody, it becomes an operative fact in the nature of an estoppel, and should be pleaded. An allegation of purely evidential matter in a complaint is surplusage ; it is not admitted by failure to deny, and may be stricken out on motion. 188. Legal and Equitable Causes of Action. — It is supposed by some that greater latitude is allowed in the statement of a cause for equitable relief, than in the state- ment of a cause for legal relief. It is true that in the early history of equity procedure the tendency was to permit a full and sometimes indiscriminate statement of facts, both operative and evidential, and not always excluding conclu- sions of law. This tendency was in part due to the double purpose of the bill in equity — the statement of a case for relief, and for the examination of the defendant under oath. But under tlie Reformed Procedure, the statement of a cause of action, whether legal or equitable, is limited to operative facts, to the exclusion of evidence and of law. In actions for equitable relief, however, the facts consti- tuting the cause of action may be more numerous, more com- plex, and more involved, than in an action for legal relief, and may therefore require a much more extended statement to display the right to relief. In legal causes of action, the primary right is generally plain and simple, calling for but a single act or forbearance, and the delict is generally of the same simple and single nature ; while in equitable causes of action, both these factors may be intricate and complex. « Ab. PI. Brief, 328 ; Post, 347. § 189 ORDERLY PARTS OF PLEADING. 170 The primary right may arise from a series of facts, and may demand from the defendant, not a single act, but a series of acts or omissions. Again, the relief obtainable in equitable actions, unlike the simple award of damages, or of possession of specific real or personal property, obtainable in legal actions, may be of the most varied and complex character, requiring a corre- spondingly full detail of facts and circumstances to show the nature and extent of the relief to which the plaintiff is en- titled. Such facts, essential to the relief, are but auxiliary to the right to be enforced. Notwithstanding this requirement of more extended detail of facts to display the full remedial right in actions for equitable relief, the fundamental principle, that only opera- tive facts — those showing the right, or affecting the remedy — are to be employed in stating a cause of action, obtains in equitable as well as in legal actions. 189. Collateral Facts to be Stated. — In the statement of a cause of action, only such facts as are legally operative should be stated. Sometimes, however, a particular act, or particular conduct, would be indifferent, but for the accom- panying circumstances or collateral facts. Such collateral facts, when necessary to give effect to the main charge, or to make other facts operative, should be stated. For ex- ample, in a complaint for deceit, or for keeping a vicious animal, scienter, being requisite to make the representation in the one case, and the keeping in the other, wrongful and actionable, must be averred. A statement that defendant ran his wagon against plaintiff's, does not show that the act complained of was culpatory and actionable. It may have been unavoidable accident. It should be alleged that he willfully or negligently did the act. It is a general rule, that where one complains of an act not wrongful per se, but which may be entirely consistent with good faith and fair dealing, he must state the collateral facts giving to it a dif- ferent character, and rendering it actionable.^ In an action on a foreign contract, valid by the lex loci contractus, but 1 Hughes V. Murdock, 45 La. Ann. 935 ; s. c. 13 So. Rep. 182. 171 THE COMPLAINT. § 190 invalid by the lex fori, both the place and the law of the place must be alleged. Performance of conditions precC' dent, and notice and demand, when necessary to create a lia- bility or a right to sue, must be alleged. When special damages — those in fact sustained, but not implied by law — are claimed, the facts out of which they arise must be stated.^ And facts in aggravation of damages, if not part of the act complained of, and if separable from the manner of doing such act, should be alleged.^ In an action for breach of promise of marriage, the seduction of plaintiff by means of the promise to marry can not be shown in evidence, to en- hance the damages, unless alleged in the complaint.^ 190. Collateral Facts, Continued. — In actions for equitable relief touching a legal right, on the ground that there is no adequate remedy at law, if such ground does not appear from the statement of the right and the delict, it should be specially averred ; otherwise, the complaint would be demurrable for want of equity. Thus, in an action to prevent destructive trespass, it should appear that the injury would be irreparable in damages. But a mere allegation that the damages would be irreparable would be a conclusion of law, and not sufficient. The facts showing the inade- quacy of a judgment at law should be stated ; for example, that the trespasser is insolvent, or that the property would be permanently ruined.* In actions for slander, wliere the words are not actionable per se, but are so by reason of some extrinsic fact, such extrinsic fact must be alleged. And where one is defamed generally in regard to his business or profession, the fact that he is engaged in such business or profession is an extrinsic fact, to be stated in his complaint. In actions in tort for breach of an implied duty arising out of contract, — as for negligence of a physician or of an attor- ' Post, 425 ; Wilcox v. McCoy, 562 ; Leavitt v. Cutler, 37 Wis. 21 O. S. 655; Barrage v, Melson, 48 46. Miss. 237. ^ Leavitt v. Cutler, 37 Wis. 46 ; « Schofield V. Ferrers, 46 Pa. St. Cates v. McKinney. 48 Ind, 562. 438 ; Cates v. McKinney, 48 Ind. " Bisph. Eq. 435-6 ; Bliss PI. 280, 281. § 191 ORDERLY PARTS OF PLEADING. 1Y2 ney, — the complainant should, in addition to alleging the contract, the negligence, and the injury, state the occupation of the defendant ; otherwise, it will not appear that the duty to exercise peculiar skill arose by implication from the contract.^ 191. Collateral Facts, Continued. — If facts ordinarily requisite be omitted from the complaint because dispensed with in the particular instance, the facts showing the reason for the omission should be stated. For example, where notice has not been given, or demand has not been made, because waived by the defendant, such waiver must be averred. But in such cases care should be taken not to anticipate or avoid what is properly matter of defense. When it appears from the statement of the cause of action that the action is subject to the bar of the statute of limita- tions, extrinsic facts that will save it from such bar, if such facts exist, should be averred in the complaint.^ But in some jurisdictions, where, by statutoiy provision, the statute of limitations can be made available only by answer, such extrinsic facts should not be averred in the complaint.^ Where the limitation is a part of the right itself^ the com- plaint should show that the action is brought within the prescribed time.* And in actions under a statute containing ' Bliss PI. 150. of the other. If we concede that a ' Bliss PI. 205 ; Combs v. Watson, statement of facts all of which are 32 0. S. 228. This rule, which is requisite to the statement of a cause established by an almost unbroken of action, and which is on its face line of authority, is, apparently, a amenable to the bar of the statute, departure from the true principles but which is not otherwise faulty, of pleading. The statutory bar is is demurrable on the ground that it matter of defense, and is a personal does not state facts snfficien t to con- privilege that may be asserted, and stitute a cause of action, we must, that is waived if not asserted. To by parity of reasoning, sanction the avoid it by averment, before it can introduction of extraneous facts to be known whether it will be as- supply the conceded defect. The serted, is, it would seem, toantici- prime error is in the concession, pate a defense. But in those juris- Post, 336. dictions where the statute is avail- * Butler v. Mason, 16 How. Pr. able on general demurrer, the rule 546. rests upon defensible ground ; or * Davis v. Hines, 6 O. S. 473, Per rather, the one rule is a vindication Brinkerhoff, J. 173 THE COMPLAINT. g 192 an exception, as distinguished from a proviso, the complaint should show that the case does not fall within the excep- tion.^ 192. Gist, Inducement, and Aggravation. — In common- law pleading, all matter to be pleaded is (1) of the gist of the complaint or defense, or (2) is matter of inducement, or (3) matter of aggravation. The gist of a complaint or de- fense is the essential ground or subject-matter of it — that without which no right of action could appear on the one hand, and no legal defense on the other. The defendant's promise in assumpsit, the conversion in trover, injury to the possession in trespass, are severally of the gist of the action ; so, also, where performance of a condition, the giving of notice, or the making of demand is essential to the right of action, averment thereof is of the gist of the compkiint. ' / Matter of inducement is that which is introductory to the essential ground of the complaint or defense, or which is nec- essary to explain or elucidate it. The loss and finding in trover is matter of inducement ; so, also, are allegations to show capacity of parties.^ .1^ f Matter of aggravation is that which tends to increase the amount of damages, but does not affect the right of action. In trespass for breaking and entering a house, an allegation that defendant expelled plaintiff and destroyed his goods is matter of aggravation ; the breaking and entering being the whole gist of the action.^ \ The practical importance of this classification at common law is in the fact that in pleading matter of inducement and matter of aggravation less particularity is required than in pleading matter of substance \ and matter of aggravation is never to be traversed. / It is sufficient, as matter of induce- ment, to allege that plaintiff is ^luly incorporated under the laws of a given state ;] but if corporate existence is of the gist of the action, the grant of the corporate franchise, its accept- ance, and regular organization thereunder, should be alleged.^ In trespass for chasing sheep, per quod the sheep died, the 1 Church V. Ry. Co., 6 Barb. 313; » Taylor v. Cole, 3 Term Rep. 292. Walker v. Johnson, 2 McLean, 92 ; Post, 339. § 193 ORDERLY PARTS OF PLEADING. 174 dying of the sheep, being aggravation only, is not travers- able. It is sometimes said that traverse is not to be taken on matter of inducement.^ But in many instances matter of in- ducement is in itself essential, and of the substance of the case ; in such instances at least, whatever the general rule, matter of inducement is traversable. (2) THE MANNER OF THE STATEMENT. 193. Ordinary and Concise Language. — The statement of facts constituting the cause of action is to be " in ordi- nary and concise language." This means that the statement should be neither ornate nor prolix, that the words employed should be those in common use, and that the manner of the statement should be brief and compendious. This require- ment aims at strength and perspicuity, rather than elegance of expression. Pompous diction would be out of place in a legal paper designed to lay before the court only operative facts, as a basis for judicial action. In the common-law pleadings, much attention was given to the form of the statement. The authorized forms were so prolix, the statement so verbose and involved, and the facts relied upon were so obscured, that very often the pleadings entirely failed to disclose the operative facts to be proved or disproved upon the trial. This requirement? of the reformed system aims to banish these technical forms from practice, and to substitute a statement so plain and concise that parties and court may readily see, and clearly understand, what facts are relied upon, and to what facts the further pro- ceedings are to be directed. But an error must here be guarded against. It must not be thought that " ordinary and concise language " is an in- different phrase, dispensing at once with all care and skill in framing the statement. On the contrary, a system of plead- ing that dispenses with authoritative forms, and requires each case to proceed upon a plain statement of its operative 1 Steph. PI. 294. 175 THE COMPLAINT. §§194-195 facts, intensifies the necessity for a clear underetanding of the hiw and the facts of a case, and for an intelligent and ac- cui-ate use of language by the pleader. Clearness of concep- tion and accui'acy of expression ai-e of the very essence of good pleading under the Reformed Procedure. lf)4. The Order of the Statement. — At common law, tlie pleadings were recjuired to observe the ancient and es- tablished forms of expression, and to conform to the approved precedents ; and the pleadings subsequent to the declaration had, severally, their proper formal commencements and con- clusions. ^ But under the reformed system, there is no pre- scribed form or order in which the facts constituting a cause of action are to be set forth. This is left to the judgment and intelligence of the pleader. Not because it is a matter of indifference, for it is not ; but because no form or order can be prescribed for displaying rights of aation tliat must, in the nature of things, be as diversified as are the jural re- lations from which they arise. It was a just reproach to the common-law procedure that it required great strictness in matters of form, and allowed much looseness in matters of substance. It is a distinguish- ing achievement of the Reformed Procedure that matter of form is made subservient to matter of substance. In the complaint, as in all the pleadings, controlling consideration is given to the substance of the statement, rather than to the mere form thereof ; and the instances are numerous in every jurisdiction, where mere matter of form is disregarded in the interest of justice and of economy to suitors. 195. Joinder of Causes of Action. — Where a plaintiff has- ^tito Jft several distinct rights of action against the sam e p erson , he 'f .^^ uq j. may pursue them in one action ; subject, however, to certain restrictions as to the union of separate causes of action in one complaint. The general rule to be gathered from the several statutory provisions, is, that several causes of action may be joined in the same complaint, when the several rights of action all arise out of (1) the same transaction, or transac- tions connected with the same subject of action ; or (2) con- ' Ante, 136. §196 ORDERLY PARTS OF PLEADING, 17^ tract, express or implied ; or (3) injuries, with or without force, to person and property, or to either; or (4) injuries to character ; or (5) claims to recover personal property, with or without damages for the withholding thereof ; or (6) claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same ; or (7) claims against a trustee, by virtue of a con- tract, or by operation of law. The causes of action so united must all belong to some »ne of these classes ; must not require different places of trial ; must affect all the parties to the action ; and must be separ- ately stated.! 196. Joinder of Causes — Same Transaction. — Two dif- ficulties, and only two, are likely to arise in the application of the foregoing provisions. The first is, the danger of con- founding the reliefs prayed for with the causes of action upon which they are based. This danger may be avoided by the exercise of care and discrimination, remembering that the prayer for relief, while a requisite of the complaint, is no part of the cause of action. The other difficulty likely to arise is in the joinder of causes of action upon rights that arise out of the same trans- action, or transactions connected with the same subject of action. This provision is broad and comprehensive. The term " transaction " has no technical meaning, and was prob- ably used in the codes for that reason ; the purpose being, to avoid a multiplicity of suits between the same parties. A cause of action is a statement of operative facts showing a right and a delict. When the operative facts of one trans- action create two or more primary rights in one party to the transaction, and also show violations thereof by the other party, then two or more rights of action have arisen out of such transaction, and separate causes of action thereon may be united in one complaint. Again, if several rights of action — several primary rights of plaintiff, and corresponding delicts of defendant — arise out of different transactions, several causes of action thereon may be joined in one complaint, if ' Pom. Rem. 438 ; Bliss PI. 112 ; Boone PL 37. 177 THE COMPLAINT. §§ 197-108 the several transactions are connected with the same subject of action. 197. Joinder of Causes — Same Subject of Action.— The meaning of "-subject of action " is not authoritatively settled. It does not mean the right of action, or the object of the ac- tion. It has been interpreted as synonymous with " subject- matter of the action." ^ But the subject-matter of an action^ especially when used with reference to jurisdiction, means the right asserted by the plaintiff, and upon which he demands the judgment of the court.^ It has been held to mean the primary right of plaintiff which has been invaded by tlie de- fendant.^ These definitions, which do not materially differ, would require the " subject of action " to be common to all the several causes of action to be joined ; while in fact it can not be common to the causes of action, but must be common to the several transactions out of which the several rights of action arise. The " subject of action " is one single thing, a unit ; the transactions connected therewith are plural ; and the rights of action arising therefrom may be various. Again, by "subject of action" can not be. meant the primary rights of plaintiff, for these are two degrees removed from each other by the intervention of the " transactions." The rights of action are product of the different transactions, and the different transactions must be connected with the subject of action. Perhaps no definite and invariable exposition of the meaning of these terms can be made, aside from their applica- tion in individual cases as they arise. 198. Joinder of Causes — Necessary Averments. — When causes are united because they arise out of the same transac- tion, or out of transactions connected with the same subject of action, if the facts showing such common origin, or such connection, do not appear in the narration of operative facts, they should be stated, in order that the right to join may appear. A mere allegation that the causes arose out of the same transaction is not sufiQcient.* ' Pom. Rem. 475. * Flynn v. Bailey, 50 Barb. 73 : 3 Post, 462. Woodbury v. Deloss, 65 Barb. 501. * Scarborough v. Smith, 18 Kan. 390. 12 J, 199 ORDERLY PARTS OF PLEADING. l^g 199. Joinder of Causes — Application of Rule. — Under these provisions for the joinder of several causes in one ac- tion, causes of action in their nature legal or equitable, or botli legal and equitabl e, may be joined j; and, contrary to the conimon-iaw rule, causes arising ex delicto may be joined with those arising ex contractu^ if they have a common origin in one transaction, or in transactions connected with the same subject of action. 1 Causes for malicious prosecution and for false imprisonment ; ^ for breach of contract and for personal injury ; ^ for slander and for malicious prosecution ; * for breach of express contract and for money had and received ; for trespass to person and to property ; ^ and for specific per- formance and for damages,^ are joinable. A claim for specific relief incidental or preliminary to the main object of the suit may be joined therewith, when arising out of the same transaction. Claims to set aside a convey- ance as fraudulent, to determine adverse claims to the prop- erty, and to recover possession, with rents and profits ; "^ claims for the recovery of real property, for rents and profits, and for partition ; ^ causes for injury from the overflow of a dam, and for injunction to restrain its maintenance ; ^ and causes to set aside a release of damages for injury, and for the recovery of the damages,^*^ may be joined in one action. The causes of action joined in one complaint must not be inconsistent with each other. This is a logical requirement, and one not generally expressed in the codes. A demand for an agreed price for work, and one for the reasonable value of the same work, are inconsistent ; ^^ though there is authority 1 Barr v. Shaw, 10 Hun, 580 ; « Worrall v. Munn, 38 N. Y. 137, Jones V. Cortes, 17 Gal. 487 ; Swan, 141. J., in Sturges v. Burton, 8 O. S. ' Pfister v. Dascey, 65 Gal. 403; 218. Bank v. Newton, 13 Col. 245. 2 Barr v. Shaw, 10 Hun, 580 ; ^ Scarborough v. Smith, 18 Kan. Krug V. Ward, 77 111. 603. 399. 3 Jones V. Cortes, 17 Cal. 487. » Akin v. Davis, 11 Kan. 580. < Shore v. Smith, 15 O. S. 173 ; i" Blair v. Ry. Co., 89 Mo. 383. Harris v. Avery, 5 Kan. 146. ^"^ Plummer v. Mold, 22 Minn. 15 ; ' Dillon, J., in Holmes v. Sheri- Hewitt v. Brown, 21 Minn. 163. dan, 1 Dillon, 351. 179 THE COMPLAINT. g2 00 for uniting such causes, where neither can safely be relied upon alone.^ 200. Joinder of Canses — Application of Rule, Con- tinued. — Causes of action, to be joinable, nmst each affect all the parties to the action. If, therefore, all the parties, plaintiff and defendant, are not affected by each cause of action, there is — except in foreclosure suits — misjoinder of causes, and de- murrer for this cause will lie. Separate claims by two plaintiffs, against one defendant, growing out of the same transaction, are not joinable.^ Nor may a wrong to a firm, and a wrong to one member thereof ; ^ or a claim against two defendants, and a claim against one of them,* be joined. Where the owner of a lot caused excavation to be made in and under the sidewalk in front of his lot, and plaintiff fell into the excavation and was injured, it was held that although the lot-owner and the city were both liable, they could not be joined.^ In such case, the liability of the city depends upon a state of facts not affecting the lot-owner; and the converse. They did not jointly conduce to the in- jury by acts either of omission or of commission. A claim against one for erecting a dam, and against his grantee for continuing it; ^ and claims against successive tenants for respectively maintaining the same nuisance,'^ are not join- able. Several owners of different animals can not be joined in one action for trespass by the animals.^ And causes of ' Wilson V. Smith, 61 Cal. 209 ; « Hines v. Jarrett, 26 S. C. 480. Post, 208. ' Green v. Nunnemacher, 86 Wis. ' Bort V. Yaw, 46 Iowa, 323. 50. ' Taylor v. Ry. Co., 53 Hun, 305. ^ Cogswell v. Murphy, 46 Iowa, ■* Doan V. Holly, 25 Mo. 357. 44. In such case, each owner is ' Trowbridge v. Forepaugh, 14 not liable for the aggregate tres- Minn. 133. Cf. Bateman v. St. Ry. pass, though done by all the ani- Co., 5 N. Y. Supp. 13, where it was mals together ; for, in legal con- held, by the Common Pleas of New templation, there is a separate York City, that in an action against trespass on the part of each. Van the city for injury caused by its Steenburgh v. Tobias, 17 Wend, neglect to keep the street in repair, 562; Auchmuty v. Ham, 1 Denio, and against the railway company 495 ; Partenheimer v. VanOrder, which had agreed with the muni- 20 Barb. 479. Where persons join cipality to keep it in repair, there in wrong doing, there is inten- was not a misjoinder of causes. tion and volition on tlie part of § 201 ORDERLY PARTS OF PLEADING. 180 action against principal and sureties, on two official bonds, one being an additional bond, both given for the same term of office, but with different sureties, can not be joined. ^ Where one is a party in two capacities, there is misjoinder, unless each cause of action affects him in both capacities. A personal claim or liability can not be joined with one in a rep- resentative capacity .2 Demands against a common guard- ian for maintenance of several wards can not be joined.^ A cause of action against an administrator on his promise as such administrator, and a cause against him on a promise of his intestate, may be joined, provided both causes require the same judgment.* There can not be two different judg- ments, one de bonis propriis and another de bonis testatoris, in one action ; and this is said to be a test in the matter of the joinder of causes.^ 201. Joinder of Causes— Consequences of Misjoinder. — When causes of action that are not properly joinable are it ^O L^ united in one complaint, the misjoinder, if apparent upon the face of the complaint, may be objected to by demurrer ; if not so apparent, the objection may be made by answer. If causes not joinable be not only joined in the same action, but combined in a single statement, instead of being separately stated, the defendant may nevertheless demur for the mis- joinder, though such complaint would also be amenable to a motion to require the causes therein to be separately stated ; ^ and for convenience and certainty it is the better practice first to have the confused allegations separated, so that the several causes may distinctly appear, and then to demur for each. Not so, where one's animals '■' Martens v. Loewenberg, 69 Mo. co-operate with those of another. 208 ; Brown v. Webber, 6 Cush. 560. In such case, each owner is Hable * Orphan Society v. Wolpert, 80 for the injury done by his own Ky. 86. animals, and for no more. Auch- * Howard v. Powers, 6 Ohio, 93. muty V. Ham, 1 Denio, 495. And * Per Tilghman, C. J., in Malin in the absence of proof, the law v. Bull, 13 Serg. & R. 441. will infer that the animals did « Wiles v. Suydam, 64 N. Y. 173 ; equal damage. Partenheimer v. Liedersdorf v. Bank, 50 Wis. 406 ; VanOrder, 20 Barb. 479. Wright v. Connor, 34 Iowa, 240 ; 1 Holeran v. School Dist., 10 Neb. Per Church, C. J., in Goldberg y 406. Utley, 60 N. Y. 427. 181 THE COMPLAINT. §202 the misjoinder. In such case, the motion goes to the infor- mality of the union, and the demurrer to the fact of the union. When a misjoinder is found, either upon demurrer or upon answer, the action may be divided and several complaints filed, making as many independent suits as should have been brouglit originally ; ^ or the plaintiff may be required to elect upon which cause of action he will proceed. Misjoinder, being a defect of form, and not of substance, is waived, if not objected to by demurrer or by answer.^ 202. Causes to be Separately Stated. — When two or more causes of action are joined in one complaint, they must be separately stated ; and in most states they are required to be consecutively numbered. The joinder of causes is not a requirement of pleading ; it is a privilege intended for the convenience and economy of suitors. But the separate state- ment of causes, when joined, is an imperative requirement. Each cause must not only be set forth in a separate and dis- tinct division of the complaint, but it must, of itself, be a complete and independent cause of action. These separate divisions are sometimes designated by the common-law term "count;" in a few states they are termed "paragraphs;'* but they are generally, and more properly, called "causes of action." Such separate statement of causes is clearly indispensable to an orderly system of pleading. In no other way can the legal sufficiency of any one cause be tested by demurrer ; in no other way can different defenses be made to the different causes ; in no other way can separate and distinct issues be made or tried ; in no other way can the introduction of evidence be intelligently conducted ; and in no other way can the record be made clearly to show what matters have been adjudicated, and how decided. The provision for the joinder of distinct demands in one action is for the conveni- ' Per Brewer, J,, in Houston v. 54 ; Berry v. Carter, 19 Kan. 135 ; Delahay, 14 Kan. 125. Jones v, Hughes, 16 WLs. 683 ; •^ McCarthy v. Garroghty, 10 O. Marius v. Bickwell, 10 Cal. 217. S. 438 ; Turner v. Althaus, 6 Neb. § 203 ORDERLY PARTS OF PLEADING. 182 ence and economy of litigants, and its object may be promoted by liberality in its application; but the requirement that causes of action, when joined, shall be separately stated, is to enhance the certainty, the precision, and the safety of pro- cedure, and its object can be promoted only by enforcing it with reasonable strictness. " To secure the simplicity and terseness exacted by the codes, it is essential that differ- ent causes of action be disassociated, and that reiteration be avoided." ^ 203. Adopting in One Cause, Statements in An- other. — Each separate statement must, of itself, be a com- plete cause of action. If the same allegation is a requisite of two or more of the separate statements, it must be inserted in each ; for an allegation in one can not be treated as suppljang an omission in another.^ But the maxim that words in one instrument may be incorporated in another by reference — verba relata inesse videntur — applies to the separate divisions of a pleading ; and statements in one cause of action may be incorporated in another, by apt words of ref- erence and adoption therein. ^ A single copy of an instru- ment may be referred to as an exhibit, in different causes of action, or in different defenses.* And an instrument set out in a complaint may, in this way, be made part of a cross- complaint.^ Where several causes of action are founded upon an instrument, a copy of which is required to be filed with the pleading, and but one copy is filed, each cause of action should refer to the copy as filed with that cause of action.^ Reference to allegations in a former cause of action by the phrase " as aforesaid," is sufficient, if the matter so 1 Per Collins, J., in West v. Freeland v. McCullough, 1 Den. Imp. Co., 40 Minn. 394. Cf. Gold- 414 ; Beckwith v. MoUohan, 2 W. berg V. Utley, 60 N. Y. 427. Va. 477. * Farris v. Jones, 112 Ind. 498 ; ■* Maxwell v. Brooks, 54 Ind. 98 ; Smith V. Little, 67 Ind. 549 ; Davis Hockstedler v. Hockstedler, 108 V. Robinson, 67 Iowa, 355 ; Catlin Ind. 506. V. Pedrick, 17 Wis. 88 ; Barlow v. * Coe v. Lindley, 32 Iowa, 437 ; Burns, 40 Cal. 351; Haskell v. Pattison v. Vaughan, 40 Ind. 253; Haskell, 54 Cal. 262 ; Boeckler v. Craigin v. Lovell, 88 N. Y. 258. Ry. Co., 10 Mo. App. 448. « Peck v. Hensley, 21 Ind. 344. 3 Dorr V. McKinney, 9 Allen, 359 ; l^-^ THE COMPLAINT. §§ 204-205 referred to is thereby plainly identified.^ So, the phrase " of and concerning the action tried as aforesaid," has been held a sufficient reference ; ^ so also, the phrase "on the day and year, and at the place last aforesaid." ^ 204. Certain Allegations Not to he Repeated. — Some statements of fact may be a requisite part of the complaint, bat not of the cause of action. Such are, facts to show the capacity of the parties, the character in which persons are made parties, or the jurisdiction of the court. All such matters may be stated but once, and need not be repeated in each separate cause of action.* Sometimes, however, — and the practice is in good taste, — such statements are grouped at the beginning of the complaint, and made part of each cause of action. Thus : " As a part of each cause of action herein, the plaintiff says : — " Here add the facts referred to, and follow these with the several causes of action, separately stated and numbered.^ The pra3'er for relief, being a requisite of the complaint, bill not of the cause of action, a single prayer, at the close of tlie complaint, is all that is required.^ It has been held that statements in a cause of action that has been abandoned may yet be considered in aid of others,''' when properly referred to therein. 205. Several Grounds for Single Relief. — In determin- ing whether there should be a single cause of action, or several, care must be taken not to confound the right of action and the relief to be obtained. The two guiding principles are, (1) that for each distinct right of action there must be a separate statement, or cause of action, and (2) 'that the prayer for relief, though part of the complaint, is no part of the cause of action. A single right of action may ' Beckwith v. MoUohan, 2 W. v. Robbins, 13 Mass. 284 ; Aben- Va. 477. droth v. Boardley, 27 Wis. 555. » Crookshank v. Gray, 20 Johns. ^ West v. Imp. Co., 40 Minn. 394. 344. «Larkin v. Taylor, 5 Kan." 433; 3Rathbun v. Emigh, 6 Wend. Spears v. Ward, 48 Ind. 541. 407. ' Jones v. Van Zandt, 5 McLean, < Bank V. City, 74 Mo. 104 ; West 214. V. Imp. Co., 40 Minn. 394 ; Rider §206 ORDERLY PARTS OF PLEADING. 184 entitle the plaintiff to several kinds of relief, and several rights of action may authorize but a single relief. One may have several distinct grounds of recovery, each complete of itself, arising out of the same transaction, and may be entitled to but one recovery thereon. In the sale of a horse, the vendor may make both a false warranty and a false representation, and thus become liable to the vendee for the deceit, and for the breach of warranty ; and the vendee would correspondingly have two grounds of recovery, but would be entitled to only one relief, in damages. The vendee in such case can maintain an action based upon either right of action alone, or, since both rights of action arise out of the same transaction, he may base his action upon both grounds, stating them in separate causes of ac- tion.^ One of these two rights of action would arise from tort, the other from contract. A cause of action, to display the one right, must assert the falsity and the materiality of the representation, reliance upon it, the scienter and the intent of the defendant, and that plaintiff was misled ; where- as, to display the other right, only the warranty and the breach are to be asserted.^ A complaint for horses killed by the defendant's train contained two causes of action ; one alleging neglect to keep a fence in repair as required by contract, and the other alleg- ing negligence in running the train. It was held, that there were two rights of action, — one for breach of contract, and the other for a tort, — and that the plaintiff should not be required to elect.^ Here were two independent culpatory acts, or delicts, and but one right — the right of property — invaded. 206. Duplicate Statement of One Right of Action. — At common law, it was familiar practice to set forth a single right of action in two or more counts, in different forms, in ' Pom. Rem. 467 ; Humphrey v. Sweet v. Ingerson, 12 How. Pr. Merriam, 37 Mimi. 503 ; Robinson 331. V. Flint, 7 Abb. Pr. 393; Murphy ' Bliss PL 120, 292; Pom. Rem. V. McGraw, 74 Mich. 318 ; Freer v. 467 ; Abb. PI. Br. 86 ; Williams v. Denton, 61 N. Y. 492. Cf. Spring- Lowe, 4 Neb. 882. steed V. Lawson, 14 Abb. Pr. 328 ; » Ry. Ck). v. Hedges, 41 O. S. 233. 135 THE COMPLAINT. §207 the same declaration. This was done in order that some one of the counts might correspond with, and be supported by, the evidence upon the trial, and in this way avoid a variance ; the rule being, that if the proof sustained the case laid in any one count there could be a recovery upon that count, though there should be a failure of proof as to all the other counts.^ In equity, when there was uncertainty as to the ground of recovery, it was the practice to accommodate the statement of the case to the possible state of the proof by an alterna- tive statement, in accordance with the facts of the claim.^ The needless multiplication of counts in common-law pleading had grown to be burdensome, and the Reformed Procedure undertook to correct this abuse, by requiring only the operative facts to be stated, as they actually occurred, and without unnecessary repetition. Under this new proced- ure, each separate statement is intended to set forth a dis- tinct and independent right of action ; and the rule is, that a plaintiff having but one right of action is not permitted to set it forth in two or more different forms.^ 207. Duplicate Statement, Continued. — The rule just stated is not an inflexible rule, and is sometimes made to yield to the demands of justice ; for it is a distinguishing merit of the Reformed Procedure, that it makes formal re- quirements subservient to the rights of parties and the ends of justice. The reformed system is a substitute for both com- mon-law pleading and equity pleading ; it has not taken away an}^ right ; it has affected only the manner of stating a right. A plaintiff may, in a complaint under the code, state any right of action, with demand of appropriate relief, that he might formerly state in a declaration at law, or in a bill in chancery. If a plaintiff has two distinct grounds for a single recovery, he may now, as before, make both grounds available in one action ; and so, if he has but a single right of action, resting 1 3 Bl. Com. 295 ; Gould PI. iv. ^ Sturgess v. Burton, 8 O. S. 215 ; 4, 5, 6, Ferguson v. Gilbert, 16 O. S. 88, ' Bennett v. Vade, 2 Atkins, 324 ; 91 ; Ford v. Mattice, 14 How. Pr. Williams v. Flight, 5 Beav. 41 ; 91 ; Fern v. Vanderbilt, 13 Abb. Rawlings v. Lambert, 1 J. & Hem. Pr. 72. 458, 466 ; Cooper's Eq. PI. 14. § 207 ORDERLY PARTS OF PLEADING. 186 upon one or the other of two grounds, and can not foreknow which ground may be established by the evidence, he ought to be allowed, now as formerly, so to frame his complaint as to adapt it to the possible state of the proof, if this can be done without embarrassment to the defendant. In many of the more recent cases, this view has obtained, as being at once the more rational, more conducive to the ends of justice, and consistent with the spirit and purpose of the Reformed Procedui-e ; and it may safely be said that the true rule, resting upon principle, and supported by the weight of authority, now is, that where a plaintiff has a single right of recovery, that may rest upon one ground or upon another, according to the facts to be shown by the evidence, and he can not safely foretell the precise nature and limits of the defendant's liability, to be developed upon the trial, he may state his right of action variously, in separate causes of action.^ This privilege is an exception to the general rule that each separate statement should set out a distinct and independent right of action, and inasmuch as a plurality of statements multiplies the issues, and tends to obscure the real claim which the defendant will have to meet, it is to be indulged only where it is fairly necessary for the protection of the plaintiff, and where it will not mislead or embarrass the defendant in his defense. Courts should not, on the one hand, by an unyielding adherence to the general principle, endanger the plaintiff's right ; nor should they, on the other hand, encumber the record, or embarrass the de- fense, by allowing needless latitude in the statement of a single right of recovery. And where, under favor of this iBirdseye V.Smith, 32 Barb. 217; Minn. 127; Bank v. Webb, 39 N. Velie V. Ins. Co., 65 How. Pr. 1 ; Y. 325 ; Bank v. Gaines, 10 Ky. L. Smith V. Douglas, 15 Abb. Pr. 266 ; Rep. 451 ; Matthews v. Copeland, Van Brunt v. Mather, 48 Iowa, 503 ; 79 N. C. 493 ; Jones v. Palmer, 1 Pierson v. Ry. Co., 45 Iowa, 239; Abb. Pr. 442; Cramer v. Oppen- Supervisors v. O'Malley, 46 Wis. stein, 16 Colo. 504 ; Whitney v. 35; Brinkman v. Hunter, 73 Mo. Ry. Co., 27 Wis. 327; Lancaster v. 172 ; Snyder v. Snyder, 25 Ind. Ins. Co., 1 Am. St. Rep. 739. Cf. 309; Steams v. Dubois, 55 Ind. Greenfield v. Ins. Co. , 47 N. Y. 430 ; 257 ; Cramer v. Lovejoy, 41 Hun, Dunning v. Thomas, 11 How. Pr. 281 ; Walsh v. Kattenburgh, 8 281. 187 THE COMPLAINT. § 208 rule, the complaint contains a duplicate or alternative state- ment of one liglit of action, it should state also the reasons therefor ; and in such case the verification of the complaint need not be more specific than the statements of facts are. 208. Duplicate Statement — Illustrative Cases. — Where the facts vrhich determine the legal nature of the plaintiff's right and the defendant's delict are within the exclusive knowledge of the defendant, and can be developed only upon the trial, the plaintiff may, under favor of the foregoing rule, state his claim in different forms in several causes of action, stating also his reasons for so doing. For example, the plaintiff, not knowing whether goods shipped on defendant's road and not delivered, were lost in transit, or burned at defendant's warehouse, joined two causes of action, one against the defendant as common carrier, and the other against it as a warehouseman, and the court sustained the pleading, and refused to require the plaintiff to elect on which cause he would proceed.^ In an action for work and labor, the complaint contained a cause of action alleging an agreement to pay a stipulated price, and another cause upon the quantum meruit. It ap- pearing that the work mentioned in both causes was the same, the defendant moved the court to require the plaintiff to elect on which count he would proceed to trial. This motion was overruled, and the pleading sustained on the ground of inability to rely safely upon only one ground of liability .2 Where a plaintiff claims to recover upon either of two causes of action, both of which can not be true, and he does not know which one is true, he may state them in the alter- native, in one complaint. Thus, in an action against a cor- poration, the plaintiff complained that he was induced to purchase shares of stock in the defendant corporation, upon its representation that they were valid, and that after his 'Whitney v. Ry. Co., 27 Wis. ner v. Nagel, 33 Minn. 348; 23 N. 327 ; Stearns v. Dubois, 55 Ind. 257. W. Rep. 808. Cf. Erabry v. Palm- « Wilson V. Smith, 61 Cal. 209; er, 107 U. S. 3 ; Beers v. Kuehn, Langprey v. Yates, 31 Hun, 432 ; 84 Wis. 33. Ware v. Reese, 59 Ga. 588 ; Wag- ^ 209 ORDERLY PARTS OF PLEADING. igg purchase the corporation denied the validity of the shares of stock, and refused to issue a certificate to the plaintiff. In one cause of action, he treated the stock as valid, and asked judgment for its value, on the ground that the defendant had converted it ; and in another cause he asked that if the stock was void, being non-issue or over-issue, he be awarded judgment for the money he had been induced, by defendant's false statement, to pay for it. It was held that the facts warranted such alternative statement.^ The statement of alternative grounds for one relief is sanctioned by numerous cases, in some of which their combination in a single cause of action is approved.^ 209. Duplicate Statement — Illustrative Cases, Con- tinued. — In an action to recover insurance money, the com- plaint stated two grounds ; one that the defendant issued its policy insuring plaintiff's property, the other that, by its agent, it promised and contracted to insure the property, and to issue its policy to plaintiff. A motion to require plaint- iff to elect on which ground he would rely was refused, for the reason that where there are distinct lines of fact, each of which would give the plaintiff a right to re- cover, and when it is apparent that different averments are proper to meet an emergency of the trial, it is unjust to limit the pleader to any one of them.^ A further reason, and one applicable in all such cases, may be suggested : If the plaintiff should be limited to the statement of only one ground, and should fail to establish that, it is more than doubtful whether he could thereafter avail himself of the other ground, in a second action for the same recovery. 1 Bank v. Ry. Co. (Gin. Sup. Ct.), 24 Abb. N. C. 326, in nota. Con- 9 O. L. Bull. 355. tra, Kewavinee Co. v. Decker, 30 * Everitt v. Conklin, 90 N. Y. Wis. 624 ; Durant v. Gardner, 19 645 ; Milliken v. Tel. Co., 110 N. Y. How. Pr. 94. The English Plead- 403 ; Floyd v. Patterson, 72 Tex. ing Rules, and the Mass. Practice 202 ; The Emily, 9 Wheat. 381 ; Act, have each, to some extent, Williams v. Lowe, 4 Neb. 382 ; sanctioned the use of alternative Thompson V. Minford, 11 How. Pr. statements. 1 Chit. PL, 16th Am. 273; Walters v. Ins. Co., 5 Hun, Ed., 260. 343; Paving Co. v. Gogreve, 41 ^ VeUe v. Ins. Co. , 65 How. Pr. 1. La. An. Rep. 251 ; 5 So. Rep. 848 ; 189 THE COMPLAINT. §210 In an action for the price of land, the plaintiff was allowed to claim, in one cause of action, on a special contract, and in another to claim on the quantum valebant; and under the latter, he was allowed to introduce evidence as to the value of the land.^ A cause of action on a renewal note, and one on the original note, may be joined, where the renewal note is usurious.^ And in some cases, the courts have sanctioned the joining of a cause on a promissory note with another stating the transaction that furnished the consideration for the note.^ This relaxation of the general rule, allowing duplicate and alternative statements of a single right of recovery, carries with it, of course, the right to introduce evidence to sustain such of them as the defendant may put in issue. 210. Several Kinds of Relief on One Cause of Action. — From one right of action, — that is, from one primary right and one breach thereof, — may arise a right to two or more different kinds of relief, obtainable in one action. In such case, there being but one right of action, there should be but one cause of action stated in a complaint asking for the several kinds of relief. Where one is the owner of land, and entitled to the possession thereof, and another wrongfully takes possession of the land and uses it, there is but a single right of action, to wit, the one primary right of possession, and the invasion thereof by one continuous wrongful act ; but the reliefs to which the land-owner is entitled are, (1). restoration of possession, (2) damages for the detention, and (3) the rents and profits received by the wrong-doer. A complaint in such case should contain but one cause of action,, and a prayer for full relief. In like manner, upon a single set of facts, stated in one cause of action, a plaintiff may have the threefold relief of (1) abatement of a nuisance, (2) dam- ' Stearns v. Dubois, 55 Ind. 257 ; 225 ; Kimball v. Bryan. 56 Iowa, Rhodes v. Pray, 36 Minn. 392. 632 ; 10 N. W. Rep. 218 ; Devens, ^ Bank V. Webb, 39 N. Y. 325. J., in O'Conner v. Hurley, 147 • Van Brunt v. Mather, 48 Iowa, Mass. 145 ; 16 N. E. Rep. 767. Con- 503 ; Vibbard v. Roderick, 51 Barb, tra, Ferguson v. Gilbert, 16 O. 8. 616, 628 ; Camp v. Wilson, 16 Iowa, 88. §211 ORDERLY PARTS OF PLEADING. 190 ages tlierefor, and (3) its further commission enjoined.^ In such cases, the different kinds of relief do not constitute sep- arate rii^hts of action ; there is but one primary right, and one delict, and these afford but one right of action, requiring but one cause of action for its statement, however many kinds of relief may be had. Where each kind of relief is asked upon precisely the same operative facts, but one statement of the facts is required. 211. Several Reliefs on One Cause, Continued. — In suits in equity, where the bill is for relief, as distinguished from bills not for relief,^ so that the general jurisdiction of the court attaches for the purpose of affording relief, it is a general rule that if the chancellor gives equitable relief, he will retain the cause and give the plaintiff such further legal relief, connected with, or growing out of, the equity, as he may be entitled to ; in other words, the chancellor, having acquired jurisdiction for the purposes of relief, will try the whole cause, and not drive the plaintiff to another action at law to obtain full relief.^ This rule of procedure in equity, adopted to prevent multiplicity of suits, obtains under the new procedure. But while this is a rule of procedure, it is not, and never was, a rule of pleading ; and it does not authorize the joining of separate causes not otherwise join- able, much less the commingling of several causes in one statement, though the prevailing practice is, to employ but a single statement in cases falling within this rule. In an action to enjoin the maintenance of an elevated rail- road in front of plaintiff's property, and for damages thereto- fore caused by its maintenance, there is but one right of action. But one right is asserted, and but one wrongful act complained of ; and but one cause of action should be stated, though two kinds of relief, one equitable and the other legal, are asked.* The damages are but an incident to the main ' Hudson V. Caryl, 44 N. Y. 553. ^ Ante, 152. See also, Hammond v. Cockle, 2 ^ Sto. Eq. Jur. 64k-74c ; BL-ph. Hun, 495; Henry v. McKittrick, 42 Eq. Jur. 565. Kan. 485. Contra, Dictum of * Shepard v. Ry . Co. , 5 N. Y. Supp. Swan, C. J., in McKinney v. Mc- 189. In Akin v. Davis, 11 Kan. Kinney, 8 O. S. 423. 580, it was held that where one ^91 THE COMPLAINT. §212 object of the action, and the right to both kinds of relief arises from the same facts. A plaintiff may, on a single cause of action, ask for different kinds of relief, in the alternative.^ 212. Action to Reform and to Enforce an Instru- ment. — It has generally been held that in actions to reform written instruments, and to enforce them as reformed, only one cause of action is required. It is so held in actions to reform a promissory note, and for judgment thereon as le- formed ; '^ to reform a written contract, and for judgment thereon as corrected ; ^ to reform a policy of insurance, and for judgment thereon as reformed ; * to reform a mortgage, and to foreclose it as reformed,^ or to reform a deed, and to quiet the title thereunder.^ So, also, in actions to cancel an instrument and to recover damages, or to set aside a conveyance and to recover or appropriate the land, it has generally been held that but one cause of action is necessary. It has been so held in an action to recover for personal injuries and to cancel a release from liability therefor ; '^ and in an action for divorce and alimony, and to set aside a fraudulent conveyance from defendant.^ These holdings, which are supported by abundant author- builds a dam, and thereby causes ' Hardin v. Boyd, 113 U. S. 756 a stream of water to overflow an- Ins. Co. v. Ins. Co., 1 Paige, 284 other's land to his damage, the in- Korne v. Korne, 30 W. Va. 1 jured person has two rights of Wood v. Seely, 32 N. Y. 105. action ; one for damages, which is ' Pom. Rem. 459. a legal right, and one to restrain ^ Gooding v. McAllister, 9 How. the continuance of the dam, which Pr. 123. is an equitable right. The error of ■* Bidwell v. Ins. Co., 16 N. Y. this view is, that it has regard to 263: N. Y. Ice Co. v. Ins. Co., 2S the kinds of relief to which the N. Y. 357 ; Ins. Co. v. Boyle, 21 plaintiff is entitled ; a matter that O. S. 119. should not be considered in deter- ' Hutchinson v. Ainsworth, 73 mining whether the facts consti- Cal. 452 ; McClurg v. Phillips, 49 tute more than one right of action. Mo. 315. There was clearly only one primary * Hunter v. McCoy, 14 Ind. 528. right invaded, by only one culpa- ' \\Tietstone v. Beloit, etc., Co., tory act. The right to two reliefs 76 Wis. 613. grew out of the same facts. » Damon v. Damon, 28 Wis. 510. § 213 ORDERLY PARTS OF PLEADING. 192 ity, rest upon the theory that the reformation or cancellation is but ancillary to the main relief sought, and that because the right to a judgment depends upon the reformation or cancellaiion, the allegations for that purpose become part of the ground for judgment. It is true that if we look only to the purpose of the reliefs sought, the one is subsidiary to the other ; but it by no means follows that only one cause of action is stated.^ In an action to reform and to enforce a contract, there are, generally, two causes of action — one on equitable ground, the other on legal ground. Some aver- ments that are necessary in one would be surplusage in the other. In the legal cause, the contract should be pleaded as it was actually made, and the breach should be alleged ; but, generally, no mention of the fraud or mistake — the ground for reformation — is either necessary or proper. In the equi- table cause, the contract as actually made, and also the fraud or mistake, should be averred ; but an allegation of the breach is neither necessary nor proper. It is clear that a statement of facts sufficient for the one relief may not show a right to the other. 213. Action to Reform and to Enforce an Instru- ment, Continued. — Another ground upon which the suf- ficiency of a single cause of action in such cases is main- tained is, that the legal demand does not arise until after the decree of the chancellor on the equitable demand ; that the plaintiff's power to enforce his legal demand begins only when the instrument has been corrected ; and that before the reformation of the instrument, no legal ground for relief can be stated.^ This view regards the equitable relief sought as giving character to the action, and regards the legal relief as a mere incident. It arises from a misinterpretation of the rule in equity procedure, that when the chancellor has acquired jurisdiction for the purpose of relief, he will give full relief. 1 Faesi v. Goetz, 15 Wis. 231 ; Henderson v. Dickey, 50 Mo. 161 ; Stephens v. Magor, 25 Wis. 533 ; Stewart v. Carter, 4 Neb. 564 ; Bank Harrison v. Bank, 17 Wis. 340 ; v. Newton, 13 Colo. 245. Guernsey v. Ins. Co., 17 Minn. 104, ^ Bliss PL 166-171. 108 ; Peyton v. Rose, 41 Mo. 257 ; i93 THE COMPLAINT. §214 This power of the chancellor, never very clearly defined, arose for the prevention of a multiplicity of actions, and has no reference to the rule of pleading under consideration. The new procedure, with the same end in view, has gone a step further, and authorized the joinder of legal and equi- table causes in one action. But this rule of procedure has not affected the inherent distinctions betweeen legal and equitable rights ; on the contrary, it has intensified the neces- sity for separate statements thereof, to the end that issues thereon may be separate and distinct, and, when necessary, that they may be separately tried — legal issues being of right triable to a jury, and equitable issues to the chancellor. In an action for specific performance of a contract to convey land, the action is primarily for equitable relief, and dam- ages for the detention of possession, being an incident only, may properly be awarded by the chancellor,^ and, looking to the prevailing practice, need not be demanded by a separate statement of operative facts ; but in an action to correct an ■error in such contract, and for damages for breach thereof, the equitable relief is ancillary to the legal relief sought, and each of the two branches of the action should be dis- tinguished, both in the pleadings and in the trial. 214. Action to Reform and to Enforce an Instrument, Continued. — In such action there are two distinct primary rights of the plaintiff, each invaded by a distinct and separate wrong of the defendant, giving rise to separate remedial rights, or causes of action. The right to reformation arises before there has been a breach of contract. The earlier right, founded on mistake or fraud, is in no way affected by the accruing of the later right, arising from a breach of the contract. These two rights, resting partly upon the same facts and partly upon different facts, differ in their nature and in their origin. They arise at different times, and may each be tlie subject of a separate action. It is axiomatic in pleading, that where the operative facts will sustain two ' Worrall v. Munn, 38 N. Y. 137 ; a master, or may order an issue Sto. Eq. Jur. 796. In such case, quantum damnificatus, to be tried the chancellor may proceed directly by a jury, with tlir> inquiry, or may refer it to 13 §214 ORDERLY PARTS OF PLEADING. I94 separate actions, there are two rights of action.^ Then if the facts necessary to be stated to obtain full legal and equitable relief in one action will sustain two separate actions, there should be two causes of action in a complaint for full relief. It is not correct to say that the legal demand does not arise until after the decree correcting the error in the instru- ment. The remedial right — the real contract and the breach thereof — exists without the reformation. The decree of the chancellor correcting the mistake creates no right ; it simply removes an obstruction to the enforcement of a pre-existing right, and furnishes the means for proving it. In cases where the statement of facts for legal relief will necessarily disclose such defect in the written instrument that no re- medial right will appear, it may be necessary to add, either by allegation or by reference to the other cause of action, a statement of the fraud or mistake. The complaint has been held to embody more than one cause of action, in a suit to correct an official bond, and for judgment for a breach thereof ; ^ to reform an insurance policy, and to recover thereon for loss ; ^ to reform a written contract, and for a money judgment thereon ; * to cancel a fraudulent conveyance, and to recover possession of the land ; ^ to have a deed to plaintiff declared a mortgage, a forged deed from the mortgagor set aside, and to have plaintiff's mortgage foreclosed.^ In actions to reform an instrument, and to enforce it as reformed, the causes should be separately tried ; and the one asking equitable relief should be first tried.' This is the ■ Swan, J., in Sturges v. Burton, three actions : (1) to have the first 8 O. S. 215. deed declared a mortgage ; (2) to ' Stewart v. Carter, 4 Neb. 564. have the second declared void be- ^ Guernsey v. Ins. Co., 17 Minn, cause a forgery, and to have it can- 104, 108. celed ; (3) to foreclose the mort- * Harrison v. Bank, 17 Wis. 340. gage." 5 Peyton v. Rose, 41 Mo. 257; ■" Boeckler v. Ry. Co., 10 Mo. Bank v. Newton, 13 Colo. 245. App. 448; Guernsey v. Ins. Co., 17 ' Moon V. McKnight, 54 "Wis. Minn. 104 ; Harrison v. Bank, 17 551. In this case, the court say : Wis. 340. " The plaintiff might have brought 195 THE COMPLAINT. §215 proper practice, for two reasons : (1) a trial of the equity cause may terminate the case ; for if tlie plaintiff sliould fail therein, he may then have no right, or only a modified right, under the legal cause ; (2) the instrument, as modified, may be necessary evidence in the trial of the cause for legal relief. 215. Action for Debt, and to Enforce Lien. — It has been held that an action on a note and mortgage, for a per- sonal judgment and a foreclosure,^ and an action to recover unpaid purchase-money and to enforce a vendor's lien there- for, should each contain but one cause of action, for the leason that the legal and equitable relief arise in each case from a single state of facts. But there are contrary holdings, and they rest upon sounder principle.^ To blend in one cause of action a demand for a personal judgment and for the enforcement of a lien, whether the lien be legal or equitable, is to disregard the rule requiring causes of action to be separately stated, and to lose sight of all distinctions between rights of action. In an action for judgment on a note, and foreclosure of a mort- gage, there are clearly two rights asserted ; the one legal, the other equitable. These separate rights could be made the subject of two independent actions ; therefore, they require, when joined in one action, two separate statements or causes of action. Prior to the union of legal and equitable actions, under the Reformed Procedure, such mortgagee had three separate remedies, two legal, and one equitable. He could maintain (1) an action at law on the note, with judgment and execu- tion, as though no mortgage existed ; (2) an action of eject- ment to recover possession of the mortgaged premises, the legal title being in the mortgagee; and (3) a suit in equity to foreclose the equity of redemption. The full relief, of »Pom. Rem. 459; Rollins v. Carthy v. Garraghty, 10 O. S. 438; Forbes, 10 Cal. 299; Andrews v. Giddings v. Barney, 31 O. S. 80; Alcorn, 13 Kan. 351. Spence v. Ins. Co., 40 O. S. 517; ■■^ Harrison V. Bank, 17 Wis. 340 ; Sauer v. Steinbauer, 14 Wis. 70; Ladd V. James, 10 O. S. 437 ; Me- Stephens v. Magor, 25 Wis. 533. p §216 ORDERLY PARTS OF PLEADING. igg; judgment and foreclosure, could not be obtained without two actions, in separate and distinct tribunals ; the one to enforce a right purely legal, the other to enforce a right purely equitable. ^ These separate rights lose none of their distinct and independent characteristics by being brought into one action for their enforcement. The cause of action on the note is legal, that on the mortgage is equitable ; an issue upon the one is triable by a jury, an issue upon the other is triable by the court ; as to one, constructive service will give jurisdiction, as to the other, actual service is requisite ; the remedy upon one is by judgment and execution, upon the other by decree and order; the action may be barred as to one by the statute of limitations, when it is not as to the other ; and one may be answered by a defense not available as to the other. 216. Action for Debt, and to Enforce Lien, Con- tinued. — The discrepancy in the decisions as to whether a complaint asking personal judgment on a note, and fore- closure of a mortgage securing the note, should contain one cause of action or two, is due to a failure to discriminate between the right of action and the cause of action. A dis- tinguished writer says : " There is but one cause of action," [right of action] although two actions may be based upon it.- The cause of action is the refusal to pay ; if he seeks to en- force the lien, the plaintiff has the same cause of action, only another remedy." ^ But "the refusal to pay "is only one element of a right of action — the delictum. The promise in the note, and the breach thereof, constitute the legal right of action, for a money judgment; the conveyance to secure payment, and breach of its condition, constitute the equitable right of action, to foreclose the defendant's equity of redemp- tion. It is true that the same culpatory fact, " refusal to pay,'' constitutes the delict in each right of action, but the investi- tive facts are not the same. If the complaint in such action should contain but a single ^ The practice in equity of award- close, was not the equivalent of a ing execution for the unpaid bal- judgment at law. ance of the debt, in a suit to fore- * Bliss PI. 171. 197 THE COMPLAINT. § 217 cause of action, it is because there is in such case but one right of action. If the right to judgment on the note, and to foreclosure of the mortgage, constitute but one right of action, then an action and judgment on the note alone would be an adjudication of the whole right of action, and would bar a subsequent action to foreclose the mortgage ; and, e converso^ the pendency of an action to foreclose the mortgage would be a good plea in abatement in a subsequent action on the note alone. But it has been held in such case that separate actions may be maintained at the same time, and that the pendency of one is not matter of defense in the other.i Indeed, since the one action may proceed without actual service and the other may not, the prosecution of both actions at the same time, and in different jurisdictions, may be necessary to obtain a complete remedy. 217. Remedy for Duplicity. — Two or more causes of action may be improperly united in a complaint, (1) by separate statements of causes not joinable, called misjoinder, or (2) by commingling two or more causes in one statement, which is commonly called duplicity. Misjoinder ^ relates to the fact of the union, and is remediable by demurrer ; ^ duplicity relates to the form of the union, and is remediable by motion to require the causes to be separately stated.* If several causes, not joinable, are united in one statement, so that, in form, but one cause of action is stated, wlien in fact two or more that can not be joined in any form are embraced therein, the complaint is faulty both in the fact of joinder and in the form thereof, and is amenable to either motion or demurrer, or both may be addressed to it successively. It seems the more approved practice is, to demur for misjoinder; though if we consider the consequences of a misjoinder,'' it will be seen that the more convenient course would be to have the causes separated in the first instance, so that the • Spence v. Ins. Co., 40 O. S. 517. used as synonymous with mis- • Multifariousness, the term used joinder. in equity to signify the improper ' Ante, 201 ; Post, 299, 300. union of distinct and independent ■• Post, 285, 286. demands in one bill, is sometimes ' Ante, 201. §217 ORDERLY PARTS OF PLEADING. 198 several causes may distinctly appear, if misjoinder be found. If a single statement embrace two or more causes in their nature joinable, but all of which are insufficient in substance, a general demurrer may properly be addressed to the com- plaint. If only part of the causes so commingled are defect- ive in substance, there is authority for demurring to such defective cause or causes, without first separating them ; ^ for the plaintiff may not urge the formal defect of his plead- ing to defeat a demurrer that questions it in substance ; and the same rule of practice has been applied to an answer com- mingling two distinct defenses in one statement.^ But the better practice is, to have the causes separated, by motion, and then to demur to such as are insufficient. If facts constituting a single right of action be improperly divided into two or more separate statements, the pleading will not thereby be rendered duplex, but each statement will, of course, be insufficient in substance, and subject to de- murrer for that cause.3 But some courts, regarding the defect as one of form rather than of substance, have disre- garded the formal separation, and treated the dissevered statement as an entirety, and therefore sufficient as a single cause of action.* Neither a commingled statement of several causes,^ nor a dissevered statement of a single cause,^ is ground for a motion to require the plaintiff to elect. Nor is a dissevered statement of a single cause amenable to demurrer for misjoinder of causes.'^ The commingling of several causes in one statement, being a defect of form only, is waived if the defendant answer without objecting to such defect.^ And the requirement ' Burhaus v. Sqmres, 75 Iowa, Rice v. Coolidge, 121 Mass. 393 59. Brooks v. Ancell, 51 Mo. 178 « Wright V. Connor, 34 Iowa, Welch v. Piatt, 32 Hun, 194 240. Madge v. Puig, 12 Hun, 15. » Catlin V. Pedrick, 17 Wis. 88. ^ Craig v. Cook, 28 Minn. 232. ^ Everett v. Wagmire, 30 O. S. * Rinehart v. Long, 95 Mo. 396. 308 ; Andrews v. Alcorn, 13 Kan. ' Hillman v. Hillman, 14 How. 351 ; Norman v. Rogers, 29 Ark. Pr. 456. 365 ; Shook v. Fulton, 4 Cow. 424 ; ^ Alpin v. Morton, 21 O. S. 536. 199 THE COMPLAINT. §218 that different causes shall be separately stated and numbered being a matter of practice, the right to enforce it is formal rather than substantial, and is generally within the control of the trial court. An order denying a motion to require commingled causes to be separated will not be reversed, unless the party complaining has thereby been deprived of some legal right.^ III. OF THE PRAYER FOR RELIEF. 218. Office of Prayer for Relief.— The third requisite (sl'Js O^ of the complaint is " a demand for the relief to which the plaintiff supposes himself entitled."^ Every action has an object ; that is, it is brought to obtain some particular remedy or relief. This relief sought is to be stated in the prayer of the complaint, and, when obtained, is embodied in the judg- ment of the court. The defendant is entitled to know what facts the plaintiff relies upon and intends to prove, in order that he may prepare to meet them, and for the same reason he is entitled to know what use the plaintiff intends to make of his alleged facts. To advise the defendant in this regard, the plaintiff is required to state what relief he demands. The prayer should make the complaint definite in this par- ticular ; and if the legal grounds of the plaintiff's claim do not sufficiently appear from the facts stated and the relief demanded, he should indicate such grounds by special state- ment.^ For example, if facts relied on as constituting a waiver, or an estoppel, are stated, and such effect is not ob- vious from the facts and the prayer for relief, the pleader should add the statement that the right has thereby been waived, or the party thereby estopped. While this is assert- ing a mere inference of law, it is allowable for the purpose of showing the intended application of the facts stated, when that would otherwise be obscure.* ' Goldberg v. Utley, 60 N. Y. Beaumont, 1 DeG. & Sm. 397, 427. 406 ; Gaston v. Frankum, 2 DeG » Ante, 169. & Sm. 561. 569. » Lang. Eq. PI. 62 ; CUve v. ♦ Gould PI. iii. 15. §§219-220 ORDERLY PARTS OF PLEADING. 200 The prayer for relief is a requisite of the complaint, but it is no part of the cause of action. Hence a complaint con- taining several causes of action ma}-, and properly should, contain but one prayer for relief. In such case it is re- quisite only that each separate statement shall be complete as a cause of action ; not that it shall be, within itself, a complete complaint. 219. Prayer for Alternative Relief, and for General Relief. — A plaintiff may, whether his complaint contain one cause of action or several, demand several kinds of relief, whether legal or equitable, or both ; ^ and he may pray for alternative relief.^ In a complaint on a contract to convey, the prayer may be for specific performance, or, if this relief can not be had, then for damages for breach of the contract.^ In actions for equitable relief, it is usual to follow the prayer for specific relief with what is known as a prayer for general relief — " and plaintiff prays for such other and further relief as may be just and equitable." Under such prayer, the court may decree such relief, other than that specifically prayed for, as the facts alleged in the complaint and proved upon the trial will justify.* 220. Relief Not Prayed for. — Under the former prac- tice, if a plaintiff misconceived the nature or form of his action, — if he brought an action at law, and on the trial proved a case for equitable relief, or if he sought equitable relief, and on the hearing showed himself entitled only to a judgment at law, — he failed entirely, and was sent out of court without relief. But under the new procedure, a plaintiff may, in such case, have relief according to his alle- gations and his proofs. The court will not be controlled by the prayer alone, but will look to the facts alleged and proved, and if they entitle the plaintiff to a remedy, legal or 1 Ante, 210, 211 ; Richwine v. Paige, 284 ; Kome v. Korne, 30 W. Presb. Ch., 135 Ind. 80. Va. 1. » Barlow v. Scott, 24 N. Y. 40. * Jones v. VanDoren, 13 U. S. » Henry V. McKittrick, 42 Kan. 684; Riddle v. Roll, 24 O. S. 572; 485. See, also, Hardin V. Boyd, 113 English v. Foxall, 2 Pet. 595; U.S. 756; Ins. Co. v. Ins. Co., 1 Tayloe v. Ins. Co., 9 How. 390. 201 THE COMPLAINT. §221 equitable, it will be awarded, whether prayed for or not.^ For example, where the facts alleged entitle the plaintiff to an accounting, but not to a money judgment, the equitable relief should be granted, if the facts alleged are sustained by the proof.^ But if sufficient facts are not alleged, or, being alleged, are not proved, no relief can be given, although prayed for in the most formal way.^ Recovery must be secundum allegata et probata; and allegations without proof, ar proof without allegations, will not avail. Thus, if the facts alleged show 9, right to recover money laid out and expended, but not a right to an accounting, and the prayer is for a legal judgment, if the proof fails to sustain the aver- ments of the complaint, but does show a right to an account- ing, the equitable relief should not be granted ; for while the proof would warrant such relief, there are no allegations to which the proof can be applied.* The default of defendant for answer is not an admission of right to the relief prayed for, but only to such as is both prayed for and warranted by the facts alleged.^ Therefore, upon default for answer, relief not prayed for can not be had ; nor can that prayed for, if not warranted by the facts alleged.^ 221. Prayer an Election between Remedies. — Where the facts stated in a complaint entitle the plaintiff to either of two remedies, he may elect the one or the other by his prayer for relief, and thereby determine the character of the action.''' If, for example, the declaration state a contract to convey, and a breach thereof, so that plaintiff may have specific performance or damages, he can not have both remedies, and should, in his prayer for relief, elect the one or the other ; though in such case he may pray for alterna- tive relief. • White V. Lyons, 43 Cal. 279 ; * Drew v. Person, 22 Wis. 651. Graves v. Spier, 58 Barb. 349 ; » Argall v. Pitts, 78 N. Y. 239. Leonard v. Rogan, 20 Wis. 540 ; « Bliss PI. 160. Hamil v. Thompson, 3 Colo. 518 ; ' Gillett v. Freganza, 13 Wis. Williams v. Slote, 70 N. Y. 601. 472 ; Lowber v. Connit, 36 Wis. « Emery v. Pease, 20 N. Y. 62, 64. 176 ; Corry v. Gaynor, 21 O. S. » Bradley v. Aldrich, 40 N. Y. 977. Per Welch, C. J ; O'Brien v. 504. ritz!,'eral>l, 143 N. Y. 377. §§222-223 ORDERLY PARTS OF PLEADING. 202 222. Prayer for Relief Not Demurrable. — A com- plaint is not demurrable because the relief asked is not war- ranted by the facts stated,^ or is inconsistent,^ or unneces- sary ; ^ and it has been held that a motion to make a com- plaint specific and definite can not be applied to the prayer.* It is a general rule that the prayer may be amended at any stage of the cause, without delay, and without terms.^ 223. Complaint to be Subscribed. — All pleadings must be subscribed by the party or by his attorne}'-. This, like the requirement that the word " complaint " or " petition " shall follow the title of the cause, is purely formal, and objection to a pleading for want of subscription is to be taken '■J ' by motion to strike it from the files ; ^ but so long as such . L defective pleading remains on file, it furnishes no ground for ^ dismissing the actionJ The subscription may be either printed or written,^ and in the absence of a motion to strike from the files, the signature of the party to the verification is a sufficient subscription of the pleading.^ The omission of the subscription to the complaint does not affect the jurisdiction of the court, or the validity of a judg- ment,^*^cannotbe made ground for delay,^^ and may, on leave obtained, be supplied at any time. One of the essential features of the reformed system is, that matters merely formal are not necessary to jurisdiction or to the validity of procedure, and that mere informalities are not to be regarded, ' Orraan v. Orman, 26 Iowa, 361 ; ^ Foote v. Sprague, 13 Kan. 155 ; Northcraft v. Martin, 28 Mo. 469 ; Cvdver v. Rogers, 33 O. S. 537, Per Tisdale v. Moore, 8 Hun, 19 ; Johnson, C. J. Mackey v. Auer, 8 Hun, 180, 183. « Fritz v. Barnes, 6 Neb. 435 ; Contra, in Iowa and Connecticut, Post, 278. by statute. ' Fritz v. Barnes, 6 Neb. 435. ■^ Metzner v. Baldwin, 11 Minn. ^ Hancock v. Bouman, 49 Cal. 150 ; Connor V. Bd. of Ed., 10 Minn. 413 ; Ins. Co. v. Ross, 10 Abb. Pr. 439. 260, n. ^ Saline Co. v. Sappington, 64 ^ Hubbell v. Livingston, 1 Code Mo. 72. Rep. 63 ; Conn v. Rhodes, 26 O. * Sieberling Co. v. Dujardin, 38 S. 644. Iowa, 403. Sed qucere ; for in some '" Conn v. Rhodes, 26 O. S. 644. cases it is the office of the prayer " Ry. Co. v. Owen, 8 Kan. 409. to make the complaint definite. M 203 THE COMPLAINT. §§ 224-225 if to disregard them will work no prejudice, and if to regard them will work delay. IV. OF THE VERIFICATION. 224. The Object of the Verification.— With the view to secure good faith and truthfulness in pleading, to confine litigation to matters really in dispute, and to avoid frivolous and false issues, nearly all the codes require pleadings of fact to be verified upon oath. By thus requiring parties to "^ sustain their statements and denials by affidavit of their truthfulness, facts not believed to be true will seldom be alleged on the one hand, and alleged facts believed to be true will seldom be denied on the other hand, and the judicial controversy will thus be limited to such statements and denials as the parties are willing to swear to. In some states no verification is required ; in some it is optional ; in some it may be omitted in certain actions, or under particular circumstances ; and, when required, it may generally be made by the party, by one of several parties, or by an agent or attorney of the party. 225. Defective Verification. — The verification is not re- quired to be more specific than the statements or denials sup- ported by it. If facts are stated on information or belief, or if two causes of action are stated in the alternative, only one of which can be true, the verification may be correspondingly qualified.! The verification is not strictly a part of the pleading,'-^ and is not necessary to vest jurisdiction.-^ If omitted, it may be supplied,* and if defective, it may be amended.^ ' Boone's PI. 34 ; Orvis v. Gold- ' Johnson v. Jones, 2 Neb. 126 ; Schmidt, 64 How. Pr. 71 ; Ladue Dorrington v. Meyer, 8 Neb. 211, V, Andrews, 54 How. Pr. 160 ; Trus- 214; Rush v. Rush, 46 Iowa, 648. cott V. Dole, 7 How. Pr. 221. * Bragg v. Bickford, 4 How. Pr. ' George v. McAvoy, 6 How. Pr. 21 ; Meade v. Thorne, 2 W. L. JI. 200 ; Bank v. Shaw, 5 Hun, 114. 312. Cf. Boyles v. Hoyt, 2 W. L. Complaint on note dated June M. 548 ; V/hite v. Freese, 2 C. S. 18, 1874, payable in two months ; C. R. 30, holding that upon supply- jurat to verification dated June ing a verification, on motion of 24, 1874. General demurrer over- plaintiff, a new summons must ruled on ground that the jurat issue, was no part of the complaint. * Johnson v. Jones, 2 Neb. 12C ; § 226 ORDERLY PARTS OF PLEADING. 204 Objection to a pleading, for want of verification, or for de- fective verification, should be made by motion to strike from the files. ^ But such omission or defect is waived by de- murring, or by pleading over,^ or by confession on a warrant of attorney releasing all errors.'^ 226. Conspectus of the Complaint. — The complaint must display a state of facts that, under the substantive law, entitles the plaintiff to judicial action in his favor and against the defendant ; and it must show, by allegations, unless dis- pensed with by legal inference, that the court has jurisdic- tion, and that the parties have legal capacity to sue and to be sued. These requisites are matters of substance, and can not be waived or dispensed with. The other parts of the com- plaint — title, name, prayer, subscription, verification — are matte i-s of form, and are, for the most part, not essential to the jurisdiction of the court or the validity of its procedure. The manner in which the matter of the complaint is to be stated — in ordinary and concise language, by joinder of causes, and by separate statement of causes — is a formal re- quirement, designed to expedite procedure, lessen its cost, and enhance its certainty and safety. A tabular synopsis of the orderly parts of the complaint will serve as a retrospect of what has been described in detail, and will envisage and fix in their order the constitu- ents of this first pleading. Rush V. Rush, 46 Iowa, 648 ; Jones ' Hughes v. Feeter, 18 Iowa, 142 : V. Slate Co,. 16 How. Pr. 129. Butler v. Chvirch, 14 Bush, 540 ; 1 Fritz V. Bames, 6 Neb, 435 t State v. Ruth, 21 Kan. 583 ; Pud- Warner V. Warner, 11 Kan. 121 ; ney v. Burkhart, 62 Ind. 179. Pudney v. Burkhart, 62 Ind. 179 ; » Bank v. Reed, 31 O. S. 435. Post, 278. THE COMPLAINT. SYNOPSIS OF COMPLAINT. I. The Title. 1. Court and County. 2. Parties, Plaintiff and Defendant. II. The Word " Complaint," or " Petition." m. The Statement. (1) The Matter to be Stated. 1. Capacity of Parties. 2. Jurisdictional Facts. 3. The Cause of Action. (a) Right of Plaintiff. (6) DeUct of Defendant, (c) Collateral Facts. (2) The Manner of Statement. 1. Ordinary and Concise Language. 2. Joinder of Causes. 3. Separate Statement of Caus«a. rV. The Prayer for Relief. V. The Subscription. VI. The Verification. (M %A^^ CHAPTER XVIL THE ANSWER. 227. Defenses Defined and Classified. — The answer, which is the first pleading of denial or of facts by the de- fendant, is to set forth such defense or defenses as he may- have to the demand of the plaintiff. The term " answer " applies to the entire pleading, and should not be used to designate any one of several defenses embraced within such pleading. Any denial, or any statement of operative facts, which will show that the plaintiff is not entitled to relief, or that will wholly or partly defeat his claim, is a defense.^ For example, if the plaintiff sue to recover the price of prop- erty sold, the defendant may answer (1) that payment is not due, and thus defeat the action while admitting the in- debtedness ; or (2) he may deny that he bought the property, and thus defeat recovery, unless the plaintiff prove the sale as alleged ; or (3) he may admit the purchase, and allege payment, which will defeat recovery, unless payment be denied, and not proved. Any one of these responses to the plaintiff's complaint would show that he ought not to re- cover as claimed therein, and would be a defense thereto. The defendant may also, in such supposed case, allege a war- ranty of the property, and a breach thereof, and make a counter-claim for damages. 228. Denials and New Matter. — Pursuant to the forego- ing definition and classification of defenses, the answer should contain (1) a general denial of all the allegations of the com- plaint, or a specific denial of one or more of its material allegations ; or it should contain (2) a statement of new 1 WoRDEN, J., in Wilson v. Poole, v. Crawford, 1 Idaho, 770 ; Grant, 33 Ind. 443 ; Allen, J., in Bush v. J., in Ry. Co. v, Washburn, 5 Neb. Prosser, 11 N. Y. 347, 352 ; Ry. Co. 117, 125. 206 207 THE ANSWER. § 229 matter constituting a defense, a counter-claim, or set-off, ill ordinary and concise language. The defendant may join in his answer as many grounds of defense, counter- claim, and set-off, as he may have, whether they are sucli as have heretofore been denominated legal or equitable, or botli ; and he may therein demand relief touching the matters in ques- tion in the complaint, against the plaintiff, or against other de- fendants ; but each defense, and each affirmative demand, must be separately stated, and must refer in an intelligible man- ner to the causes of action which they are intended to answer. There is, generally, no statutory requirement that the answer shall be entitled. The complaint must be entitled with the names of the court, county, and parties, followed by the word " complaint " ; and it is good practice, if not an express requisite, so to entitle all subsequent pleadings, substituting, of course, " answer " or " reply " in the place of "• complaint." In no other way can these pleadings be so surely and so conveniently identified with the court and the action.^ I. OF DENIALS. 229. The General Denial. — At common law, the general traverse is a compendious denial of all that is alleged in the declaration. It is commonly pleaded by a short and simple formula, called the general issue ; but it is equivalent to a specific negation of each material averment of the declara- tion. ^ In like manner, the general denial under the Reformed Procedure is a general traverse ; that is, it is a traverse of all the issuable facts alleged in the complaint. It is the litis contestatio of the civilians, which put the plaintiff to the proof of his libel.^ But notwithstanding this broad and comprehensive character of the general denial, it puts in issue only the material allegations of the complaint. A material allegation in a pleading is one that is essential to the claim or defense; one that could not be stricken from the pleading without leaving it insufficient. An immaterial allegation in a complaint — one not essential to the plaintiff's ' Boone PI. 59. ^ Ante, 43. » Ante, 63. §5^230-231 ORDERLY PARTS OF PLEADING. 20S demand — need not be proved,^ and is not admitted by failure to deny; a traverse thereof would present an im- material issue, equivalent to no issue. 230. Forms of General Denial. — There are several dis- tinct forms of the general issue ; for example, non est factum^ in covenant and in debt on a specialty ; nul tiel record^ in debt on a record ; non assumsit, in assumpsit ; non detinet, in detinue ; non culpahilis, in trespass, in case, and in trover ; and non cepit, in replevin. But no particular form of general denial is prescribed or required ; it is requisite only that each, and every allegation of the complaint be traversed. A form in common use is, " The defendant, for answer to the complaint herein, denies each and every allegation thereof." A denial in this form, " The defendant says he denies," while sufficient^ is in bad form, and has been criticised.'^ A denial of " all the material allegations of the complaint" is good on de- murrer, but is amenable to a motion to make definite. ^ It is faulty in that it is uncertain as to what allegations are denied, and what are not denied ; and it allows the pleader to determine, without stating, what allegations are by him deemed material. An answer that the defendant can not admit the facts alleged in the complaint, and that he calls for proof, is not, in form or in substance, a denial of any allegation of the complaint.* Whatever form is employed, the denial must be direct and positive. An argumentative denial, a legal conclusion, or a plea of " not guilty," is insuf- ficient. ^ 231. The Special Denial. — The object of denials, whether general or special, is to put in issue the allegations of the complaint. It has been shown that the general denial traverses and puts in issue all the material and issuable facts • Gaines v. Ins. Co., 28 0. S. 418. ^ Edmondson v. Phillips, 73 Mo. 'Espinoa v. Gregory, 40 Cal. 57; Pry v. Ry. Co., 73 Mo. 123; 58 ; Chapman v. Chapman, 34 Ingle v. Jones, 43 Iowa, 28G ; Lewis How. Pr. 281 ; Jones v. Ludliim, v. Coulter, 10 O. S. 451. 74 N. Y. 61 ; Moen v. Eldred, 22 * Bently v. Dorcas, 11 O. S. 398 ; Minn. 538 ; Munn v. Taulman, 1 Bldg. Assn. v. Clark, 43 O. S. 427. Kan. 254. Cf. Smith v. Nelson, 62 * Schenk v. Evoy, 24 CaL 104 ; N. Y. 286. Post, 343, 358. 209 THE ANSWER. §232 stated in the complaint. In most cases the plaintiff's riglit of action rests upon a series or group of facts, each one of which is an indispensable part of his cause of action. It is obvious that where the right of the plaintiff is thus built upon several allegations, each of which is essential to its support, the right so asserted is effectually controverted by the denial of any one of these essential parts. The com- plaint may sometimes contain averments — such as those of time, place, value — that must be stated, but that need not be proved as stated ; and sometimes the complaint will contain evidential facts — mere details of evidence, from whicli the existence of the operative facts is to be inferred ; and again u it may contain mere conclusions of law, resulting from facts i/lJI,iL^^ stated, or from facts not stated ; all such allegations, whether * , of the kinds that are necessary or of the kinds that are not ^^"wt^,^^ necessary in the complaint, are not issuable, and a denial of (Jj, such allegations will not present a material issue, and is not ^ defensive. ^rtKM It follows from what has been stated that the denial of any i-t^ material and issuable allegation of the complaint makes a . , material issue, and is a good defense.^ Such traverse of a particular averment of the complaint is termed a special "^(^tl/d denial. It is, substantially, the " common traverse " of the common-law pleadings,^ and is available where some of the issuable facts of the complaint are true, and can not be con- K^ I troverted by a general denial. Whether a specific denial in " 7 ' a given case, sufficient in form, constitutes a defense, depends upon whether the allegation traversed is in itself essential to the plaintiff's right of action. 232. Special Denial, Continued. — Some examples will illustrate this form of denial. An allegation that the defend- ant never gave to plaintiff the note sued on, is a denial of the plaintiff's allegation that the defendant made and delivered it.^ Iti replevin, a denial that the property came into defendant's possession, or that it was or remained in his possession at the commencement of the action, is a denial of V. "Warner, 15 Baxb. ' Steph. PI. 295 ; iPom. Rem. 615. * Sawyer » Ante. 64. 282, 285. 14 g233 ORDERLY PARTS OF PLEADING. 210 possession.^ An allegation that certain land was dedicated as a homestead, by certain acts stated, is traversed by a denial of the ultimate fact — the dedication as a homestead ; ^ and an allegation that a note and mortgage "were executed by the duly authorized board of trustees of the defendant," is put in issue by denial "that either note or mortgage was executed or made in any way by defendant." ^ Where a complaint alleges the making and delivery of a note to a payee, and a sale and delivery thereof by the payee to the plaintiff, an answer admitting the making and delivery, alleging payment, and denying each and every other allega- tion, puts in issue the sale and delivery to plaintiff ; ^ and an answer to a complaint for work performed and materials A furnished, of a certain value, that admits the doing of the J(j,A work and the furnishing of the materials, but denies that they were of the value specified, puts the value in issue.^ There may be several special denials in one answer, each directed to a separate and distinct averment of the complaint. 4/M\Aj In such case, each denial should be specific and direct, and /■ should point out clearly the statement of the complaint in- y*^"*"^^ tended to be controverted by it. In some states a special _^ denial is required in all cases, in some it is required only to ' ^'' 7 / a verified pleading, while in others it is always pj)tional. ^^ 233. General Denial of Part of Complaint.— It is ^ common practice to admit certain allegations of the com- plaint, and to deny all allegations therein not expressly admitted. This general denial of only a part of the allega- tions of the complaint, combined with an admission as to others, has been criticised as " a mongrel form of answer " not contemplated by the reformed system, and not in har- U. ^C^-^^A-. 1 Roberts v. Johannas, 41 Wis. 616. « Lowell V. Lowell, 55 Cal. 316. Sed qurere. On principle, if the allegation of dedication is merely collateral, or by way of induce- ment, such allegation would be the operative fact, and denial thereof w^ould be a good traverse ; other- wise, the dedicatory acts stated would be the operative facts, and the allegation of dedication a legal conclusion, denial of which wovdd make an immaterial issue. ' Babbage v. Church, 54 Iowa, 172. * AUis V. Leonard, 46 N. Y. 688. ' Van Dyke v. Maguire, 57 N. Y. 429. 211 THE ANSWER. §234 mony with its true theory.^ But it has the sanction of uniform practice, and the approval of numerous courts,^ and may be regarded as the settled and authorized practice. Such denial may be in this form: The defendant denies each and every allegation of the complaint not lierein ex- pressly admitted. Express admissions are, of course, not called for, but they serve to qualify and make certain the extent of the denial. If sucli combination of admissions and denials is so framed as to be indefinite or uncertain as to what is admitted and what is denied, the remedy is by motion to make the answer definite and certain, and not by the exclusion of evidence upon the trial.^ A general denial and a special denial of the same allegation is needless, and is not permitted.* A defendant may make a specific denial of one distinct part of a complaint, and a general denial of the remainder ; ^ though he may not specifically admit part of an entire allegation, and deny other parts of it.^ 234. Allegations Admitted by Failure to Deny. — All material allegations in the complaint, not traversed by general or special denial, are, for the purposes of the action, admitted to be true.'^ This rule, drawn from the common law,^ is to compel the defendant to admit so much of the complaint as he can not conscientiously deny.^ Failure to_ deny a material allegation is a conclus ive admission thereof, and dispe nses with proof, as to such allegation ; ^ and the denial of an alleg ation not traversabl e does not call for proof. ' Pom. Rem. 633 et seq. ♦ Blake v. Eldred, 18 How. Pr. « Wheeler v. Billings, 38 N. Y- 240 ; Fogerty v. Jordan, 2 Robt. 263 ; Leyde v. Martin, 16 Minn. 38 ; 319, 322. Kingsley v. Oilman, 12 Minn. 515, *> Blake v. Eldred, 18 How. Pr. 517, 518 ; AUis v. Leonard, 46 N, 240. Y. 688 ; Calhoun v. Hallen, 25 Hun, « Fogerty v. Jordan, 2 Robt. 319, 155 ; Falls Co. v. Bridge Co., 23 322. Minn. 186 ; Ingle v. Jones, 43 Iowa, ' Maguire v. O'Donnell, 103 Cal. 286 ; Parshall v. Tillon,. 13 How. 50. Pr. 7. 8 Steph. PI. 276. » Greenfield v. Ins. Co., 47 N. Y. » Hartwell v. Page, 14 Wis. 49. 430, 447; Burley v. Bank, 111 U. '"Lillienthal v. Anderson, 1 Idaho, S. 216. 673; Burke v. Water Co., 12 CaL §g 235-236 ORDERLY PARTS OF PLEADING. 212 Allegations of evidential facts, or of legal conclusions, ar§ not issuable ; ^ and generally, allegations of time, place, and value, are not issuable, but may, without traverse, be the subject of proof.'^ Failure to deny an allegation that is not material is not an admission of its truth ; ^ and a fact nol. well pleaded is not admitted by failure to answer it^; * for a tacit admission ought not to help a complaint, and make it broader than it is by allegations. And where material facts, omitted from the complaint, are stated in the answer, the defect in the complaint is thereby cured.^ II. OF NEW MATTER. -C^ 235. The Defense of New Matter.— The defense of denial, whether general or special, does not allege any fact ; l^^^ji^ it simply denies facts alleged in the complaint, and rests tjie I ,f contention upon the allegations so traversed. The defense f'*«.*-«-t of new matter, on the other hand, does not deny any fact ; ""^ without controverting any averment of the complaint, ^^i-^/lS/, it asserts other facts whicli show that, notwithstanding the / . facts stated in the complaint, the plaintiff has not a right of action against the defendant. It proceeds upon the tacit admission that the issuable facts stated in the complaint are i^A^/Qi true. This is called " giving color," which is a prerequisite f^hj justification for introducing the new matter, and is a logical concomitant of this defense. But this is only a logical ^»^^ admission, made pro re nata, to authorize the introduction of i7^/_^ new facts in the defense ; the defendant may, in the same vie / answer, and as a separate defense, deny a ny or all the aver- liAMA^-f -^ ments of tlie complaint. 236. Philosophy^ this Defense. — Whether a particular jj 403 ; MuKord v. EstnidUlo, 32 Cal. ^ Counoss v. Meir, 2 Smith, E. D. U ^*fl^ 131 ; Wright v. Butler, 64 Mo. 165 ; 314 ; Fry v. Bennett, 5 Sand. 54 ; ^^^^JliCuA Steele v. Russell, 5 Neb. 211. Oechs v. Cook, 3 Duer, 16L ^^\ ' Racouillat v. Rene, 32 Cal. 450, * Harlow v. Hamilton, 6 How. rfJitPi ciiUt^45^ ; Siter v. Jewett, 33 Cal. 92 ; Pr. 475 ; Fry v. Bennett, 5 Sand. ' Cutting V. Lincoln, 9 Abb. Pr. N. 54 : Clay Co. v. Simonson, 1 Dako- S. 436 ; Bank v. Bush, 36 N. Y. ta, 403. 631 ; Downer v. Read, 17 Minn. 493. « Shively v. L. & W. Co., 99 CaL » Jenkins v. Steanka, 19 Wis. 126; 259. Counoss V. Meir, 2 Smith, E. D.314. 213 THE ANSWER. § 236 act is legally right, or legally wrong, may depend upon the occasion upon whicli it is enacted. An act apparently un- lawful when considered by itself, may be clearly lawful when considered in conjunction with the correlated circumstances. So, a statement of facts that by themselves show a right of action, may not show such right when taken in connection witli other and correlated facts. The defense of new matter is based upon this principle. It brings upon the record other facts, so correlated to those already alleged as to form with them an entire group of circumstances, which, taken together, show that the plaintiff has not the right of action disclosed by that part of the facts disconnected by him from the entire group, and stated in the complaint. For example, in trespass for assault and battery, the plea of son assault demesne simply brings upon the record the additional fact that the plaintiff first assaulted the defendant, and that he, to save himself, assaulted and beat the plaintiff. By this complement of facts, the segregated fact asserted by the plaintiff is shown not to have wrongfully invaded any right of his ; and the apparent liability of the defendant is avoided, without controverting any fact alleged against him. So, an answer alleging the fraudulent representations of the plaintiff simply completes, upon the record, the group of operative facts, part of which the plaintiff had stated. In such case the facts stated by the plaintiff are not questioned ; they are simply placed in juxta- position with correlated facts, to show that, as part of the en- tire group of facts to which they belong, they do not give the plaintiff the right which they apparently do when dis- connected and standing alone. The connection between the segregated facts stated by the plaintiff, and the complemental facts pleaded in defense, is not always so apparent as in the case just stated. Payment, for example, is, generally, a defense of new matter. If pay- ment be made at the time the obligation is incurred, its con- nection with the facts creating the duty to pay is appar- ent ; but if payment be made long after the liability is in- curred, it is none the less a part of the entire transaction, though removed in point of time. Payment, whenever made, is one of the entire group of facts which must be taken to- § 237 ORDERLY PARTS OF PLEADING. 214 getlier, to show the true relation between the parties. A plea of the statute of limitations is a defense of new matter not immediately connected with the facts stated by the plaintiff ; but it brings upon the record a new fact, the lapse of time, which, by virtue of the statute, enters into the group of facts fixing the legal relation of the parties, only part of which has been stated by the plaintiff. If the plaintiff allege a contract with the defendant, and breach thereof, the defendant may not answer that he made the contract with another. The making of a contract with another is not a cognate fact, and in no way affects the legal operation of the facts stated by the plaintiff. An answer stating such fact would not give color, and therefore would not make place for the new matter.^ The proper answer in such case would be a denial ; and the making of the contract with another would be an evidential fact in support of the denial. An answer of new matter should be limited to facts not era- braced in a judicial inquiry as to the truth of matters stated in the complaint.^ So, in an action for injury caused by the wrongful act of the defendant, he may not plead payment by a stranger. For example, if property insured against fire be burned by the actionable negligence of the defendant, he may not plead payment by the insurance company. Payment by a third party is a fact that does not belong to the group of facts that fix the jural relations of the plaintiff and defendant. Such payment comes from a collateral source, and is res inter alios acta? The right of the insurer, in some cases, to be reim- bursed out of the amount recovered from the wrong-doer who occasioned the loss, rests upon the equitable doctrine of subrogation.* 237, Dilatory Answers. — Answers of new matter may be ' Ante, 71 ; Post, 240. Mass. 213 ; Sherlock v. Ailing, 44 » Pom. Rem. 593. Ind. 184 ; Klain v. Thompson, 19 3 Perrott v. Shearer, 17 Mich. 48 ; O. S. 569 ; Post, 437, wliere this Yates V. Whyte, 4 Bing. N. C. 272 ; doctrine is more fully stated. Cunningham v. E. & F. H. Ry. * Weber v. Railway Co. , 35 N. J. Co., 102 Ind. 478; s. C. 20 Re- L. 409 ; Newcombe v. Ins. Co., 23 porter, 428 ; Hayward v. Cain, 105 O. S. 382. 215 THE ANSWER. §238 classed as (1) dilatory, (2) in bar of the action, and (3) for affirmative relief. Dilatory answers, like dilatory pleas at common law,^ question, not the merits of the demand, but the occasion of the action ; they relate to some incident of the particular suit, and not to the merits of the pkiintiff's de- mand, and are (1) to the jurisdiction, or (2) in abatement. An answer to the jurisdiction questions the right and power of the court to entertain the action, on ground not apparent upon the face of the complaint. If the want of jurisdiction affirmatively appears from the complaint, it should be taken advantage of by demurrer.^ An answer in abatement sets up some matter of fact, the legal effect of which is to overthrow the pending action, without questioning the merits of the plaintiff's demand. Among the defenses that may be pleaded in abatement are, misnomer, present want of 'capacity to sue, a defect of parties, and the pendency of another action. As at common law a plea in abatement was required to give the plaintiff a better writ or declaration,^ so, under the new system, such answer nnist furnish information — sucli as the true name of defend- ant, where misnomer is pleaded, and the names of necessary parties, where defect of parties is pleaded — that will enable the plaintiff to cure the defect by amendment, if it be a de- fect that can be so cured. Generally, if the ground of an objection that may be made by dilatory answer appears in the complaint, advantage may be taken of it by demurrer ; but if it does not so a^jpear, the facts, being new matter, must be brought upon the record by answer, and can not be proved under a denial. And, gener- ally, where a defendant pleads in bar, instead of in abate- ment, he waives such defects as might be the subject of plea in abatement.* 2.38. Answer of New Matter in Bar. — A dilatory answer, whether to the jurisdiction or in abatement, tends merely to overthrow the pending action, by diverting it to another jur- ' Ante, 58. ■• Board of Comrs. v. Huffraan, ■' Post, 291. For full discussion 134 Ind. 1. Cf. Black v. Thomp- of jurisdiction, see Post, 461 et seq. son, 136 Ind. 611. 3 Ante, 69. §239 ORDERLY PARTS OF PLEADING. 216 isdiction, or by suspending or abating it. An answer in bar, whether a denial or new matter, impugns the right of action^ and controverts the plaintiff's claim. An answer of denial is always in bar ; an answer of new matter is either dilatory, or in bar. An answer of denial makes an issue, and termi- nates the pleadings ; an answer of new matter, whether dila- tory or in bar, does not make an issue, but calls for a reply. Answers of new matter in bar are either in excuse^ or in discharge. An answer of new matter in excuse alleges some justification of the matters charged in the complaint, and shows that the plaintiff never had a right of action by reason thereof. An answer of new matter in discharge shows some release or discharge of the duty arising from the facts stated in the complaint. Of the former class are, pleas of self- defense, of infancy, of duress, and the like ; of the latter class are, pleas of payment, of release, of the statute of limitations, and the like. 239. Equitable Defenses in Legal Actions. — One of the 'U/tf-, most radical reforms of the new procedure is that of allowing equitable defenses in actions founded on legal rights. For- merly, a defendant having an equitable defense to a legal right asserted against him was driven to another action, in a court of equity, to establish his defense ; in the mean time restraining his adversary, by injunction, from proceeding in the action at law. But under the new procedure, a de- fendant in an action at law may assert legal or equitable defenses, and he may join both in the same answer. An equitable defense, as contradistinguished from a legal ^< defense, is a right in the defendant formerly recognized and ^^^ enforceable only in a court of equity, and which would for- merly have authorized an application to the court of chan- cery for relief against a legal liability, but which could not, at law, be pleaded in bar.^ An equitable defense is new matter, and must be so pleaded ; it can not be proved under a general denial.* This is so, because such defense does not ' Allen, J. . in Dobson v. Pearce, 357 ; Kenyon v. Quinn, 41 Cal. 325 ; 12 N. Y. 156, 166. Stewart v. Hoag, 12 O. S. 623. * Powers V. Armstrong, 36 O. S. 217 THE ANSWER. § 240 controvert the facts stated by the plaintiff ; it' sets up new facts showing an equity in the defendant inconsistent with the right asserted hy the plaintiff, but not inconsistent with his facts alleged. In an action for the recovery of real estate, whereof the legal title is in the plaintiff, a defense grounded on an equitable title and right of possession under it is an equi- table defense, is new matter, and must be specially pleaded.^ Such defense does not question the plaintiff's facts, but ques- tions his apparent right by reason thereof. The interposition of an equitable defense in such case does not convert a legal action into an equitable one ; ^ and an issue upon such new matter, if asserted as a mere defense, would be triable to a jury. But if the defendant goes fur- ther, and asks affirmative equitable relief, — if, for example, in ejectment, the defendant alleges that the land involved was, by mistake, described in a deed from him to plaintiff, and asks a correction of the deed, — such claim is properly addressed to the chancery side of the court. 240. Confession and Avoidance — Giving Color. — The answer of new matter in bar is essentially a plea in confes- sion and avoidance ; ^ and like such pleas, it must give color ; that is, it must admit, expressly or tacitly, that, independent^ ly of the matter disclosed in the answer, the plaintiff would have a right of action.* If, in an action on contract, the de- fendant pleads infancy, he tacitly admits the contract, in avoid- ing its obligation. If such answer does not give color, there is no place for the new matter; for example, a plea of pay- ment must admit a debt ; otherwise, there is no place for the payment. An answer of new matter in bar, that does not give color, can not amount to more than a denial, and does not require a reply .^ ^ Powers V. Armstrong, 36 O. S. ter does not stand in the -way of a 357. defense of denial in the same an- * Webster v. Bond, 9 Hun, 437 ; ewer. Siter t. Jewett, 33 Cal. 92 ; Wisner v. Ocumpaugh, 71 N. Y. Post, 262. 113. 6 ^bb. PI. Br. 639 ; Sylvis v. Syl- » Bauer v. Wagner, 39 Mo. 385 ; vis, 11 Colo. 319 ; Netcott v. Por- State V. WiUiams, 48 Mo. 210. ter, 19 Kan. 131 : Englev. Biigbee, < Ante, 71 ; Bliss PI. 340. Tacit 40 Minn. 492 ; State v. Williams, admission in a defense of new mat- 48 Mo. 210. I § 241 ORDERLY PARTS OF PLEADING. - 218 The common-law rule is very strict in its requirement that a plea of new matter in avoidance shall confess, without qualification, the matters stated in the declaration.^ In pleas of the statute of limitations, of infancy, and the like, it is common to refer to the right of action stated in the declara- tion as the " alleged," or the " supposed," right of action ; and these expressions are held not to qualify the confession,* the word "supposed " meaning no more than " alleged." But such use of the phrases " if any," or " if any such there be," renders the confession hypothetical, and vitiates the plea.^ But this rule has no application to dilatory pleas, for they do not relate to the right of action.* 241. Partial Defenses — Common-law Rule. — At com- mon law, the rule seems formerly to have been that the de- fense, whether by denial or by avoidance, should answer the whole declaration. The defendant might plead several de- fenses to different parts of the declaration, but the entire de- fense pleaded was required to answer the whole complaint ; and if it answered a part only, it was considered as no plea, and the plaintiff was entitled to a judgment by nil dicit.^ The severe logic of the common-law system in its earlier stages demanded the perfect issue of a complete denial, and re- garded any state of the record admitting the plaintiff's right to recover as presenting no issue. Under this rigid devotion to theory, and to logical forms, a defendant could avail him- self of a partial defense, such as part payment, or facts in mitigation, only by pleading the general issue, or a special plea answering the whole complaint. In later time, the courts allowed a partial defense, and sus- tained a plea answering any material and severable part of the declaration, such as part payment, or part performance, 1 Taylor v. Cole, 3 Term Rep. & E. 489 ; Conger v. Johnston, 2 292 ; Griffiths v. Eyles, 1 Boss. & Den. 96 ; McCormick v. Pickering. Pull. 413. 4 Comst. 276. 5 Gale V. Capem, 1 Ad. & Ell. * Parke, B. , in Eavestaff v. Rug- 102 ; Eavestaff v. Russell, 10 M. & sell, 10 M. & W. 365. W. 365. " Gould PI. vi. 102 et seq. ; Pom. 3 Gould V. Lasbury, 1 Cromp. M. Rem. 607, 693. «fe R. 254 ; Margetts v. Bays, 4 A. I <2 9 THE ANSWER. §242 as a good defense jiro tanto^ leaving the plaintiff entitled to judgment for the unanswered part, as by nil dicit. Concur- rently with this relaxation of the former rule requiring every plea to answer the whole declaration, there arose the require- ment that a plea answering only a part of the complaint should profess to answer only such part ; and if a plea answering only a part of the complaint assumed to answer the whole, it was bad on demurrer.^ And under this rule, every plea to the action was taken as extending to the whole declaration, unless expressly limited to a part thereof.^ 242. Partial Defenses Under the Reformed Proced- L4^ '^ lire. — The new procedure allows l!he defendant to plead, ^-^-^t^ in one answer, as many grounds of defense, whether com- ^1-a^um-<^ plete or partial, as he may have, subject only to the require- '^-^ *<''^^ ment that they must not be inconsistent, and that each shall ^--<-^ be separately stated and numbered ; and where a partial Aq- touMjctZt fense is pleaded, it must be designated and pleaded as par- dJtluju^^ tial.* If a partial defense is pleaded as a defense to the whole ^ — - complaint, it will be insufficient on demurrer.^ This remnant of the old system is at variance with the true spirit and purpose of the reformed system, but it is well established by the authori- ties. And under the new system, as under the old, a defense not designated and pleaded as partial, will be taken as in- tended for a complete defense ; and if it can be operative only as a partial defense, it will be vulnerable to demurrer. But this rule does not apply to an answer simply pleading a set-off less than the plaintiff's demand, because a set-off is not strictly a defense.^ It has been held that an answer expressly limited to a part 1 1 Chit. PI. 523 ; SomerviUe v. Nickerson, 11 Oreg. 382 ; Ward v. Stewart, 48 N. J. L. 116. PoLk, 70 Ind. 309. » 1 Chit. PI. 524 ; Gould PI." vi. ^ Reynolds v. Roudabush, 59 Ind. 104 ; Gebrie v. Mooney, 121 111. 483 ; Peck v. Parchin, 52 Iowa, 46 255 ; Orb v. Coapstick, 136 Ind. McMahan v. Spinning, 51 Ind. 187 313. McLead v. Ins. Co., 107 Ind. 394 3 Gould PI. vi. 104. Thompson v. Halbert, 109 N. Y. * Fitzsimmons V. Ins. Co., 18 Wis. 329; Fitzsimmons v. Ins. Co., 18 234 ; Davenport Co. v. City of W^is. 234. Davenport, 15 Iowa, 6 ; Webb v. ^ Mullendore v. Scott, 45 Intl. 113 ; Curran v. Curran, 40 Ind. 473. §§243-244 ORDERLY PARTS OF PLEADING. 220 of the complaint is not bad because it in fact goes to the whole of the complaint.^ And it has been held that in an action for equitable relief an answer denying, or avoiding, some material part of the plaintiff's case, so as to abridge or modify the right to relief, is good as against a demurrer, though it is not a complete defense to the action.^ Many of the codes provide that when any distinct and severable part of the plaintiff's demand is not put in issue by the answer, he may have judgment for such part, without prejudice to his rights as to parts of his demand that are dis- puted. Under such provision, judgment may be entered as by nil dicit for the admitted part of the plaintiff's claim, and the action proceed to trial as to the disputed part.^ 243. Partial Defense and Special Denial Distin- guished. — The partial defense must not be confused with the special denial. The latter is a specific traverse of some par- ticular fact or facts alleged in the adverse pleading ; and if the particular matter so traversed is essential to the cause of action, the special denial is a complete defense. If a com- plaint for breach of warranty allege, as it must, the warranty and a breach thereof, the defendant may deny only the mak- ing of the warranty, or he may traverse only the alleged breach ; either would be a special denial, and either would be a full and complete defense to the action. A partial defense always leaves in the plaintiff a right of recovery. It may be asserted by mere denial, or by pleading new matter. If asserted by denial, it must be by special denial, for a general denial is a complete defense, leaving no right of recovery in the plaintiff. 244. How New Matter in Defense to be Pleaded. — The answer of new matter should contain only operative facts, and these facts of the answer, like those of the complaint, should be stated in ordinary and concise language, and with the same fullness, exclusiveness, and certainty, required in » Cooper V. Jackson, 99 Ind. 566. 537 ; Benson v. Stein, 34 O. S. 294. » Peebles v. Isaminger, 18 O. S. Cf. Weaver v. Carnahan, 37 O. S. 490. 363. "Moore v. Woodside. 26 O. S. 221 THE ANSWER. §244 tVie statement of facts constituting a caus,e of action in the ooTiiplaint. Evidential facts, conclusions of law, inferences, and aiguments are out of place in any pleading. A few illustrative cases will explain these requirements. That the plaintiff is not the real party in interest, is a de- fense of new matter, and is not admissible under a denial.^ But the mere statement that " the plaintiff is not the real party in interest " is a legal conclusion. The o^jerative facts which give rise to this conclusion should be stated.^ And the allegation that some person other than the plaintiff is the real party in interest, without stating the facts which support that conclusion, is equally faulty.^ In a defense of fraudu- lent representation, or deceit, the same operative facts should be stated that are requisite in a complaint for deceit ; ■* to wit, the representation, its falsity, the scienter oi the plaintiff, his intent, and the defendant's reliance ; and it must appear, "from facts alleged, that the representation was as to a ma- terial matter, that the defendant had a right to rely upon it, and that he was thereby misled to his injury.^ An allega- tion that the defendant was induced to make the engage- ment sued on, " by the fraud of the plaintiff," states a con- clusion, and is insufiScient as a defense.^ So, an allegation that the defendant was " induced by coercion " to execute the instrument sued on is insufficient.'^ The facts constitut- ing the duress should be stated, so that the adverse party ' Smith V. HaU, 67 N. Y. 48 ; 52 N. Y. 621 ; Ry. Co. v. Super- Hereth v. Smith, 33 Ind. 514. visors, 37 Cal. 354 ; Capuro v. Ins. » Shafer v. Bronenberg, 42 Ind. Co., 39 Cal. 123; Shook v. Singer 89, 90 ; Cottle v. Cole, 20 Iowa, 481. Mfg. Co., 61 Ind. 520. ^ Raymond v. Pritchard, 24 Ind. « Ham v. Greve, 34 Ind. 18, 21 ; 318 ; Hereth v. Smith, 33 Ind. 514 ; Hale v. Walker, 31 Iowa, 344, 355 ; Swift V. Ellsworth, 10 Ind. 205. McMurray v. Gifford, 5 How. Pr. * King V. Eagle, 10 Allen, 548 ; 14. Cf. King v. Davis, 34 Cal. 100, Wilder v. DeCon, 18 Minn. 470 ; holding that after issue and trial Joest V. WiUiams, 42 Ind. 565. upon such answer, without objec- * Keller v. Johnson, 11 Ind. 337 ; tion, it will be sustained. People V. San Francisco, 27 Cal. ' Richardson v. Hittle, 31 Ind. 656 : Van De Sande v. Hall, 13 119 ; Ins. Co. v. McCormick, 45 How. Pr. 458 ; Simmons v. Kayser, Cal. 580. 11 Jones & S. 131 ; Lefler v. Field, §§ 245-246 ORDERLY PARTS OF PLEADING. 222 may know what facts he is to meet, and may have their legal sufficiency determined. 245. Denials and New Matter in One Defense. — It is sometimes necessary that a denial be qualified or explained by the introduction of new matter therewith, in order that the materiality of the denial shall appear ; and it is some- times necessary that affirmative matter be accompanied by a denial, in order that the defensive character of the new mat- ter shall appear. In such cases, the common-law procedure allows denial and new matter to be coupled in one defense, called the " special traverse." ^ And this may, for the same reasons, be done under the Reformed Procedure ; for in no other way can certain defenses be made available. If one be sued as trustee, on a demand that, if it did not grow out of a trust relation, would be subject to the bar of the statute of limitations, he may, in one defense, both deny the trust and assert the statute. In no other way could the statutory bar be asserted. In such defense, the denial is simply to make way for the statute, and the entire defense is simply a plea of the statute. The denial is used as matter of inducement, and can not be treated as making an issue, except for the purpose of introducing the plea of the statute.^ In an action to recover the agreed price of property sold, the defendant may, in one defense, deny that the agreed price was that stated by plaintiff, allege the true price agreed on, and full payment thereof. In such case, it requires both the denial and the affirmative facts to assert the defense of payment in full, and the entire defense is simply that of payment. To allege simply that the agreed price was so much, and that it has been paid, would be an argumentative traverse as to the price. ^ ni. OF COUNTER-DEMANDS. 246. Recoupment of Damages. — In the early and more technical period of the common law, a defendant holding an ' Ante, 65. 66. » Post, 358. ' Colglazier v. Colglazier, 117 Ind. 460, 464. 223 THE ANSWER. §247 affirmative demand against the plaintiff could not assert it in a pending action, but was required to prosecute it in an in- dependent suit ; and after judgment in both cases, the chan- cellor miglit decree a set-off between the judgments. This was on the ground that such right in the defendant is not strictly a matter of defense to the plaintiff's claim. A de- fense is a mere negation ; it controverts either the plaintiff's right to maintain the particular action, or his right to recover. A counter-demand questions neither the jDropriety of the suit, nor the right of action, and so was regarded as not a fit matter for plea. But it sometimes happened that a defendant would have a right of action against the plaintiff, growing out of the mat- ters upon which the plaintiff's claim was based in the declar- ation ; and the evident economy and fairness of requiring the plaintiff to account, in his own action, for his own disre- gard of the contract which he sought to enforce, led to tlie practice of allowing the defendant to reduce or extinguish the plaintiff's claim by asserting his correlated right. For example, if in an action to recover for goods sold and de- livered, the defendant had a claim against the plaintiff for defect in quality or quantity of the goods, he was allowed, upon notice to the plaintiff, to set up such claim ; not as a defense to the plaintiff's demand, but to reduce the amount of his recovery.! This was called recoupment,, from the French recouper, to cut again. It is not a defense, but a reduction of damages ; and is not the subject of plea, but it is to be had under a general denial and notice. As stated by Bronson, J., " It is a matter that is never pleaded in bar. It is in the nature of a cross-action. The right of the plaint- iff to sue is admitted ; but the defendant says he has been injured by the breach of another branch of the same contract on which the action is founded, and claims to stop, cut off, or keep back, so much of the plaintiff's damages as will satisfy the damages sustained by the defendant." ^ 247. Set-oif in Equity. — While the scope of the action ' Upton & Co. V. Julian & Co., 7 * Nichols v. Dxisenbury, 2 N. Y. O. S. 95. 283. u §248 ORDERLY PARTS OF PLEADING. 224 was thus enlarged by the doctrine of recoupment, its opera- tion was still confined to the particular subject of litigation that gave rise to the suit ; and cross-demands arising out of independent contracts, and involving an examination of separate transactions, could not be settled in one action. But the English Court of Chancery, to prevent circuity of action, and to avoid multiplicity of suits, adopted from the civil law a principle there known as " compensation," ^ whereby parties indebted to each other, under independent contracts, may in one action set off their respective demands, and prevent recovery except for the excess of the larger over the smaller demand. This right of set-off, originating in equity, was afterwards conferred upon litigants in the com- mon-law courts of England by statute.^ This just and economic doctrine that cross-demands may be settled in one action, a doctrine in the interest of indi- vidual justice and of public policy, but a doctrine that slowly made its way to favor, is to be found, in some form or other, in perhaps every state of the Union. Under the Reformed Procedure it has been extended and amplified, and is made available to a defendant by means of a counter-claim, set-off, or cross-complaint. 248. The Counter-claim. — The answer, as has 'already been shown, may contain (1) matters of defense, and (2) grounds for affirmative relief to the defendant. The_matters of defense are either_demals^r new matter^ in^ avoidance ; the grounds for affirmative relief that may be asserted in the answer are, co unter-claim and^et^off. In addition to these, a defendant may have affirmative relief by cross-complaint ; but this is not properly a part of the answer, though often inserted therein. There is a clear distinction between new matter as a de- fense, and new matter as ground for affirmative relief. In the first place, a separate rig ht of action i n the defendant is the essence of a counter-demand, while new matter constitut- ing a mere~3refense need not constitute a right of action in » Haynes' Outlines of Equity, 153, » 2 Geo. II., c. 22, A. D. 1729. 154,158; Bisph. Eq.Jur. 327, in nota. 225 THE ANSWER. § 249 the defendant.^ In the next place, a counter-demand does not necessarily attack the claim of the plaintiff, but, admit- . ting the plaintiff's right of action, it simply sets up an l-^c^Li ^^ affirmative demand ; on the other hand, a defense of new t, matter attacks the plaintiff's right of action. The one ^■^^^*-»-'"-* admits the right of the plaintiff to recover, while the other ^''^^*''^'*"* admits the facts by him stated, but questions the right to *'*"^ '^^■'^ recover. In an action to recover the price of property sold, ^-^s r-^ an answer of payment is a defense of new matter ; it admits /^clJ^<.^ the facts stated by the plaintiff, but asserts a new and cor- ]^i^ related fact which shows that, notwithstanding the facts , / ' stated by the plaintiff, he has no right of action. But if in such case the defendant allege a warranty, and demand ^^ r^ damages for breach thereof, he questions neither the facts Ccim/u^ stated by the plaintiff, nor his right of action by reason there- .7^^ ^ of ; he asserts a separate right of action in himself, growing (^t^^^^ out of the same contract relied on by plaintiff. Such cross- g^^ ^TZ^^^ demand is called a counter-claim. T^ 249. The Counter-claim, Continued. — A counter-claim ' is a right of action existing in favor of a defendant and '-*^ ** ^ against a plaintiff, and arising out of the contract or transac- ^ /^ tion which is the foundation of the plaintiff's claim, or ,^/ connected with the subject of the action. This definition 4^^ embraces three classes of counter-demands ; (1) those arising ' ^^^ out of the contract upon which the plaintiff has based his ^ action, (2) those arising out of the transaction upon which ^'^^^^Ij^ ^ the action is based, and (3) those connected with the suhj ecfi-Q^^^ ^ of the action. These three classes of counter-demands all bear ry « > a relation to the plaintiff's demand, and they are distin- A o^ guished by the varying degrees of that relation. The [\^ counter-claim of the new procedure is of the nature of re- ■' F- ^ coupment in the common-law procedure, but it is wider in ^ T'' its operation. By recoupment, a defendant could only reduce /> , or defeat the plaintiff's recovery ; he could not himself re- cover against the plaintiff. If the plaintiff wholly failed to ' '' \ establish his claim, there was nothing to recoup ; and if the ^^ defendant's demand exceeded that of the plaintiff, he could , ^""^ 1 Walker V. Ins. Co., U3 N. Y. 167. / ^i " r g 250 ORDERLY PARTS OF PLEADING. 226 not, by recoupment, recover the excess. But upon a counter- claim, the defendant may have affirmative relief, irrespective of the fate of the plaintiff's claim.^ Counter-claim is broader than recoupment in that the counter-demand asserted by it may be an equitable right ; and an equitable right may be so asserted when the plaintiff's demand is purely legal.^ A counter-claim is substantially a cross-action by the de. fendant against the plaintiff, based upon a right connected with the ground of the plaintiff's action, and upon which the defendant might maintain a separate action against the plaintiff ; and when a counter-claim is pleaded, the defend- ant becomes, in respect thereof, an actor^ and each party is at once a plaintiff and a defendant in the same action.^ It follows, that the matter set up as a counter-claim must constitute, in substance and in form, a cause of action in favor of the defendant against the plaintiff; ^ and it must be such as the court wherein it is asserted would have juris- diction of in an original action upon it.^ A claim not yet due can not be set up as a cross-demand, because there is no right of action thereon.^ If a demand of a character not proper for counter-claim be so asserted, the remedy is gener- ally by demurrer. 250. Counter-claim — Same Contract. — A counter- claim of the first class can be pleaded only in an action 1 By statute in New York, and Duer, J., in Vassearv. Livingston, by judicial limitation in Wisconsin, 13 N. Y. 248. Cf. Bank v. Weyand, no counter-claim is to be allowed 30 O. S. 126. that does not, in some way, qualify, ^ Cragin v. Lovell, 88 N. Y. 258 ; diminish, or defeat the plaintiff's Mfg. Co. v. Colgate, 12 O. S. 344 ; recovery. N. Y. Code, 501 ; Die- Lyman v. Stanton. 40 Kan. 727. trich V. Koch, 35 Wis. 618. This is « Martin v. Kunzmuller, 37 N Y. in disregard of the principles upon 396 ; Wells v. Stewart, 3 Barb. 40 ; which cross-demands are allowed Walker v. McKay, 2 Met. (Ky.) to be asserted. 294. But see Morrow v. Bright, 20 « Currie v. Cowles, 6 Bosw. 453 ; Mo. 298 ; and Ky. Flour Co. v, Morgan v. Spangler, 20 O. S. 38 ; Bank, 13 S. W. R. 910 ; where a Ry. Co. V. Ry. Co., 48 Barb, claim against an insolvent assignor, 355. not yet due, is allowed as an equi- ' Francis v. Edwards, 77 N. C. table set-oflf against the assigned 271 ; Bruck v. Tucker, 42 Cal. 346. claim. * Bruck V. Tucker, 42 Cal. 346 ; 227 THE ANSWER. § 250 founded on contract, and must be a riglit of action in favor of the defendant and against the plaintiff, arising out of the contract which is the foundation of the plaintiff's claim. So little difficulty will be experienced in determining whether the defendant's claim arises out of the contract upon which the plaintiff's claim is based, that this class of counter-claims may be disposed of by simply referring to a few illustrative cases. In an action by lessor against lessee, to recover rent stipu- lated for in a lease, the lessee may set up a counter-claim for breach by the lessor, of any covenant of his contained in the lease.^ In an action upon an implied agreement to pay for work done, a breach of the implied agreement that the work should be skillfully done, may be made the subject of a counter-claim for damages ; ^ and so, if the work be done under an express contract.'^ In an action to recover the pur- chase price of property sold, breach of warranty, or fraud, may be pleaded as a counter-claim.'* A counter-claim for breach of warranty arises out of the contract which is the foundationof the plaintiff's claim, and clearly falls within the class now under consideration ; but a counter-claim for fraud more properly falls within the class next to be considered. 1 Orton V. Noonan, 30 Wis. 611 ; was in no sense a counter-claim for Cook V. Soule, 56 N. Y. 420 ; Myers damages. The articles sold were V. Burns, 35 N. Y. 269 ; Coleman two chandeliers, to be put up in V. Bunce, 37 Tex. 171 ; Mayor v. defendant's house. They were un- Mabie, 13 N. Y. 151 ; Com. v. Todd, skillfully put up ; and on this QBush, 708 ;Block V. Ebner, 54 Ind. ground, without questioning the 544 ; Green v. Bell, 3 Mo. App. 291. intrinsic or market value of the ' Eaton V. Woolly, 28 Wis. 628. articles, the defendant sought to ^ Bishop V. Price, 24 Wis. 480. reduce the plaintiffs claim. Denio, Cf. Moffet V. Sackett, 18 N. Y. 522, J., in a dissenting opinion, suggests where proof that articles sold were that this was a defense of new not of the kind and quality con- matter, to wit, the negligence of tracted for was admitted under an plaintiff in doing the wnr-'s and allegation that the goods were not should have been so pIe«id-HJ. worth more than a named sum, be- * Timmons v. Dunn, ^^ O. S. 680 ; ing less than that sued for, and Howie v. Rea, 70 N. C 5"9 ; Hoffa that such less sum had been paid. v. Hoffman, 33 Ind. 172 ; Bounce Tlie court held that such claim was v. Dow, 57 N. Y. 16 ; Love v, Old- a mere defense, in diminvition of ham, 22 Ind. 51. the value of the goods, and that it §251 ORDERLY PARTS OF PLEADING. 228 251. Counter-claim — Same Transaction. — A counter- claim of the second class is one arising out of the transaction which is the foundation of the plaintiff's claim. Such coun- ter-demand differs from one of the former class in this, that it may be asserted in an action not founded on contract, and that it need not itself arise out of contract. The term " transaction " is broader and more comprehensive than "contract." A contract is a transaction ; but a transaction, while it may embrace a contract, may include its incidents as well, and it may relate to matters entirely in tort. The following cases will illustrate this class of counter-claims. In an action on a bond to indemnify the plaintiff, a coun- ter-claim for damages resulting from the fraud of plaintiff in obtaining the bond may be asserted.^ In an action by mort- gagee against mortgagor upon a note and mortgage given for the purchase-money for the premises mortgaged, the defendant may set up a' counter-claim for damages by reason of the fraud of the mortgagee, in concealing from him mate- rial facts as to the situation and extent of the premises.^ And in such action the mortgagor may set up, by way of counter-claim, an unpaid assessment on the land, being an incumbrance covenanted against in his deed from the mort- gagee, and have the amount of it, with interest, deducted from the unpaid purchase-money ; ^ or he may set up a counter-claim for damages for fraud practiced by plaintiff in the sale to defendant.* Where the action is for breach of contract of sale, the defendant may set up, as a counter- claim, a rescission of the contract on the ground of fraud or mistake.^ In an action on a promissory note, a counter- claim maybe interposed for the wrongful conversion of prop- erty pledged as collateral security for the payment of the note.^ And where a note sued on was given for a balance found due on settlement, the defendant may, by way of counter-claim, show a mistake in the account.'^ ' Thompson v. Sanders, 118 N. ■• Allen v. Shackelton, 15 O. S. Y. 252. 145. ' Pierce v. Tiersch, 40 O. S. 168. ' Bruce v. Burr, 67 N. Y. 237. » Craig V. Heis, 30 O. S. 550. • Ainsworth v. Bowen, 9 Wis. 348. ' Garrett v. Love, 89 N. C. 205. 229 THE ANSWER. §252 In pleading a counter-claim of this class, it must be made to appear that it arose out of the same transaction out of which plaintifif's claim arose ; but a general allegation that it did so arise is not sufficient, it must appear from facts stated.^ 252. Counter-claim— Connected with Subject of Ac- tion. — Counter-claims of the third class are those connected with the subject of the action. As before stated, the three classes of counter-claims are distinguished by the varying degrees of their relation to the plaintiff's demand ; and it will be seen that counter-demands of this third class bear a more remote relation to the plaintiff's action than do those of the other two classes. It is not necessary that a demand of the defendant against the plaintiff, to come within this class, shall be a demand growing out of contract, nor must it arise out of the transaction upon which the plaintiff's claim is based ; it is requisite only that it shall be connected with the subject of the plaintiff's action. The " subject of the action " means, in this connection, the thing in respect to which the plaintiff's right of action is as- serted, whether it be specific property, a contract, a threatened or violated right, or other thing concerning which an action may be brought and litigation had.^ Care must be taken not to confuse the " subject of the action " with the " subject- matter of the action." ^ There is some contrariety in the decisions, as to the meaning of the phrase under consider- ation, and as to what will bring a counter-demand into such relation to the subject of the action as to make it " connected " therewith ; and the courts have not always clearly dis- tinguished between counter-claims which arise out of the transaction on which the plaintiff's claim is founded, and those which are connected with the subject of the action. In an action to restrain the use of a trade-mark, the defendant may, by counter-claim, assert his ownership there- of, and ask that the plaintiff be enjoined from using it. Such 1 Brown v. Buckingham, 21 How. Cornelius v. Kessel, 58 "Wis. 237. Pr. 190. Cf. Gilpin v. Wilson, 53 Cf. Simpkins v. Ry. Co., 20 S. C. Ind. 443. 269. « Mfg. Co. V. Hall, 61 N. Y. 226 ; » Ante, 181, note. §253 ORDERLY PARTS OF PLEADING. 230 right asserted by the defendant is connected with the subject of the action.^ So, in an action for freight, a counter-chxim for loss occasioned by the wrongful delay of the carrier may be pleaded.^ And in an action to recover goods, or to restrain their sale, the goods being the subject of the action, the defendant m;iy, by counter-claim, allege property in the goods and ask damages for the plaintiff's interference therewith.^ Where the plaintiff sued for injury to his boat, caused by a break in defendant's canal, the defendant was allowed to ask, by way of counter-claim, damages for the break in the canal caused by the plaintiff's negligence* In an action by a lessor for rent, the tenant may assert a counter-claim for wrongful interference by the lessor with liis enjoyment of the leased premises ; ^ provided, however, that the interference amounts to an eviction, entire or partial. A mere trespass by the lessor is not a breach of the contract for the sole and uninterrupted use and enjoyment, and damages therefor may not be recouped or set off in an action for rent ; ^ the rule being, that where the wrongful act of the lessor has deprived his lessee of the use and occupancy of the premises, in whole or in part, he is relieved from payment of rent, and may set up his eviction against a demand for the rent; but if he remains in full possession, he can not counter-claim for an act that simply renders the use less beneficial.'' A lessee can not counter-claim for injury caused by change of the street grade, unless covered by a covenant in the lease.^ /^ 253. Cross-complaint. — The cross-demands which have been described as counter-claims are demands existing in favor of a defendant and against the plaintiff in the action. It is not the office of counter-claim to assert a right, or demand relief, against a co-defendant. In equity procedure, a 1 Mfg. Co. V. Hall, 61 N. Y. 226. Morgan v. Smith, 5 Hun, 220 ; 2 Elwell V. Skiddy, 77 N. Y. 282. Tinsley v. Tinsley, 15 Mon. B. 458. Cf. Fisk V. Tank, 12 Wis. 276. « Levy v. Bend, 1 E. D. Smith, 3 Ashley V. Marshall, 29 N. Y. 494; 169 ;' Boreel v. Lawton, 90 N. Y. Thompson v. Kessell, 30 N. Y. 383. 293 ; Bartlett v. Farrington, 120 * McArthur v. Canal Co., 34 Wis. Mass. 284. 139. ' Dyett v. Pendleton, 8 Cow. 727 ; * Goebel v. Hough, 26 Minn. 252; EJgerton v. Page, 20 N. Y. 281. Blair v. Claxton, 18 N. Y. 529 ; « Gallup v. Ry. Co., 65 N. Y. 1. 231 THE ANSWER. §253 defendant might obtain relief against a co-defendant by filing a bill of his own, called a cross-bill. A similar practice obtains under the new procedure ; and in some of the states express provision is made for a cross-complaint, whereby a defendant may ask relief against any of the other parties, touching the matters involved in tlie complaint. The relief sought by cross-complaint must grow out of, or be connected with, the subject-matter of the action, or must affect property to which the original action relates ; ^ new and distinct matters not connected with the original action can not be introduced by cross-complaint. In an action on a written instrument, the defendant may, by cross-complaint, allege a mistake in the writing, and ask to have it reformed so as to show the real transaction between the parties. As written, the instrument may show a right of action in the plaintiff ; as reformed, it may show that he has no such right. The writing being the best, and therefore the exclusive, evidence of the transaction, the true defense can not be proved until the instrument has been reformed ; and for this reason, the defendant's cross-action for equitable relief should be first tried. In ejectment, if the plaintiff holds the legal title, and the defendant has an equity that entitles him to possession, he may assert his equity, which is a good defense without the aid of affirmative relief ; but if he holds under a contract that entitles him to a conveyance from the plaintiff, but not to possession without such con- veyance, he may, by cross-complaint, ask a decree for a conveyance, and thereby maintain his real defense — a right to remain in possession .^ Strictly, a cross-complaint should seek relief only against a co-defendant ; and in analogy to the practice in equity, a cross-complaint should be separate and distinct from the answer. But it is common practice to assert a demand by a defendant for affirmative relief " by way of cross-complaint," iHurdv. Case, 32 111. 45; Cris- v. Reynolds, 10 Bush, 286; Crab- man v. Heiderer, 5 Colo. 589; Daniel tree V. Banks, 1 Met. (Ky.) 484; V. Morrison, 6 Dana, 186 ; May v. Harrison v. McCormick, 69 CaL Armstrong, 3 Marsh, J. J. 262 ; 616. Cross V. Del Valle, 1 Wall. 5 ; Royse » Post, 257 et seq. § 254 ORDERLY PARTS OF PLEADING. 232 and to unite defenses and cross-demands, separately stated and entitled, in the same pleading ; though matter that is purely defensive, and matter used only as ground for affirmative relief, ought not to be coupled in one statement.^ Whether process should be issued on a cross-complaint, is a question of practice, and must depend upon the nature and the cir- cumstances of the particular case, and may be governed by statute. 2 254. Set-off Under the New Procedure. — The sev- eral cross-demands that have been considered, and that may be set up by way of counter-claim or by way of cross-com- plaint, must, in their nature, bear some relation to the plaint- iff's action. There remains another class of cross-demands to be described. When the plaintiff's action is founded on contract, the defendant may set up against the plaintiff any right of action arising also out of contract, or ascertained by the decision of a court, and existing at the commencement of the action. Such right, so asserted, is termed a set-off. It differs from counter-claim and cross-complaint in that the right so asserted need not be in any way connected with, or bear any relation to, the plaintiff's claim. Both rights of action must arise out of contract, but need not arise from the same contract. In many of the states set-off is included under the term counter-claim, and the term set-off is not employed ; but the use of this term is to be favored, because, from its etymological meaning, and by its use in equity, and in the English statutes, to designate a disconnected demand, it has come to impart a distinction that ought not to be lost sight of in our classification, and in our legal terminology. The right of set-off is not limited to demands growing out of contract between the parties to the action ; the defendant may set off a demand assigned to him by a third party, if assigned before the action is commenced. It is a general principle of law, that the assignment of a non-negotiable thing in action does not affect any right of set-off, or defense, existing at the time of the assignment, or before notice there- ' McMannus v. Smith, 53 Ind. '■< Tucker v. Ins. Co., 63 Mo. 588. 211. 233 THE ANSWER §254 of. And the change in the practice, introduced by the new procedure, requiring the assignee of a right in action to sue thereon in his own name, has not affected the rights of the parties in this regard ; the debtor may, now as before, in an action by an assignee, set up any defense or counter-demand existing against the original creditor at the time of the assignment, or acquired after the assignment, and before notice thereof. But the assignment of a non-negotiable demand arising on contract, defeats a set-off of an independent cross-demand on which a right of action had not then accrued.^ And this will be the effect of such assignment, though the assignee be at the time insolvent.^ In an action by the assignee of a chose in action, the defendant can not, on a set-off that accrued against the assignor, have judgment against the plaintiff for any excess thereof. Some courts have held that unliquidated damages, arising out of contract, may be the subject of set-off,^ while others hold that set-off must be restricted to liquidated demands.* Perhaps the weight of authority, and the better reason, are in fayor of allowing unliquidated damages to be made the subject of set-off, in the absence of statutory provision to the contrary.^ A right of action founded purely in tort can not be pleaded as a set-off ; ^ though where the defendant might, in an independent action, waive the tort and sue as upon contract, he may, in the same way, assert his demand by way of set-off.''' In an action on contract, the defendant may in 1 Fuller V. Steiglitz, 27 O. S. 355. Boyer v. Clark, 3 Neb. 161 ; Shrop- » Myers v. Davis, 22 N. Y. 489. shire v. Conrad, 2 Met. (Ky.) 143. 3 Curtis V. Barnes, 30 Barb. 225 ; ' Swan PI. 264 ; Pom. Rem. 798 Parsons v. Sutton, 66 N. Y. 92 ; Bliss PI. 378, et seq. ; Max. PI. 547 Bidwell V. Madison, 10 Minn. 13 ; « Devries v. Warren, 82 N. C. 356 Transp. Co. v. Boggiano, 52 Mo. Bell v. Lesbini, 66 How. Pr. 385 294; Stevens V. Able, 15 Kan. 584; Trotter v. Comrs., 90 N. C. 455 Lignot V. Redding, 4 E. D. Smith, Shelly v. VarnarsdoU, 23 Ind. 543 285 ; Needham v. Pratt, 40 O. S. Valentine, J. , in Berry v. Carter, 186. 19 Kan. 140 ; Gantt, J., in Boyer v, * Ricketson v. Richardson, 19 Cal. Clark, 3 Neb. 161. 330 ; Frick v. White, 57 N. Y. 103 ; ' Brady v. Brennan, 25 Minn. 210. Johnson v. Jones, 16 Mo. 494 ; §255 ORDERLY PARTS OF PLEADING. £34 this way assert a claim for property wrongfully converted by the ijlaintiff,^ or for property tortiously taken,^ or for pastur- ing plaintiff's cattle, wliere the liability arose from trespass.* 255. Equitable Set-otis. — There is a class of cross- demands available to a defendant only in equity, and known as " equitable set-offs." Such, for example, is the case of mutual credits based by each upon the fact of the other's indebtedness ; or a joint demand against an insolvent plaint- iff and another. In such cases, the manifest injustice of allowing full recovery to the plaintiff gives rise to an equity in the defendant to insist on a set-off, notwithstanding he has no such right at law.* It has been held that where an insolvent debtor who makes an assignment for the benefit of creditors is indebted to a bank with which he has money on deposit, the bank may apply the deposits as a credit on its debt, although the debt had not matured at the time the assignment was made.^ And where one entitled to share in the distribution of a trust fund, is indebted to the fund, and is insolvent, his indebted- ness may, in equity, be set off against his distributive share ; and the right of set-off will not be defeated by the assign- ment of his claim, though made before the amount of his indebtedness, or of his distributive share, is ascertained.^ Where an insolvent creditor transfers an unmatured claim arising upon contract, and the debtor holds a similar claim against such insolvent assignor, then due, he may set it off against the assignee, after the maturity of his claim. '^ This rule is based upon considerations of equity, and is to protect him whose claim is due from the hardship of losing it while he is compelled to pay his own debt, assigned before due.^ ' Gordon v. Bruner, 49 Mo. 570 ; Bank v. Hemingray, 34 O. S. 381 ; Colt V. Stewart, 50 N. Y. 17. Barbour v. Bank, 50 O. S. 90. « Eversole v. Moore, 3 Bush, 49 ; ' Ky. Flour Co. v. Bank, 90 Ky. Haddix v. Wilson, 3 Bush, 523. 235. 3 Norden v. Jones, 33 Wis. 600. ^ King v. Armstrong, 50 O. S. * 2 Sto. Eq. Jur. 1435 to 1437b ; 222. Bisph. Eq. 327 ; BHss Pi. 383 ; Baker ' Armstrong v. Warner, 49 O. S. V. Kinsey, 41 0. S. 403 ; Gay v. Gay, 376. 10 Paige, 369 ; Lee v. Lee, 31 Ga. » Pom. Rem. 163. 26 ; Jeffries V. Evans, 6 B. Mon. 119; 235 THE ANSWER. § 256 A defendant, sued on his promissory note indorsed to the plaintiff after maturity, may, in equity, set off an overdue joint note made by the plaintiff and another, both of whom are insolvent. And if such joint note be at the time merged in a joint judgment against the makers, such judgment may be so set off.^ The merger of the note in the judgment is not so perfect as to preclude the judgment creditor from asserting his demand as an equitable set-off. And it may be said that, generally, equity will enforce the right of set-off, so far as mutual demands equal each other, if they have grown out of the same or connected transactions, or if one formed a consideration for the other, and the party against whom the right is asserted is insolvent. These equitable set-offs may be asserted under the new procedure, which has affected methods, but not rights. 256. General View of Cross-demands. — It is the policy of the new procedure to enable the parties to settle, in one action, all claims existing between them, so far as this may be done without inconvenience to the parties, or prejudice to their rights. The provisions for asserting a cross-demand — by way of counter-claim, cross-complaint, and set-off — confer a privilege, but do not impose an obligation. A defendant may, notwithstanding these provisions, withhold his cross- demand, and enforce it in a separate action ; though in some jurisdictions he can not recover costs in a subsequent action thereon. New matter may constitute both a defense and a counter- claim. In an action for breach of contract of employment, the defendant may allege the failure of plaintiff to perform his covenants under the contract of employment, (1) as a justification for plaintiff's discharge, and (2) as a ground of counter-claim for damages.^ Such manifold use of the same facts should not obscure the distinction between defenses and counter-demands. The distinction is not lost ; it simply inheres in the same set of facts. The same facts negative the plaintiff's right to recover, and at the same time show a ' Baker v. Kinsey, 41 O. S. 403. '■> Mfj?. Co. v. Colgate, 13 O. S. Cf. Sarchet v. Sarchet, 2 Ohio, 320. 344. 355. § 257 ORDERLY PARTS OF PLEADING. 236 riglit of recovery in the defendant, and thus become both a shield and a weapon. This conjuncture of defense and counter-claim occurs most frequently in a class of defenses requiring some affirmative equitable relief to make them available. These will be treated of in the next three sections. Sometimes a statement of facts is in form a counter-de- mand, though in effect only a defense ; as, where the plaintiff sues on a claim assigned to him, and the defendant asserts a counter-demand against the assignor, that is available under the law, against the assignee. In such case the right of the defendant, called an equity, is defensive only, for it can be used only to reduce or extinguish the plaintiff's claim. The defendant could not maintain an independent action on it against the plaintiff, and he can not have judgment against the plaintiff for any excess thereof over his claim. ^ An individual may not maintain an action against the State, without its consent ; but when an individual is sued by the State, he may assert a counter-claim against the State. This is on the principle that he thereby seeks only to show that he does not owe the demand sued for ; and accordingly, he can not recover for any excess of his claim over that asserted by the State .^ Generally, where a new party is necessary to a final de- cision upon the defendant's claim for affirmative relief, the codes provide for the bringing in of new parties, so that the defendant's claim may be fully and finally adjudicated in the one action. 257. Defenses Dependent on Affirmative Equitable Relief. — Sometimes a defendant must have affirmative equi- table relief touching his defense, in order to make it available against the plaintiff's claim. For example, an action is brought upon a written contract, by the terms of which the defendant's liability is clear ; but the part of the writing from which his liability arises was inserted by mistake or fraud. The real contract would not show such liability, but 1 Ferreira v. Depew, 4 Abb. Pr. Y. 248, 252, Cf. Walker v. Ins. 131 ; Vassear v. Livingston, 13 N. Co., 143 N. Y. 167. * Kentucky v. Todd, 9 Ky. 708. 237 THE ANSWER. g 25B the writing does ; and upon the trial of an issue as to what were the terras of the contract, the writing itself is the best evidence. The defendant's real defense in such case is, that he did not make the promise sued on. But he can not deny- that he made the writing; and the writing shows that he made the promise, and it is the exclusive evidence upon that point. It is evident that to make his real defense available, the defendant must first impugn the writing. This he may do by way of a cross-action, in the nature of a bill in equity, alleging the real contract, the mistake or the fraud in the writing, and asking that it be reformed so as to conform to the intention of the parties and express their real contract. Such demand of affirmative relief is not, of itself, a defense to the plaintiff's claim ; it is simply to prepare the defendant to maintain and make available his real defense, non assumsit. Formerly, a defendant in such case was driven to an inde- pendent suit in equity to reform the writing ; but under the new procedure, which authorizes a defendant to assert equi- table cross-demands, as well as equitable defenses, he may have the affirmative relief, and assert his defense dependent thereon, in the same action. 258. Dependent Defenses, Continued. — In an action for the possession of property under a chattel mortgage, the defendant alleged a mistake in the mortgage, and averred that as it was intended to be drawn, the debt was not yet due ; but he did not ask for a correction of the instrument. It was held that the defendant could not prove the mistake and have the same benefit as though the instrument had been reformed ; that equity will aid in such case by reforming tlie instrument, not by giving effect to it without being reformed ; and that when such equitable relief is not invoked, the in- strument, as written, must have its proper legal effect.' The answer stated a good defense, but it was a legal defense, not equitable, and could not be made available upon the trials without first reforming the mortgage ; and in the absence of a prayer for reformation, there was no place for evidence to vary or contradict the writing. In an action for the conver- 1 FoUet V. Heath, 15 Wis. 601. § 259 ORDERLY PARTS OF PLEADING. 238 sion of crops, the answer alleged a reservation of the crops, and averred that by mistake iu a conve3'-ance b}- the defend- ant the reservation was omitted. The court said : '' When a mistake in a deed or written instrument is relied on, the pleading should go further than in this case it did. It should have prayed affirmative relief; that the instrument be re- formed so as to show the contract intended to be embodied in it, and that, when so reformed, it might be allowed as a bar to the suit, or to so much thereof as it would bar. This might be done by an answer in the nature of a cross-bill in equity." ^ In an action for breach of covenant against in- cumbrances, the alleged breach being an outstanding mort- gage, the defendant may answer that the agreement excepted such mortgage from the operation of the covenant, and that the exception was, by mistake, omitted from the deed.^ In such case the real defense is purely legal — the exception of the mortgage from the covenant. The alleged mistake is not in itself defensive, and is not any part of the defense, and is not necessary to a statement of the defense; it precludes proof of the real defense, and its correction is a prerequisite, not to the assertion, but to the proof, of the new matter in bar. 259. Dependent Defenses, Continued. — The kind of defense under consideration in the last two sections is of fre- quent occurrence in actions to obtain possession of real prop- erty, wherein it may be necessary to correct mistakes in the plaintiff's ^r the defendant's muniments of title, in order that the defendant's superior right may be made to appear by competent evidence. For example, the defendant may allege that the land in question was, by mistake, included in the plaintiff's deed, whether such deed be from the defendant, or from a former owner under whom both claim title ; or he ' Conger v. Parker, 29 Ind. 380 ; only a defense, and does not en- King v. Ins. Co., 45 Ind, 43. Cf. title the defendant to aflBrmative Pitclier V. Hennessey, 48 N. Y. equitable relief; a position which 415, 423. that court has since abandoned. » Haire v. Baker, 5 N. Y. 875. In Pitcher v. Hennessey, 48 N. Y 415, this case the Court of Appeals 422 ; Bartlett v. Judd, 21 N. Y. 200, suggested that such answer sets up 203. 239 THE ANSWER. § 260 may allege that the land was, by mistake, omitted from plaintiff's deed to him. In such cases the real defense is dependent, not for its assertion, but for its establishment, on the correction of the alleged mistake.^ In cases falling within the principle under consideration, the facts constituting a defense to the action, and those en- titling the defendant to affirmative relief, should be separ- ately stated, the latter b}'' way of cross-complaint, the former as an answer ; and the ground for affirmative relief should be first tried, because a decree upon that branch of the case, if for the defendant, will furnish him the evidence to support his defense, and if for the plaintiff, may virtually terminate the action.^ In some cases the defense to the action may be triable to a jury, while the demand for affirmative equitable relief is always triable to the judge, sitting as chancellor. Again, evidence to contradict or vary the writing is neither competent nor relevant as to the defense to the plaintiff's action, but is admissible only in support of the defendant's cross-action. 260. Cross-demands, How Pleaded. — When a defendant seeks affirmative relief, he becomes, quoad hoc, a plaintiff,^ and must state the facts constituting his right of action in the same manner and with the same degree of particularity " It miist be conceded that the first having the affirmative relief, courts have not, in all cases, con- Where an equitable right furnishes sistently observed the distinction both a defense and ground for affir- between defenses dependent upon mative relief, the defendant ?ua//as- affirinative equitable relief, and sert it as a defense merely, or he equitable defenses not so dependent, may assert it both as a defense and Hoppough V. Struble, 60 N. Y. 430; as ground for relief . But where, to Collins V. Rogers, 63 Mo. 515. And make such right available as a de- Mr. Pomeroy, in his excellent work fense, the defendant must first have on Remedies, somewhat obscures affirmative equitable relief touch- the subject by failure to observe ing it, he viust assert it both as a such distinction. Pom. Rem. 91 et defense and as ground for affirma- seq., and cases cited. Some equi- tive relief. Bliss PI. 348-351. table rights of the defendant are de- * Massie v. Stradford, 17 O. S. fensive merely ; some are both 596. ground of defense and for affirma- ^ Ewing v. Pattison, 35 Ind. 326, tive relief ; and some of the latter 330. class can be made available only by g 260 ORDERLY PARTS OF PLEADING. 240 that would be requisite if he were stating them in a com- plaint,^ except that he may refer to and adopt matters stated in the complaint. In matter of substance, the pleading must show a right of action in the defendant and against the plaintiff, and it musty in addition, show that the demand so asserted comes within the jurisdiction of the court, and that it belongs to some one of the classes of counter-demands proper to be set up in the pending action. For example, a demand arising out of the transaction which is the foundation of the plaintiff's claim, and for that reason available as a counter-claim, should be shown, by facts stated, to have such relation to the plaintiff's claim ; a general allegation that it so arose is not sufficient.^ And a set-off, available because it accrued to the defendant before the action was commenced, must be shown to have so accrued ; ^ a mere allegation that the plaintiff " is indebted,'* and that the sum claimed " is now due," is insufficient.* In matter of form, the cross-demand should be stated separ- ately from matters of mere defense; and even where the same facts constitute both a defense and a counter-claim, some authorities hold that they should be twice stated in separate divisions.^ In no other way can their sufficiency in each as- pect be separately questioned or determined. If matters of defense and matters of cross-demand are commingled in one statement, it is a defect of form, and if not remedied by motion will be treated as waived.^ In order that the plaint- iff may know what use the defendant intends to make of his alleged facts, he should in some way indicate his purpose to rely upon certain allegations for affirmative relief ; and in most jurisdictions this is required,^ though in some cases it • Holgate V. Broome, 8 Minn. 243; ' Campbell v. Routt, 42 Ind. 410, HUl V. Butler, 6 O. S. 207. 415. ' Brown v. Buckingham, 21 How. « Mfg. Co. v. Colgate, 12 O. S. Pr. 190. Cf. GUpin v. Wilson, 53 344. Ind. 443. •> Bates v. Rosekrans, 37 N. Y. ' Gregory v. Gregory, 89 Ind. 409 ; McConihe v. Hollister, 19 345 ; Rumsey v. Robinson, 58 Iowa, Wis. 269 ; Hutchings v. Moore, 4 225. Met. (Ky.) 110 ; Wilder v. Boynton, « Rice V. O'Connor, 10 Abb. Pr. 63 Barb. 547 ; McAbee v. Randall, 362 ; May V. Davidge, 44 Hun, 342. 41 Cal. 136 ; Life Ass. Soc. v. Cuy- 241 THE ANSWER. §261 is not.* The usual manner of designating a cross-demand is to entitle it a " cross-complaint," "counter-claim," or "set- off." In the absence of such designation, a prayer for affirmative relief has been held to indicate sufficiently the intention of the pleader.^ 261. Joinder of Defenses. — The new procedure contem- plates the filing of but one answer in an action, and author- izes the joinder therein of as many grounds of defense, coun- ter-claim, and set-off, as the defendant may have, whether legal or equitable, or both. At common law, dilatory pleas must be pleaded at a preliminary stage of the ac- tion, and in due order ; ^ and a plea in bar is a waiver of any objection that should be asserted in limine by a dilatory plea.* Under the new procedure, these defenses — dilatory and in bar — may all be joined in one answer,^ and the jjlea in bar is not a waiver of the dilatory plea joined therewith. In case of such joinder, it is the better practice to try first the issue made upon the dilatory plea, for if this be decided for the defendant, there is neither occasion nor authority to try the issue involving the merits ; though in some courts a con- trary practice obtains, and the same verdict is required to respond to both issues, separately. ler, 75 N. Y. 511, 514 ; StoweU v. Ind. 327 ; Bond v. Wagner, 28 Ind. Eldred, 39 Wis. 614. 462 ; Erb v. Perkins, 33 Ark. 428 ; ' Gilpin V. Wilson, 53 Ind. 443 ; Gardner v. Clark, 21 N. Y. 399 ; Holmes v. Richet, 56 Cal. 307. Sweet v. Tuttle, 14 N. Y. 465 ; ' WisweU V. TheCong. Ch., 14 O. Supervisors v. Van Stralen, 45 S. 31. "The answer of a defend- W::. 6'.^: Freeman v. Carpenter, ant may be treated as a cross-peti- V.W:,. 126; Little v. Harrington, tion, and the proper relief granted .1 Mo. 390. Contra, Hopwood v. under it, if it contain a prayer for Patterson, 2 Ore. 49, holding that judgment and the necessary aver- answers in the nature of pleas in ments to show his right to such abatement should now, as formerly, relief, under the proceedings in- be pleaded and determined before stituted against him, although he answer to the merits is interposed ; does not, in terms, denominate the and that the provision as to joinder paper he files, a cross-petition." does not apply to defenses that can Kloune v. Bradstreet, 7 O. S. 322. not be tried together. Tliere is a * Ante, 59. statutory provision of like effect in * Gould PI. V. 13, 153 ; DeSobry Indiana. Dwiggins v. Clark, 94 ▼. Nicholson, Z Wall. 420. Ind. 49 : Rev. Stat. 365. * Thompson v. Greenwood, 28 16 § 262 ORDERLY PARTS OF PLEADING. 242 The codes make no limitation upon the joinder of defenses, except the implied limitation that inconsistent defenses shall not be joined. The rule in equity is, that a defendant may not set up two defenses so inconsistent that if the facts in one are true, those in the other must be untrue in point of fact.^ Under the new procedure, there is some contrariety in the decisions,^ but the rule established by the weight of authority, both in reason and in numbers, is in harmony with the rule in equity, that two defenses so inconsistent, in point of fact, that both can not be true, so that the establishment of one is the destruction of the other, can not be joined. 262. Joinder of Defenses, Continued. — In the applica- tion of the foregoing rule, the courts have distinguished be- tween inconsistency arising from a direct contradiction of facts averred, and that inconsistency which arises by implica- tion of law. For example, a defense of new matter involves an admission of the truth of the facts stated in the complaint ; but this, as has been shown,^ is onl}^ a logical admission of their truth, requisite for the introduction of new matter in defense, and not inconsistent with their falsity in fact, which may be asserted in a separate defense in the same answer. When a defendant can truthfully deny the allegations of the complaint, he is not required to admit them to be true in fact, as the condition upon which he may avail himself of new matter in defense. He may both deny and avoid, ' Hopper V, Hopper, 11 Paige, 46. warranted, and that is not sustained * Mr. Pomeroysays : " Assuming by the cases which he cites to sup- that the defenses are utterly incon- port him. It would be a reproach sistent, the rule is established by to our system of procedure if de- an overwhelming weight of judicial fendants were allowed to set up authority, that, unless expressly defenses ad ?i5iiM7?i, without regard prohibited by the statute, they may to whether they were true or false, still be united in one answer." consistent or inconsistent ; and Pom. Rem. 722. He adds, how- such license is not to be drawn from ever, that " a different rule pre- the language or spirit of the codes, vails in a few states." With due and is not sanctioned by the weight deference to the learned author, he of authority. Bliss PI. 344 ; Max. has overlooked the distinction be- PI. 398 ; Boone PI. 78 ; Swan PL tween contradictory facts, and 267. logical inconsistency ; and has ' Ante, 235. reached a conclusion that is not 243 '^ti^ ANSWER. §283 although the avoidance is a tacit admission of what is denied ; otherwise, a defendant might be deprived of the riglit of full defense.^ Tlie distinction between logical inconsistenc}', and incon- sistency in fact, is well stated by a distinguished judge and author, in these words : " Some interpretation of the term * consistent defenses' should be adopted that is consistent with the statute, and that will secure the right of full defense. That right will be secured if the consistency required be one of fact merely, and if two defenses are held to be inconsistent only when the proof of one necessarily disproves the other. Two statements are not inconsistent when both may be true. When one has paid a forged note, he may deny, not the ex- istence of the paper, but that it was his promise ; and he may also aver its payment. But under our system, the facts should be so set out that both defenses may be true. So, in slander, for charging one with being a thief, the defendant may deny the words, and add the actio non because the plaint- iff stole a horse. Proving the larceny does not prove the speaking of the words. The logic of the justification might be held to admit the act justified, yet there is no inconsistency in the facts alleged." 2 263. Joinder of Defenses, Continued. — Any denial, and any statement of fact, that will thwart the plaintiff's demand is a defense ; and as many of these as may in fact co-exist, may be joined, notwithstanding the statement of one may involve a logical admission not consistent with another. But when two alleged grounds of defense are, in matter of fact, so plainly contradictory that the verification of one is the falsification of the other, they can not both be true, and can not both be necessary to a full defense ; they are inconsistent in fact, and may not be joined. In this connection it may be said that there is some au- thority, and much reason, for allowing a defendant to join inconsistent defenses, when, from the nature of the case, he is unable to determine before the trial, which is his true de- » Siter V. Jewett, 33 CaL 92. 'Per Bliss, J., in Nelson v. Brodhack, 44 Mo. 596. § 264 ORDERLY PARTS OF PLEADING. 244 fense. It is consistent with the spirit of the Reformed Procedure that a defendant having one or the other of two defenses, without the means of determining before the de- velopments of the trial, which is his true defense, shall not be compelled, at his peril, to rely upon one and exclude the other.i In such case, to give the defendant the benefit of his real defense, he should be allowed to state the two defenses in the alternative, stating also the reason for so doing. There is the same reason for allowing such alternative state- ment of a defense, that there is for allowing an alternative statement of a right of action.^ And the reason is accent- uated where the embarrassment of the defendant results from some act of the plaintiff. Where several defendants set up the same defense, they may join in one answer ; and if all are united in interest, a verification by any one of them is sufficient. If a defense pleaded jointly is bad as to any one of those joining in it, it is bad as to all.^ In an action upon a joint liability, the answer of one defendant, if in its nature joint, going to the validity of the plaintiff's joint demand, will inure to the benefit of all ; * but not so, if the legal effect of the answer is to exonerate only the party answering. 264. Joinder of Defenses — Illustrative Cases. — The defendant, in ejectment, denied that plaintiff ever had title, and also alleged that if he ever had title, he had abandoned and forfeited it before defendant's entry. The trial court, regarding these defenses as inconsistent, required the defendant to elect upon which he would rely. The Supreme Court held that the inconsistency arose by implica- tion of law, and not from any contradiction of facts averred, and reversed the trial court.^ The same court afterward * Bank v. Closson, 29 O. S. 78. common fault in pleading ; to wit, ^ Ante, 208. the ase of a denial and of evidential 2 Black V. Richards, 95 Ind. 184 ; facts as separate defenses. The Morton v. Morton, 10 Iowa, 58. material matter was, that the plain- * Sprague, Adm. v. Childs, 16 O. tiff did not have title at the com- S. 107 ; Miller v. Longacre, 26 O. mencement of the action. Prior S. 291. abandonment and forfeiture would, * Bell V. Brown, 22 Cal. 671. The as evidence, sustain a denial of title. answer in this case illustrates a The answer should have been a de- 245 THE ANSWER. g 265 held that a defendant in ejectment may deny the title of the plaintiff, and also plead the statute of limitations.^ In a similar case, tlie defendant denied that he was in jjossession, and also alleged that he was in possession as the agent and servant of another, who owned the property. These de- fenses were clearly inconsistent. The defense of new matter did not, by mere implication, admit the defendant's posses- sion ; it positively averred his possession, and sought to justify it. The denial of possession, and the assertion of rightful pos- session, is not a mere logical inconsistency, but a direct contradiction of facts. Both defenses can not be true in point of fact. But no objection was made in the trial coui-t, on the ground of inconsistency ; and the plaintiff having offered no evidence on the trial to show the defendant's pos- session, a judgment of nonsuit was entered, on motion of the defendant. The Supreme Court held that the nonsuit was proper, and said : " Though two defenses, separately pleaded, may be inconsistent, the plaintiff can not disregard them, or either of them, on the trial. A separate defense should not contain matters in themselves repugnant or in- consistent ; but a defense, regarded as an entirety, is not to be disregarded merely because it is inconsistent with some other defense pleaded." ^ 265. Joinder of Defenses — Illustrative Cases, Con- tinued. — In an action on a promissory note, the defendant may join a denial of the making of the note, with a plea of infancy ; ^ or he may join a defense of payment, and a plea of the statute of limitations ; ^ or a denial of the execution of the note, and want of consideration therefor.^ In such cases, if one defense be true, the other is, of course, immaterial and nialonly; and the forfeiture, being election.it might have been siricfcen an evidential fact, should not have out, on motion for that purpose. been pleaded. The defense of new ' Willson v. Cleaveland, 30 Cal. matter, containing only evidential 192. matter admissible under a denial, ' Buhne v. Corbett, 43 Cal. 264. was, in legal effect, the equivalent " Mott v. Burnett, 2 E. D. Smith, of a denial ; and while this defense 50. was not inconsistent with the de- * Conway v. Wharton, 13 Minn. nial, and did not present a case for 158. » Pavey v. Pavey, 30 O. S. 600. t; 266 ORDERLY PARTS OF PLEADING. 246 Tiiiiiecessary ; but the defenses are not inconsistent; both may be true, and both are necessary to a full defense. In a siiniliir action, the defendant for a first defense denied tlie making of the note, and for a second defense he alleged that if the signature to the note was genuine, it was obtained by a cunningly devised scheme or trick. The trial court held these defenses to be inconsistent, and required the defendant to elect upon which he would rely. The Supreme Court, reversing the trial court, said : " The code contains no limi- tation upon the provision that the defendant may set forth as many grounds of defense as he may have, except the implied limitation contained in the requirement that pleadings shall be verified by oath. There is no provision requiring the several grounds of defense to be technically consistent with each other, or requiring an express admission of the truth of averments sought to be avoided by new matter. It is merely required that the answer shall be verified by oath. When two alleged grounds of defense plainly contradict each other, they are not susceptible of verification, because it is impossible for both to be true. The verification of one is the falsification of the other. In such case, the answer, though sworn to, is not ' verified,' and should, on motion, be stricken from the files, or the defendant be put to his election. Was there any such contradiction or irreconcilable repugnancy between tlie two defenses set up in this answer ? We luink not. Taken together, the two defenses amount to this: That the defendant is ignorant whether he signed the note or not ; he does not believe he signed it, and therefore denies it; and says that if he did sign it, his signature was obtained by fraud, and without considera- tion." i 266. Joinder of Defenses — Illustrative Cases, Con- tinued. — In an action for slander in charging perjur}^ the ' Bank v. Coulson, 29 O. S. 78. defendant had one of two defenses. The defenses in this case were and had not the means of knowing, clearly inconsistent ; both could otherwise than from the develop- not be true. The rational ground ments to be made upon the trial, for the joinder, as intimated in the which of the two, in fact or in law, opinion of Welch, C. J., is. that the was his true defense. 247 THE ANSWER. §266 defendant may both deny and justify ; for it may be true that the phiintiff committed perjury, and that the defendant did not speak the words complained of; and both the denial and the justification are necessary to a full defense.^ In an action for slander in charging larceny, the defendant in one defense denied the speaking, and in another he alleged that the words spoken referred to a trespass committed by the plain tiif, and not to a larceny. Here the answer of new matter expressly admitted the speaking, and was inconsistent with the denial. But the court sustained the answer, and refused to require the defendant to elect, on the ground that the facts alleged as new matter would, if proved, sustain the defense under the general traverse.^ In an action on a promissory note, a defendant who is surety may join defenses of usury, of extension of time, and of payment.^ But a denial of the execution of an instru- ment, and an allegation that it was executed under duress, are inconsistent.* So are a denial and a tender ; ^ and a denial of the taking of goods, and justification under process.® Where inconsistent defenses are improperly joined, the remedy is by motion to require the defendant to elect upon which he will rely. 1 Weston V. Luraley, 33 Ind. 486; ^ ghed v. Augustine, 14 Kan. 283. Butler V. Wentworth, 9 How. Pr. * Wright v. Bacheller, 16 Kan. 282. 259. * HoUenbeck v. Clow, 9 How. Pr. ^ Livingston v. Harrison, 2 E. D. 289. The ruling in this case is of Smith, 197. doubtful authority. •Derby v. Gallup, 5 Minn. 119. CHAPTER XVni. THE REPLY. 267. Nature of Reply, and When Necessary. — The chief object of pleadings subsequent to the complaint is, to present an issue. In the common-law procedure, the alternate plead- ings were continued until an issue was evolved. In the new procedure, the only responsive pleading from the plaintiff is called a reply ; and this, when made necessary by the nature of the answer, terminates the pleadings. If the answer con- tain only a denial, it will present an issue, and no reply is necessary. When the answer contains a defense of new matter, such defense does not make an issue, but diverts the contention from the facts in the complaint, which are thus confessed and avoided, to the new matter so pleaded in the answer, and calls for a reply. The reply, like the answer, may be a denial, general or special, of all or any part of the new matter in the answer; or it may itself contain new matter in confession and avoid- ance ; and it may contain both denials and new matter, separately stated. The codes of the several states do not agree in regard to the necessity for a reply. In a few states, no reply is re- quired or permitted ; in some, none is required except to a counter-claim or set-off ; and in some, a reply is required only when the defense of new matter is to be met by new matter in avoidance ; while in others, all new matter in the answer, whether by way of defense or by way of cross-demand, must be replied to, either by denial or by new matter in avoidance. And an answer of new matter to a cross-complaint may be met by a reply from the defendant. Every material allegation of the complaint not contro- verted by the answer, and every material allegation of new 248 249 THE REPLY. § 268 matter in the answer not controverted by the reply, in states where a reply is necessary, is, as matter of pleading, and for the purposes of the action, to be taken as true. But new matter in the reply is to be deemed controverted, as by de- nial or avoidance, as the case may require. This is a logical necessity, arising from the arbitrary termination of the pleadings ; for otherwise, a reply of new matter in avoidance would terminate the pleadings without an issue. 268. When Reply Not Necessary. — As stated in the last preceding section, a defense of denial does not require a reply, because it makes an issue upon the matters denied, and therefore terminates the pleadings as to such matters ; while a defense of new matter must be met by a reply, or its material facts will be taken as admitted. This rule is plain, but its application is not always free from difficulty. Where a defense is stated in the form of new matter, but comprises only evidential facts that are, in efifect, only a traverse of the complaint, and that might be proved under a denial, it is not a defense of new matter, and does not require a reply ; ^ and the facts so pleaded are not admitted by failure to reply. Where an answer contains an admission of a sup- posed allegation of the complaint not actually contained therein, such admission is not an allegation of new matter, and needs no reply .^ In an action for goods sold and delivered, the defendant, in addition to a general denial, answered that the goods were sold to his wife, without his knowledge or consent, when she was wrongfully living apart from him. This was held to be an argumentative general denial, as all the facts alleged were evidential, and amounted only to a denial that the goods were sold to the defendant ; ^ and it was held that the sustaining of a demurrer to the special defense was not error, because, as the facts therein alleged could all be proved under the defense of denial, the 1 Conyv. Campbell, 25 O. S. 134 ; Porter, 19 Kan. 131 ; Thompson v. Simmons v. Green, 35 O. S. 104 ; Thompson, 52 Cal. 154 ; Miller v. Sylvis V. Sylvis, 11 Colo. 319 ; Brigham, 50 Cal. 615. Riddle v. Parke, 12 Ind. 89 ; State ' Hoisington v. Armstrong, 23 V. Williams, 48 Mo. 210 ; Ferris v. Kan. 110. Johnson, 27 Ind. 247 ; Netcott v. « Day v. Wamsley, 33 Ind. 145. -<. § 269 ORDERLY PARTS OF PLEADING. 250 defendant could not be prejudiced by the ruling on the de- murrer.^ Where the complaint in replevin alleged plaintiff's ownership and right to possession, and wrongful detention by the defendant, and the answer denied the detention, and alleged property in a stranger, it was held that the allega- tion of property in a stranger was an argumentative denial of property in the plaintiff, and needed no reply .^ Property in a stranger was an evidential fact that would, as evidence, sustain a denial of property in plaintiff ; and such denial would be the proper plea. It may be stated as a general rule, that facts alleged in an answer, that might be proved under a denial of the aver- ments of the complaint, and that are operative only because inconsistent with such averments, can amount to no more than a specific denial, and do not require a reply ; but facts alleged in the answer, not inconsistent with those of the complaint, but constituting a defense or counter-claim, and that could not be proved under a specific denial, are new matter and require a reply .^ 269. When Reply Not Necessary, Continued. — A very common fault in pleading is the combination of the general denial and a statement of facts equivalent thereto, either in the same defense, or in separate defenses. Where the plaint- iff charged the defendant with doing an unlawful act to the injury of the plaintiff, the answer denied that the defendant did the act complained of, and alleged that a third person, naming him, did it. This Avas held to be a mere denial, not requiring a reply.* The allegation that another did the act complained of did not require a reply for several reasons. First, because the fact is purely evidential, and should not be pleaded ; secondly, when pleaded it is argumentative, and as an argument it amounts only to a denial, for, to say that another did it, is only to say, by inference, that the plaintiff did not do it ; and thirdly, it is immaterial. If the defendant 1 Cf. Claypool v. Jaqua, 135 Ind. ^ Mauldin v. Ball, 5 Mont. 96. 499 ; Barnard v. Sherley, 135 Ind. * Hoffman v. Gordon, 15 O. S. 547. 211. • Riddle v. Parke, 12 Ind. 89. 251 THE REPLY. §270 did not do the act, it is not material, as matter of pleading, to show who else did it. In an action to recover damaofes for the breach of a contract, averments in the answer setting up a different contract are immaterial, except as they operate to deny the making of the one sued on ; they are not new matter, and they require no reply.^ Where a negative averment in the complaint is properly traversed by an affirmative allegation in the answer, such affirmative allegation, in form a statement of new matter, simply questions the statement of the complaint, and rests the contention upon it ; it does not confess and avoid, and is not new matter requiring a reply. Where the complaint alleged that a certain assignment of a note and mortgage was without consideration, and for the purpose of collection only, and the answer alleged that it was upon a sale, and for a valuable consideration, it was held that the allegation in the answer was not new matter requiring a reply .^ In an action on an attachment bond, the comjjlaint alleged, inter alia, that the attachment had been abated by a judgment in the original action. The answer asserted that the original suit was still pending, by motion in arrest of judgment and for a new trial. It was held that this was, in effect, a mere denial of an allegation which the plaintiff must prove to make out his case ; that it did not confess and avoid, and was not new matter requiring a reply .^ 270. Counter-claim and Set-off in Reply. — As to whether a counter-claim or set-off in the answer may be met ^ Simmons v. Green, 35 O. S. 104. under the general denial. This Mr. Pomeroy, speaking of the fault mode of pleading is faulty in the of superadding to a general denial extreme : it has not a single reason a special defense equivalent there- in its favor, not an excuse for its to, says : " It would seem as though existence; it overloads the record the pleader, after he had written with superfluous matter, and pro- the brief general denial, could not duces confusion and uncertainty." be satisfied with its efficacy, and Pom. Rem. 630. considered it necessary to add in ^ Engle v. Bugbee, 40 Minn. 492 ; separate divisions of the answer a Ferguson v. Tutt, 8 Kan. 370. further statement of the very facts ^ State v. Williams, 48 Mo. 210, which would constitute the defense, 212. and which could all be proved §271 ORDERLY PARTS OF PLEADING. 252 by a counter-claim or set-off in the reply, the authorities are not agreed. Perhaps the general rule may be said to be, that this may be done, provided the right set up in the reply is not a departure. This is on the ground that as to the cross-demand in the answer, the plaintiff is a defendant, and has the rights of a defendant, including the right of counter- claim and set-off.i And on the like ground, to wit, that the assertion of the cross-demand is a cross-action, it would seem, upon principle, that a set-off in reply may be one existing at the time defendant files liis cross-demand, though not exist- ing at the commencement of the action. But plaintiff can not, in reply to a set-off, assert a demand that he might have included in his complaint ; ^ and it has been held that a cross-demand in the reply is available only as a defense, and that there can be no recovery for any excess thereof.^ It has been held that one having a note and an account against another may sue upon the note, and in a reply plead the account as a set-off against a set-off pleaded by the defendant ; ^ and in an action on a joint and seyeral contract, the plaintiff has been allowed, in reply to an individual counter-claim of one defendant, to set up a claim against such defendant as a set-off.^ This was on the ground that the reply did not state a new cause of action, but simply a bar to the counter-claim. 271. Reply to Defense of Fraud. — When fraud is relied upon as a defense, it is new matter, to be specially pleaded, and must be met by reply. Generally, no reply but denial can be asserted against a defense of fraud. In a few in- stances, however, a charge of fraud may be met by confession and avoidance. 1 Peden v. MaO, 118 Ind. 556 ; Contra, Hill v. Roberts, 86 Ala. Cox V. Jordan, 86 111. 560 ; Galligan 523 ; Cohn v. Hiisson, 66 How. Pr. V. Fannan, 91 Mass. (9 Allen) 192 ; 150. Mortland v. Holton, 44 Mo. 58 ; ' Dawson v. Dillon, 26 Mo. 395. Miller v. Losee, 9 How, Pr. 356 ; ^ Cox v. Jordan, 86 111. 560. House V. McKinney, 54 Ind. MO ; * Blount v. Rick, 107 Ind. 238. Turner v. Simpson, 12 Ind. 413 ; But see Dawson v. Dillon, supra. Reilly v. Bucker, 16 Ind. 803 ; * Mortland v. Holton, 44 Mo. 58. Curran v. Curran. 40 Ind. 473. 5J53 THE REPLY. §272 An indorsee of negotiable paper is, under certain condi- tions, protected against its original infirmities, including fraud in its procurement. To be so protected, he must be a "• bona fide holder for value ; " that is, he must have paid a consideration for the security, and must have taken the legal title thereto, before maturity, without notice of its infirmity. It has been suggested, that in pleading such fraud against an indorsee who sues on the instrument, it may be sufficient to allege only the original infirmity ; ^ that such allegation of original invalidity destroys the title of the original holder, and, prima facie, the title of the indorsee, which' reposes on that foundation ; and that if the indorsee obtained the paper for value, and without notice, it is for him to allege these facts, which give him a new title notwith- standing the alleged infirmity of the instrument. These new facts, the one affirmative and the other negative, when alleged in the reply, would be new matter in avoidance ; and if not connected with a denial, such reply would put the 07ms probandi upon the plaintiff.^ But this suggestion is based upon a rule of evidence, and is at variance with the principles of pleading, which would seem to require that an averment of fraud should be coupled with such other facts as are legally requisite to make the defense available against the plaintiff. And such is believed to be the general, if not the uniform, practice.^ 272. Reply to Defense of Fraud, Continued. — So, also a defendant may confess and avoid an allegation of fraud. Where a sale of goods is induced by the fraud of the pur- chaser, and there is actual and unconditional delivery, with ' Byles on Bills, 120-124 ; Bliss exception stated in the text is based PI. 395. upon two reasons ; (1) there is a ' 2 Gr. Ev. 172 ; 1 Dan. Neg. Instr. presumption that the guilty payee 166,769a; Sperry v. Spaulding, 45 transferred it in order that he might Cal. 544. The general rule is, that realize on it, in the name of a third the transferee of negotiable paper person ; and (2) the transferee is presumed to have taken it for knows how it came to his hands, value, before its dishonor, and in and it is much easier for him than the regular course of business ; and for the defendant to make proof of the burden is upon the maker to it. overcome this presumption. The • Lane v. Krekle, 32 Iowa, 399. § 273 ORDERLY PARTS OF PLEADING. 354. intent to pass the title, a subsequent bona fide purchaser for value will take the goods freed from the right of the original vendor to reclaim the goods.^ In an action by the original vendor to reclaim the goods from such innocent purchaser, on the ground of fraud in the purchase from him, tlie defend- ant ma}^ in avoidance of the allegation of fraud, allege his purchase from the fraudulent vendee in possession, for value, and without notice. It is common j)ractice, in alleging fraud in such cases, to add the averments of notice and vrant of consideration ; but upon principle it would seem that such averments in the plead- ing impeaching the instrument in the one case, and the sale in the other, can have no office but to anticipate the defense, and that the facts of consideration and want of notice, being in the nature of estoppel, should be pleaded in response to the allegation of fraud which they are to meet and avoid. If it is proper in such cases to combine with the allegation f fact. The distinguishing characteristic of a sham defense is its apparent and undoubted falsity. It matters not whether it be affirmative or negative in form, or whether its scope be such as to involve all, or onl}^ a part, of the allegations of the complaint.'^ This power to strike sham pleadings from the files is indispensable to the protection and maintenance of the character of the court, and the proper ad- 1 Bliss PI. 421 ; Boone PL 253, App. 572 ; Ferguson v. Troop, 16 254. Cf. Improvement Co. v. Hoi- Wis. 571. way, 85 Wis. 344. « Bliss PL 422 ; Boone PL 252. ^ Per WfflTE, J., in Larimore v. * Tylers Steph. PL 385 ; Kay v. Wells, 29 O. S. 13. Whittaker, 44 N. Y. 565. Cf. 3 Dole V. Burleigh, 1 Dakota, Werk v. Christie, 9 O. C. C. 439. 227. ' People v. McCumber, 18 N. Y. * Kenworthy v. Williams, 5 Ind. 315. Cf. Thompson v. Erie Ry. 375 ; McMahon v. Bridwell, 3 Mo. Co., 45 N. Y. 468 ; Wayland v. Tysen, 45 N. Y. 281. 263 MOTIONS. § 286 ministration of justice ; but care should be taken no*: to carry it beyond its proper limits, and not to exercise it where there is in fact an issue which the defendant is entitled to liave tried.^ All motions should contain the title of the cause, so as to identify them with the action in which they are made. A motion to strike a paper from the files should state the ground of the motion, and may be in this form : The deiendan' moves the court to strike from the files the plaintiff's reply herein, for the reason that the same is not verified. 280. Motion to Strike Out.; — The pleadings are to con- tain statements of operative facts, and denials thereof. Their object is, to bring the controversy before the court in such form as clearly to disclose the respective claims of the parties, to separate questions of law from questions of fact, to avoid inquiry concerning matters not disputed, or not material, and to expedite the trial of causes. Subsidiary to these ends a process of elimination is provided, whereby redundant, ir- relevant, or immaterial matter may be stricken from a plead- ing of fact, on motion of the party prejudiced thereby. And scandalous matter, and obscene words, may be stricken from a pleading, on motion of a party, or by the court sua sponte ; the court having inherent power to purify its own records.^ To have the pleadings encumbered with needless or im- proper allegations is not a mere scientific blemish, it is a great inconvenience and hindrance to procedure. One purpose of a motion to strike out, and a principal use made of it, is, to have the court determine, before the party responds to the pleading, whether the matter attacked by motion is to be in- volved in the subsequent pleadings, and in the trial of th cause. For example, if the complaint contain allegations which the defendant believes to be immaterial or irrelevant, — allegations which, if immaterial or irrelevant, do not require an answer, and can not be proved or relied upon in the trial, — he may, without waiting to have the matter decided upon ^Improvement Co. v. Hoi way, 188; Dcter, J., in Bowman v. Shel- 85 Wis. 344. don, 5 Sand. 657 ; Opdyke v. 5 Mussina v. Clark, 17 Abb. Pr. Marble, 18 Abb. Pr. 266. a 281 ORDERLY PARTS OF PLEADING. 264 objection to evidence at the trial, or in the charge to the jury, obtain a ruling of the court at once, upon his motion to strike out such allegations , and having obtained such ruling, the defendant is advised as to whether his answer must respond to such allegations, and both parties are advised as to whether they are to be involved in the trial. 281. Motion to Strike Out, Continued. — Matter that is redundant, irrelevant, or immaterial may be stricken out. Redundancy is excessive statement — superabundance, not merely of words, but of sl.itement. Pleonasm is a fault of rhetoric, not of pleading Heiice, mere prolixity or useless descriptive matter will seldom be stricken out as redundant ; ^ tliough where the provisions of a charter were needlessly recited, they were stricken out as redundant.^ Where an answer contains a general denial, and in addition thereto a statement of evidential facts amounting to an argumentative denial, the latter may be stricken out on motion ; ^ it is re- dundant. An allegation is irrelevant, when it does not relate to or affect the matter in controversy, and when it can in no way affect or assist the decision of the court. And matter alleged in a pleading is immaterial, when a denial thereof would pre- sent an immaterial issue, and when it could be stricken from the pleading without affecting its legal sufficiency or effect. Matter of argument may be stricken from a pleading as ir- relevant \ * and so may matter of evidence.^ Evidential facts may be relevant to an issue, and so be admissible upon the trial ; but they can not be relevant to the formation of an issue. A statement of the defendant's reason for pleading the statute of limitations may be stricken out ; ' it is both irrelevant and immaterial. In a cause of action for breach of warranty, an averment of scienter would be both immaterial and irrelevant. If a plaintiff in ejectment, after stating his 'Moffatt V. Pratt, 12 How. Pr. ■'Harris, J., in Gould v, Wil- 48. liams, 9 Hoa7. Pr. 51. 2 Durch V. Chippewa Co., 60 "Wis. ' McCaviley v. Long, 61 Tex. 74 , 227. Bowen v. Aubrey, 22 Cal. 566; ' DeForrest v. Butler, 62 Iowa, Cathcart v. Peck, 11 Minn. 45. 78. « Nichols v. Briggs, >8 S. C. 473. 265 MOTIONS. §§ 282-283 title, describe the sheriff's sale and deed to him, such descrip- tion may be stricken out on motion.^ Irrelevant matter in an answer, responsive to irrelevant matter in the complaint, may be stricken out on motion.^ 282. Motion to Strike Out, Continued. — It is a gen- eral requirement that motions shall be specific in their ob- ject, and certain in their application ; and a motion to strike out improper matter in a pleading must designate it with certainty.^ This may be done by recapitulating the words to be stricken out, or, if the matter be long, by giving the words at the beginning and at the close thereof ; ^ a reference to the page and lines of the pleading is not sufficient,^ for these indications disappear when the pleading is copied into the record. Care should be taken not to include material and unobjectionable words in the matter asked to be stricken out, for in such case the whole motion must be denied.^ The court should exercise its power under a motion to strike out, with reluctance and caution,'^ for if material matter be stricken out it will be error ; while refusal to strike out will seldom be to the prejudice of any one.^ If a party demur to or answer a pleading containing matter that might be stricken out on motion, he thereby waives the right to object by motion, unless leave of court be obtained.^ A motion to strike out may be in form as follows : The defendant moves the court to strike out of the complaint all that part thereof beginning with the words " And the plaint- iff further says," and ending with the figures "1895," for the reason that the same is redundant and irrelevant. 283. Motion to Make Definite. — Each party has a right to know from his adversary, and with reasonable certainty, ^ Warner v. Nelligar, 12 How. ' Robinson v. Rice, 20 Mo. 229 ; Pr. 402. Patterson v. Hollister, 32 Mo. 478. ' Mayer Co. v. Goldenberg, 1 « Wliite v. Allen, 3 Oreg. 103 ; Ohio Nisi Prius Rep. 189. Cf. Gilbert v. Loberg, 86 Wis. 661. Pom. Rem. 578. ' Essex v. RJ^ Co., 8 Hun, 361 ; ' Jackson v. Bowles, 67 Mo. 609. St. John v. Griffith. 1 Abb. Pr. 39. * O'Connor v. Koch, 56 Mo. 253 ; « Gate v. Oilman, 41 Iowa, 530. Bryant v. Bryant, 2 Robt. 612 ; « Russel v. Chambers, 31 Minn. Pearce v. Mclntyre, 29 Mo. 423 ; 54. Blake v. Eldred, 18 How. Pr. 240. § 2S4 ORDERLY PARTS OF PLEADING. 266 what cliiira or defense be is required to meet, in order that he may prepare to meet it, and that he may not be taken by sui-prise at the trial ; and wlien the statements of a pleading are so indefinite and uncertain that the precise nature of the claim or defense is not apparent, the court may, on motion, require them to be made definite and certain, by amendment of the pleading. ' A party is bound to disclose in his plead- ing all the operative facts upon which he relies, and is neither required nor allowed to display therein evidential facts. / But all statements, whether of operative facts or of denials, should be so framed as to be clear and certain ; and therefore such incidents, or closely related facts, as may be requisite to this end, should be stated also.^ And when a pleading is, in any material matter, so ambiguous or indefinite as to render its meaning uncertain, and thereby to embarrass the adverse part}', it may be corrected by motion to make it definite and certain in such particular.^ Where a complaint makes it uncertain whether the plaint- iff relies upon an affirmance of a contract or a rescission thereof,^ or whether the cause of action is in tort or in con- tract,^ or whether he sues for an agreed price or for a quantum meruit,^ he may be required, by motion, to make his com- plaint definite in such respect. Uncertainty as to time, Avhen time is not a material element of the right asserted,^ and uncertainty in an allegation of negligence,' are defects to be cured by motion to make definite. So, the allegation of a legal conclusion, as, that one holds the legal title to prop- erty in trust,^ is vulnerable to a motion to make definite by stating the operative facts. 284. Motion to Make Definite, Continued. — An argu- mentative denial — that is, a statement of evidential facts ' Ante, 189, 190. « People v. Ryder, 12 N. Y. 433 ; ' Pa. Co. V. Sears, 136 Ind. 460. Ry. Co. v. Shanklin, 94 Ind. 297. ^ Faulks V. Kamp, 8 Jones & S. "^ Penn. Co. v. Sedgwick, 59 Ind. 70. 336 ; Tump. Co. v. Hiimphrey, 59 * Ladd V. Arkell, 5 Jones & S. Ind. 78 ; Ry. Co. v. CoUam, 73 35 ; IXGALLS, J., in Conoughty v. Ind. 261. Nichols, 42 N. Y. 88. » Horn v. Ludington, 28 Wis. 81. * Gardner v. Locke, 2 Civ. Proc. 252 ; Dorr v. JVIills. 3 Civ. Proc. 7. 267 MOTIONS. ^285 which, arguendo^ controvert the statement of the other side, is not a nullity,^ and may not be demurrable,^ but is subject to a motion to make definite, and, if accompanied by a gen- eral denial, may be stricken out as surplusage.^ A nega- tive pregnant, a denial which by implication admits a mate- rial part of what is apparently controverted, is evasive and ambiguous, and is therefore subject to a motion to make definite. A pleading may be so uncertain and indefinite as to be subject to cori-ection on motion, and yet hi good as against a demurrer ; ^ for indefiniteness is a defect of form, and not of substance. A defect, to be remedied by motion to make definite, must appear upon the face of the pleading ; ^ matters dehors the record can not be considered ; ^ and such defects must be remedied by motion, and not by excluding evidence at the trial.'^ A motion to make definite and certain must specify the particular deficiency to be remedied,^ and may be in the form following : Now comes the plaintiff and moves the court to require the defendant to make his first de- fense to plaintiff's second cause of action definite and certain, by stating therein the facts whereby he claims said instru- ment " was fraudulently procured from him." 285. Motion to Separately State and Number. — A plaintiff having several distinct rights of action against the same person may, subject to certain restrictions, pursue them in one action, separately stating his causes of action.^ If two or more causes that are not joinable are united, whether by separate statements or by one commingled statement, the fault is misjoinder ; if two or more causes that are properly joinable are commingled in one statement, the fault is com- 1 Simmons v. Green, 35 O. S. « Scofield v. Bank, 9 Neb. 316 ; 104 ; Loeb v. Weis, 64 Ind. 285. Hopkins v. Hopkins, 28 Hun, 436. ' Pom. Rem. 627, 632 ; Bank v. ' Kerr v. Hays, 35 N. Y. C31 ; Hendrickson, 40 N.J. L. 52. Greenfield v. Ins. Co., 47 N. Y. •^ Pom. Rem. 632 ; DeForrest v. 430 ; Ready v. Summer, 37 Wis. Butler, 62 Iowa, 78. 265 ; Spies v, Roberts, 18 Jones & •• Ry. Co. V. Iron Co., 46 O. S. S. 301. 44. * Gilmore v. Norton, 10 Kan. 'BrowTi V. Ry. Co., 6 Abb. Pr. 491. 237. 9 ^nte, 195 et seq. t<28e ORDERLY PARTS OF PLEADING. 268 moiily called duplicity. Misjoinder relates to thefaet of the union, and is remediable by demurrer ; ^ duplicity relates to the/orw of the union, and is remediable by motion to require the plaintiff to separately state and number his several causes of action. A defendant may join in his answer as many grounds of defense, counter-claim, and set-off, as he may have, subject only to the requirement that they shall be separately stated and numbered, and that inconsistent defenses shall not be joined.2 If inconsistent defenses are improperly joined, the remedy is by motion to require the defendant to elect upon which he will rely ; if several defenses are commingled in one statement, the remedy is by motion to require the defendant to separately state and number his several defenses. Whatever operative facts would, if stated by themselves, entitle the plaintiff to relief by action, constitute a right of action, and should be separately stated as a cause of action. And any denial, or any statement of operative facts, that will show that the plaintiff is not entitled to relief, or that will wholly or partly defeat his claim, is a defense, and should be separately stated as such. And each separate and distinct counter-demand should be separately stated. The require ment that separate and distinct causes of action, defenses* and counter-demands, when joined, shall be separately stated, is intended to facilitate the formation of issues, both in fact and in law ; and though it is matter of form, and is waived if not corrected at the proper time and in the proper way, it is an important and valuable means for securing singleness, certainty, and precision in the issues. 286. Motion to Separately State and Number, Con- tinued. — Material matter, though ill pleaded, may make a pleading double ; for material matter, though insufficiently pleaded, may, if sufficient in substance, be the subject of a material issue. On the other hand, immaterial matter can not operate to make a pleading double, because no material issue can be made upon it. Accordingly, where allegations of new matter in an answer are without merit as matter of > Post, 299. « Ante, 261-26& 269 MOTIONS § 287 defense, the proper remedy is a motion to strike out, and not a motion to separately state and number.^ Where matter that in itself constitutes a ground of recovery or of defense is pleaded only as a necessary inducement to other matter, and it is apparent that the claim or defense is rested on the latter, and not on the former, the pleading is not double.^ But if the matter so pleaded as inducement is not necessary for that purpose, it may itself become a ground of recovery or de- fense,^ and should be subject to correction by motion to separately state and number. It is a rule of common-law pleading, and applicable in code pleading, that no matters, however multifarious, will make a pleading double, if together they constitute but one connected proposition or entire point.^ Thus, in an ac- tion for assault and imprisonment, the defendant may plead in avoidance that he arrested the plaintiff on suspicion of felony, and may set forth several circumstances of suspicion, each one of which would alone justify the arrest ; for all the circumstances taken together amount to only one connected ground of suspicion, and constitute but one defense. It seems that the refusal of a motion to require causes or defenses to be separated is not an error for which final judg- ment will be reversed, unless it appear that by such refusal the party complaining has been deprived of a substantial right.^ A motion to require causes or defenses to be separated need not specify the several causes or defenses, and may be in this form : The defendant moves the court to require the plaintiff to separately state and number his several causes of action. 287. Waiver of Formal Defects. — The general rule is, that where a pleading is insufficient in matter of substance, the defect is not waived by pleading over, or by going to ' Ridenour v. Mayo, 29 O. S. 138. •• Steph. PI. 307 ; Bliss PI. 294. » Steph. PI. 306 ; Raymond v. » Bear v. Knowles, 36 O. S. 43 ; Sturges, 23 Conn. 134 ; Lord v. Goldburger v. Utley, 60 N. Y. 427. Tyler, 14 Pick. 156 ; Ross v. Mather, Contra, Pierce v. Bicknell, 11 Kan. 51 N. Y. 108. 262. * Conaughty v. Nichols, 42 N. Y. 83. g 287 ORDERLY PARTS OF PLEADING. 270 trial without demurriiig, unless the defect be cured by alle- gations in a subsequent pleading. But the rule as to de- fects of form is different. These defects are corrected at the instance of the adverse party, and for his convenience ; and if he answer or demur to a pleading, he thereby admits that he has not been inconvenienced or misled by any formal de- fect therein, and is held to have waived his right to have it corrected.! Where a defendant in an action on a promissory note pleads, in general terms, that it "was and is wholly without consideration, and void," and the plaintiff does not move to make definite by requiring a statement of the facts on which the defense is based, he waives his right to object to the form of the defense; and any evidence is admissible on the trial that will tend to impeach or sustain the consideration. ^ "Where two causes of action are properly joined, but are commingled in one statement, and the defendant, without objection by motion to separate them, answers both causes, and proceeds to trial, he waives the right to object to the duplicity.^ Where a complaint based upon an appraisement alleges that an appraisement had been " duly and legally made," and the answer alleges only that " the appraisement was not duly and legally made," and the plaintiff proceeds to trial without moving to require the defendant to make his answer definite by stating in what respect the appraise- ment was not legal, the defect is waived.* Where the com- plaint of a corporation contained no averment of corporate existence, and no objection was made until after judgment, the defect was held to be waived.° Want of subscription or verification is a mere irregularity, which is waived by demur- ring or by pleading over ; ^ the objection can not be raised on 1 Garard v. Garard, 135 Ind. 15. McCarthy v. Garraghty, 10 O. S. « Chamberlain v. Ry. Co. , 15 O. S. 438. 225 ; Larimore v. Wells, 29 O. S. * Trustees v. Odlin, 8 O. S. 293. 13. Cf. Bank v. Sherman, 33 N. Y. » Spence v. Ins. Co. , 40 O. S. 517. 69. « State v. Bath, 21 Kan. 583, ' McBanney v. McKinney, 8 0. S. State v. Chadwick, 10 Oreg. 423 : 423 ; Truitt v. Baird, 12 Kan. 420 ; Hughes v. Feeter, 18 Iowa, 142 ; Cobb V. Ry. Co., 38 Iowa, 601. Cf. Butler v. Church, 14 Bush, 540. 271 MOTIONS. P 288 tlie trial,^ nor for the first time in a reviewing court.^ Want of capacity to sue, if not taken advantage of by demurrer or answer, is waived ;^ and the objection that there is a defect of parties,* or a misjoinder of parties,' or a mis- joinder of causes of action,^ must be taken advantage of by demurrer or answer, or the right to object for such cause will be waived. The use of initial letters instead of the full name of a party may be corrected by motion to make definite, but such defect is waived by answering to the merits^ Misnomer of a defendant corporation is waived by answering to the merits, and can not be made the ground of objection to the admission of testimony at the trial. Such error must be taken advantage of in the pleadings, and before answering to the merits.^ 288. Waiver of Formal Defects, Continued. — Courts have sometimes gone a great length in the application of this rule. In an action on contract, the defendant pleaded a counter-claim for an independent tort. The plaintiff, instead of objecting to the counter-claim as improper, replied by general denial, and went to trial. The trial court excluded all evidence in support of the counter-claim. This was held to be error ; for although the counter-claim was improper, and could not have been sustained if properly objected to, •Schwarz v. Oppold, 74 N. Y. Potter v. Ellice, 48 N. Y. 321; 307. Walker v. Deaver, 79 Mo. 664. * Payne v, Flournoy, 29 Ark. 500. ^ Long v. DeBevis, 31 Ark. 480 ; ' Pierrepont v. Lovelass, 4 Hun, Tennant v. Pfister, 51 Cal. 511. 896 ; H.op v. Plummer, 14 O. S. « James v. Wilder, 25 Minn. 305; 44?, People v. Tel. Co., 31 Hun, Cloon v. Ins. Co., 1 Handy, 32; 596 ; Jones v. Steele, 36 Mo. 324 ; Blossom v. Barrett, 37 N. Y. 434 ; Palmer v. Davis, 28 N. Y. 242 ; Field v. Hurst, 9 S. C. 277 ; Finley McNair v. Toler, 21 Minn. 175 ; v. Hayes, 81 N. C. 368 ; Simpson v. Perkins v. Ingcrsoll, 1 Dill. 417 ; Greeley, 8 Kan. 586 ; Jessup v. Haskins v. Alcott, 13 O. S. 210. Bank, 14 Wis. 331; Cary v. Wheeler, * Merritt v. AValsh, 32 N. Y. 685 ; 14 Wis. 281 ; Haverstock v. Trudel, Horstekote v. Menier, 50 Mo. 158; 51 Cal. 431. Butler V. Lawson, 72 Mo. 227 ; ■" Nichols v. Dobbins, 2 Mont. Blackeley v. LeDuc, 22 Minn. 540; Nelson v. Highland, 13 Cal. 476 ; Lowry v. Harris, 12 Minn. 255 ; 74. Waits V. McCluro, 10 Bush, 76n ; » School Dist. v. Griner, 8 Kan. Davis V. Choteau, 32 Minn. 548 ; 224. Dunn V. Ry- Co., 68 Mo. 268; g 288 ORDERLY PARTS OF PLEADING. 272 the right to object had been waived, and the evidence should have been received.^ In an action for flowing plaintiff'* lands, the defendant alleged a user for more than twenty- years, but did not aver that this user was adverse. The plaintiff, instead of demurring, replied a general denial ; and on his objection, the trial court excluded all evidence in support of the alleged user. The reviewing court, admitting that the answer was demurrable for not averring the adverse character of the user, held that by replying and going to trial, the plaintiff had waived his right to object to it on that ground.^ This was clearly a mistaken application of the rule. Insufficiency in matter of substance is not waived by failure to demur ; and, if not cured by subsequent pleading, may be made the ground of objection to evidence on the trial. It seems, that a party who has filed a meritorious motion is not in default so long as his motion is pending ; but that a motion that is frivolous, and without merit, does not stand in the way of judgment by default.^ ' Roback v. Powell, 36 Ind. 515. » Kellogg v. Churchill, 1 W. L. ' White V. Spencer, 14 N. Y. M. 45 ; Kin yon v. Palmer, 20 Iowa, 247. 138. X CHAPTER XX. DEMURRERS. 289. General Grounds for Demurrer. — The philosophy of the demurrer has heretofore been explained,^ and the nature and office of demurrer at common law ^ and in equity ^ have been stated. The general object of the demurrer under tlie new procedure is the same as at common law ; it questions the legal sufficiency of the pleading demurred to. A de- murrer is not a pleading of fact ; it neither alleges nor denies any fact ; it is an objection on legal grounds, and questions the right to proceed, for the reason (1) that the court has not jurisdiction ; or (2) that the pleadings do not present a fit question for litigation ; or (8) that the inci- dents of parties, capacity, etc., do not make the occasion a pioner o;ie for invoking the action of the court. The general provision of the codes is, that the defendant may demur to the complaint when it appears on its face, (1) that the court has not jurisdiction, or (2) that the facts stated do not constitute a cause of action, or (3) that the plaintiff has not legal capacity to sue, or (4) that anotlier action for the same cause is pending between the same parties, or (5) that there is a defect of parties, plain tif: or defendant, or (6) that several causes of action are improp- erly joined. The plaintiff may demur to a counter-claim, a set-off, or a defense of new matter, on the ground that it is, on its face, insufficient in law ; and the defendant may, on like ground, demur to a reply, or to any separate traverse or avoidance therein. When the defendant demands affirm- ative relief, the plaintiff may demur on grounds similai- to those for demurrer to the complaint ; and where a countei- claim asserts a demand of a character not proper to be so i Ante, 35. ^ .^nte. 1^6. • Ante, 79. 273 ^g 290-291 ORDEELY PARTS OF PLEADING. 274 pleaded, the remedy is generally by demurrer. In a few states, misjoinder of parties plaintiff is made a ground for demurrer; and in one or two, a complaint is demurrable if the facts stated do not entitle the plaintiff to the particular relief demanded.^ The only grounds for demurrer, under the new procedure, are those specified by the codes of the several states ; ^ and these must be consulted for particular guidance in matters of such detail and of such local importance as not to fall within the general purpose and plan of this work. 290. General and Special Demurrers. — At common law, demurrers are either general or special. The former relate to matters of substance, and need not assign any par- ticular ground of objection ; the latter relate to matters of form, and must point out the formal defect with particular- ity. Under the new procedure, mere defects of form, such as redundancy, uncertainty, and duplicity, are to be cured by motion, and not by demurrer. But most of the codes require the demurrer to specify the grounds of objection ; and some of them provide that when a demurrer does not specify the grounds of objection, it shall be regarded as objecting only that the court has not jurisdiction, or that the facts stated are insufficient. While the distinct offices of the common-law demurrers are not retained in the new procedure, the distinct forms thereof are thus retained ; and this analogy, the common usage, and convenience and per- spicuity of treatment, are sufficient warrant for adopting the common-law designations, and calling that a general demurrer which assigns no particular ground of objection, and that a special demurrer which points out some particular defect. 291. General Demurrer — Want of Jurisdiction. — Jurisdiction is the power of the court to entertain an action, to hear and determine controversies therein, and to enforce its decision. To give jurisdiction the court must, b}' the constitution and the laws, have cognizance of the subject- ■ Meyer v. Dubuque, 43 Iowa. 280 ; Beale v. Hayes, 5 Sand. 640 ; 592; Iowa Code, 2648. Harper v. Chamberlain, 11 Abb. » DeWitt V. Swift, 3 How. Pr. Pr. 234. :iO DEMURRERS. § 291 matter of the action ; the defendant must be before the court, either by voluntary appearance, or by service of process ; and, in local actions, the subject of the action must be within the territorial jurisdiction of the court. The subject-matter of the action is the right asserted hy tlie plaintiff, the ground upon which he demands the judgment of the court. Juris- diction of the subject-matter is conferred only by the consti- tution and the law ; and these, upon considerations of public policy, define and limit that jurisdiction. Want of jurisdiction may be asserted by answer, or by demurrer. If it appears upon the face of the complaint that the court has not jurisdiction, the objection should be taken by demurrer ; otherwise, the facts showing want of jurisdic- tion should be brought before the court by answer. If it appears from the complaint that the subject-matter of the action does not fall within the established cognizance of the court, the complaint is demurrable. If, for example, the consideration of the demand asserted belongs to the political department of the government, the judiciary would have no authority,^ and demurrer for want of jurisdiction would be proper. Exclusive cognizance of certain matters is sometimes given to courts of special jurisdiction, such as courts of probate ; and some courts are, by their creation, given a limited juris- diction, extending only to certain specified causes. The federal courts are of special and limited jurisdiction. Tlie general government is of limited and enumerated powers, conferred upon it by the constitution. The judicial power is part of the constitutional grant of powers, and tlie federal courts are restricted to the cognizance of such matters as fall within the provisions of the constitution and the laws enacted thereunder. In courts of general jurisdiction, the right to entertain the action will be presumed, unless the want of jurisdiction appear from the complaint ; but in courts of limited or special jurisdiction there is no such pre- sumption, and the jurisdiction must aflSrmatively appear from the complaint.'* And when jurisdiction is specially > Cooley's Prin. Const. Law, 146. » Gilbert v. York, 111 N. Y. 544 ; :g 292 ORDERLY PARTS OF PLEADING. 276 conferred by statute, whether upon a court of general or of inferior jurisdiction, the coraphiint must show that the case comes within the provisions of the statute.^ The general rule, as sometimes stated, is, that " nothing shall be intended to be witJiout the jurisdiction of a superior court, but that which specially appears to be so ; and nothing shall be intended to be within the jurisdiction of an inferior court, but that which is so expressly alleged." 292. General Demurrer — Want of Jurisdiction, Con- tinued. — In local actions, such as for the recovery of real property, or the foreclosure of a mortgage, it should appear that the subject of the action is within the territorial juris- diction of the court whose action is invoked. But the com- plaint is subject to demurrer only when it affirmatively appears that the subject of the action is without the jurisdic- tion ; ^ if the locus of the subject of the action simply does not appear, the complaint is subject to a motion to make definite, but not to demurrer. If it appear from the complaint that the court has not jurisdiction of the person of the defendant, it is subject to a special demurrer for that cause ; and upon demurrer for such cause, the court will look only to the pleading, and not to the return of process.^ Want of jurisdiction of the person of the defendant may be waived ; but want of jurisdiction of the subject, or of the subject-matter, can not be. If the defendant voluntarily appear, to contest the merits of the cause, whether by motion or by formal pleading, he thereby submits himself to the jurisdiction of the court.^ Such ap- pearance, even to question the jurisdiction of the court on ground other than want of jurisdiction of the person, is a United States v. Clarke, 8 Pet. 436. by motion to quash. A naotion to Cf. May V. Parker, 29 Mass. 34 ; set aside the return attacks the Woodman v. Saltonstal, 7 Cush. truth of the facts stated in the re- 183. turn, and must be supported by * Edmiston v. Edmiston, 2 Ohio, proof aliunde ; a motion to quash 251, per curiam. the service attacks the sufficiency * Powers V. Ames, 9 Minn. 178. of the return, admitting it to be » Swan V. Iron Co., 58 Ga. 199. true. The return of process may be at- ■* Harrington v. Heath, 15 Ohio, tacked by motion to set aside, or 483 ; Fee v. Iron Co., 13 O. S. 563. 277 DEMURRERS. §293 submission of the person to its jurisdiction. ^ But appearance for the sole purpose of questioning the jurisdiction of the peisoii is not a submission of the person to the jurisdiction.^ Demurrer for want of jurisdiction may be in this form : Defendant demurs to the complaint, for the reason that the court has not jurisdiction of the person of the defendant. [Or, of the subject-matter of the action ; or, of the subject of the action.] 293. General Demurrer— Insufflciency of Facts. — An- other ground of general demurrer to the complaint is, that it does not state facts sufficient to constitute a cause of action. If the statement of the complaint does not show a remedial right in the plaintiff, against the defendant, it will not authorize the interference of the court, and is fatally defect- ive. A demurrer on this ground questions the legal suffi- ciency of the facts stated, and asks the judgment of the court thereon. Generally, therefore, a demurrer on this ground presents a question under the substantive law — Do the facts as stated, and the law as it is, authorize the action ? For example, in an action for breach of contract, such demurrer to the complaint may question the competency of the parties to the contract, the sufficiency of the consideration, the legality of the agreement, the performance of a condition precedent, the privity of the parties to the action, or the breach of the obligation ; for these are, by the substantive law, essential elements of a remedial right founded upon contract. Demurrer on this ground lies where the complaint omits any material fact,^ where it fails to show any connec- tion between the facts alleged and the demurrant,^ or where it shows that the right of action has not yet accrued.^ A complaint is not demurrable merely because the action is novel, and without precedent.^ ' Handy v. Ins. Co., 37 O. S. 36b. 677 ; Am. B. H. Co. v. Gurnee, 44 ' Smith V. Hoover, 39 O. S. 249. Wis. 49. 2 Harvester Co. v. Bartley, 94 ^ Hicks v. Branton, 21 Ark. 186 ; Ind. 181 ; Leak v. Comrs., 64 N. C. Harvey v. Chilton, 11 Cal. 114. 132. 6 Piper v. Hoard, 107 N. Y. 73; * Sinclair V. Fitch, 3 E. D. Smith, Muldowney v. Ry. Co., 42 Hun, 444 ; 23 Abb. N. C. 447, in nota. § 294 ORDERLY PARTS OF PLEADING. 278 It is tlie rule of common law, that where several plaintiffs allege a joint right, the joint right must be proved as alleged ; and if not so proved, the action must fail as to all the plaint- iffs. For example, if A. and B. sue as partners, for goods sold and delivered, and the proof should show that A. alone sold and delivered the goods, and that B. had no interest in the transaction, A. could not recover, for it would be a failure of pioof. Following this common-law rule, and treating the alleged joint character of the right as essential and material, it is held in some cases that, in legal actions, though not in equity suits, where two or more plaintiffs allege a joint right, and the facts stated show a several right in one only, or a joint right in part only, the complaint is subject to demurrer for want of sufficient facts.^ 294. General Demurrer — Insufficiency of Facts, Con- tinued. — If such demurrer be interposed to an entire pleading containing two or more causes or defenses, it will be over- ruled if the pleading be found to contain one good cause or defense ; ^ for the demurrant must stand upon his general proposition, and the court must pass upon the pleading as ' Bartges v. O'Neil, 13 O. S. 72 ; Towell v. Pence, 47 Ind. 304 Masters v. Freeman, 17 O. S. 323 ; Davidson v. King, 47 Ind. 372 DeBolt V. Carter, 31 Ind. 355 ; Wash. Tp. v. Bouney, 45 Ind. 77 Goodnight v. Goar, 30 Ind. 418 ; Everett v. Waymire, 30 O. S. 308 Berkshire v. Schultz, 25 Ind. 523 ; Nichol v. McAllister, 52 Ind. 586 Lipperd v. Edwards, 39 Ind. 165 ; Roberts v. Johannas, 41 Wis. 616 Estabrook v. Messersmith, 18 Wis. Shroyer v, Richmond, 16 O. S. 455 545; Giraudv. Beach, 3 E. D. Smith, Ry. Co. v. Hall, 26 O. S. 310 ; Dal 337. These decisions have been las Co. v. Mackenzie, 94 U. S. 660 criticised, and their autliority ques- Lowe v. Burke, 79 Ga. 164 ; Ply- tioned, on the ground that they mouth v. Milner, 117 Ind. 324 ; Ry, ignore the equitable principles Co. v. McLiney, 32 Mo. App. 166 ; which should be applied to the civil Hale v. Bank. 49 N. Y. 626 : Wright action in all its phases. Pom. Rem. v. Smith, 81 Va. 777 ; Robrecht v. 213-215. Cf. Simar v. Canaday, Marling, 29 W. Va. 765 ; Griffiths v. 53 N. Y. 298; Viles v. Bangs, 36 Henderson, 49 Cal. 566 ; Holbertv. Wis. 131, 139, 140; Tennant v. Ry. Co., 38 Iowa, 315; Carson v. Pfister, 51 Cal. 511. Cook, 50 Tex. 325 ; Strange v. Man- ' Ry. Co. v. Vancant,40 Ind. 233 McPhail V. Hyatt, 29 Iowa, 137 Modlin V. N. W. T. Co., 48 Ind. 492 Draining Co. v. Brown, 47 Ind. 19 ning, 99 N. C. 165 ; Newlon v. Reitz, 31 W. Va. 483 ; Brake v. Payne, 137 Ind. 479. 279 DEMURRERS. §294 an entirety, and can not overrule tlie demurrer as to one cause or defense, and sustain it as to another. And for the same reason, wliere a single count contains two or more causes of action, or defenses, a demurrer addressed to the entire count or staLenient should be overruled, if any one of the several causes or defenses is good.^ The proper practice in such case is, to demur severally to each cause or defense, and if they are com- mingled in one statement, the better practice is, first to have them separated, by motion for that purpose. It has been held that where facts constituting but a single right of action, or a single defense, have been improperly divided, and stated and numbered as two or more separate causes of action or defenses, a general demurrer to each separate statement should be overruled, and the pleading sustained as one entire cause of action or defense,^ treating the words and numerals distinguishing the separate statements as sur- plusage. A party may demur to one or more of several causes or defenses, and answer or reply to the others. And it has been held that where several causes or defenses are embodied in one statement, a demurrer may nevertheless be directed to one, if that one may be distinctly designated; ^ for a sub- stantial remedy ought not to be prevented by failure to ob- 1 Newlon v. Reitz, 31 W. Va. 483; 424 ; and the overruling of separate Wright V. Smith, 81 Va. 777. demurrers to the several causes in ' Everett v. Waymire, 30 O. S. such complaint might not be error 308 ; Hillman v. Hillman, 14 How. to the prejudice of the defendant. Pr. 456 ; Weeks v. Cornwall, 39 Andrews v. Alcorn, 13 Kan. 351. Hun, 643, 644 ; Norman v. Rogers, But when such separate statements 29 Ark. 365 ; Valentine, J., in An- are demurred to severally, the mis- drews v. Alcorn, 13 Kan. 351. taken division is neither waived Contra, Mfg. Co. v. Beecher, 26 nor disregarded ; the demurrant Hun, 49; Catlin v. Pedrick, 17 Wis. adopts and follows his adversary's 88. Tlie soundness of the former division of facts ; and it is a well holdings may well be doubted. It settled rule that, on demurrer, eacli is true that the separate statement separate cause or defense must of distinct causes or defenses is stand or fall by itself, and can not matter of form only .and may there- be aided by another. Bliss PI. 121 ; fore be disregarded whenimprop- Pom. Rem. 575. erly made. A verdict for the de- ' Wiles v. Suydam, 64 N. Y. 173 ; fendant on such answer would cure Wright v. Conner, 34 Iowa, 240. the defect. Shook v. Fulton, 4 Cow. §295 ORDERLY PARTS OF PLEADING. 280 serve a merely formal requirement, and a party should not be permitted to set up the defective form of his pleading to protect it from a demurrer directed against its substance. But the better practice is, to have the commingled causes or. defenses first separated, upon motion for that purpose, and then to demur. It has been seen that if a defense pleaded jointly is bad as to one, it is bad as to all who join in it.^ On the same principle, if two or more join in a demurrer, and it is overruled as to one, it will be overruled as to all.^ A demurrer for insufficiency of facts may be in this form: Defendant demurs to the complaint, for the reason that it does not state facts sufficient to constitute a cause of action. Or this is sufficient, generall}'- : Defendant demurs to the complaint. 295. General Demurrer — Statute of Limitations. — At common law, a party may avail himself of the bar of the statute of limitations only by plea ; in equity, by plea and by demurrer. In a few states, the common-law rule obtains, and the statute can be made available only by answer ; but with these few exceptions, the equity rule has been adopted, and when a pleading asserting a demand shows affirmative- ly that the statutory period has elapsed, advantage may be taken of it by demurrer. In some states, the demurrer is required to be special, stating specifically the ground of ob- jection ; but the general rule is, that when a cause of action shows upon its face that it is vulnerable to the defense of the statute, a demurrer thereto on the ground that it does not state facts sufficient to constitute a cause of action, properly presents the defense of the statute.^ This rule is well es- 1 Ante, 263. »Sturges v. Burton, 8 O. S. 215 ; « McGonigal v. Colter, 32 Wis. Combs v. Watson, 32 O. S. 228 ; 614; Webster v. Tibbitts, 19 Wis. Seymore v. Ry. Co., 44 O. S. 12; 438 ; Holzman v. Hibben, 100 Ind. Ilett v. Collins, 103 111. 74 ; Biays 338 : Clark v. Lovering, 37 Minn. v. Roberts, 68 Md. 510 ; Merriam v. 120 ; Oakley v. Tugwell, 33 Hun, Miller, 22 Neb. 218 : Hudson v. 357 ; Eldridge v. Bell, 12 How. Pr. Wheeler, 34 Tex. 356 ; Hurley v. 547 ; Dunn v. Gibson, 9 Neb. 513 ; Cox, 9 Neb. 230 ; Young v. Whitten- Walker v. Popper, 2 Utah, 96. hall, 15 Kan. 579 ; Burnesv. Crane, f^'^ntra, Crane v. Deming, 7 Conn. 1 Utah, 179 ; Howell v. Howell, 15 38?. Wis. 55 ; McArdle v. McArdle, 12 281 DEMURRERS, §295 tablished by the authority of precedent, but it is indefensible upon principle. The statute of limitations affects the remedy, but not the right ; the liability remains, and may sometimes be asserted in another jurisdiction. The statute does not assert itself, and does not affect the action, unless asserted by the defendant. The mere lapse of time does not affect the legal operation of the facts stated ; it simply enables the de- fendant, if he choose, to exercise a privilege, and to thwart the action. If the complaint states a cause of action that is, on its face, subject to the defense of the statute, and is not otherwise faulty, it is a good complaint ; it states facts suffi- cient to constitute a cause of action, and will support a judg- ment for the plaintiff. The doctrine of the rule under consideration is, then, that before the demurrer is filed, the complaint states sufficient facts ; but upon the filing of a demurrer, questioning only the sufficiency of these facts, they at once become insuffi- cient. The error of this doctrine is, that it either makes the mere lapse of time vitiate the right asserted, which is beyond the purpose and effect of the statute ; or it makes the de- murrer operate as a defense, which is beyond the office of a demurrer. If it be said that a cause of action, on its face subject to the bar of the statute, is good if the statute is not asserted, because the statute is waived by not asserting it, then we have the anomaly of waiver validating that which is defective in substance. It has been suggested, and within a jurisdiction where the bar of the statute is not a ground for special demurrer, that " the better practice undoubtedly is, to specifically state in the demurrer that the cause of action is barred." ^ This un- guarded suggestion recognizes the unfitness of the general demurrer to assert the statutory bar, and illustrates the error of the doctrine under consideration. Such practice would introduce a ground of demurrer not provided in the statute ; and such demurrer might, on motion, be stricken from the Minn. 98. Contra, State v. Spencer, i Vore v. Woodford, 29 O. S. 245, 79 Mo. 314 ; Hexter v. Clifford, 5 250 ; Seymour v. Ry. Co., 44 O. S. Col. 168 ; Brown v. Martin, 25 Cal. 12. 82 ; Brennan v. Ford, 46 Cal. 7. g 296 ORDERLY PARTS OF PLEADING. 282 files of the court as frivolous.^ Some confusion has doubtless arisen in this matter by regarding lapse of time as the thing that bars an action. It is not the lapse of time, but the asser- tion thereof hy the party otherwise liable^ that bars an action.^ 296. Special Demurrer — Want of Capacity to Sue. — A ground of special demurrer to the complaint is, that the plaintiff has not legal capacity to sue. Such incapacity arises (1) where it affirmatively appears, in the body of the com- plaint, that the plaintiff is under some personal disability, such as infancy, lunacy, or coverture ; and (2) where the plaintiff is an artificial person, or an' association of persons, or sues in a representative character, and the right to sue in such relation does not affirmatively appear. The reason for this difference — that in one case demurrer will not lie unless incapacity affirmatively appear, and that in the other it will lie unless capacity affirmatively appear — is, that where the plaintiff is a natural person, and sues as an individual, his existence and his capacity to sue are presumed, and no state- ment thereof is needed ; but where the plaintiff sues in some other capacity or relation, there is no such presumption, and qualifying statements are necessary.^ Where one sues in any representative capacity, — such as administrator, executor, guardian, trustee, receiver, or as- signee in insolvency, — he should state the facts which legally operate to clothe him with such power. In an action by a corporation, its corporate existence must, subject to certain exceptions, be made to appear by proper allegation ; and in an action by a partnership, the names of the partners should be stated in the title, and the fact of partnership should be alleged in the statement of the complaint. Where a partner- ship sues in its firm name, without disclosing the names of the partners, it must, by proper allegations, bring itself cleai- ly v/ithin the statute authorizing suits in such name. If for want of qualifying facts, the legal capacity of the plaintiff to sue does not appear, a demurrer for this cause will lie. The ' Ante, 279. fense is more fully discussed in a * The nature of this statutory de- subsequent chapter. Post, 336. » Ante, 177. 283 DEMURRERS. § 297 requirements of the complaint in this regard have heretofore been fully stated, with illustrations and citations of autliori- ties,i and need not be repeated here. The objection that the plaintiff has not capacity to sue can be raised only by special demurrer, stating this specific ground ; it can not arise on general demurrer.^ If the in- capacity exists in fact, but does not appear from the com- plaint, the objection must be taken by answer; and if not made by demurrer or by answer, the right to object is waived.3 For example, if an infant sue, not by guardian or next friend, and the defendant does not object, by answer or demurrer, he can not otherwise object, and the infant may re- cover judgment in the action.^ And the same is true where a married woman sues alone.^ Where the complaint shows that prior to the bringing of the action the plaintiff had as- signed the claim sued on, it is a defect that relates to the plaintiff's right of action, and not to his capacity to sue, and is not waived by failure to raise the objection by demurrer or answer.^ Demurrer on this ground may be in this form : Defend- ant demurs to the complaint for the reason that plaintiff has not legal capacity to sue. 297. Special Demurrer — Pendency of Another Action. — That there is another action pending between the same parties, for the same cause, is ground for special demurrer to the complaint, if it appear upon the face thereof ; other- wise, the remedy is by answer. To make the pendency of a prior action a ground of objection, it must distinctly appear that the parties are the same, and that the same right of action is involved." But if the former action is for relief not obtain- able in the latter, demurrer will not lie ;^ the principle being, ' Ante, 180. ^ Hoffman v.Plummer,140.S.448. ' People V. Crooks, 53 N. Y. 648 ; * Buckingham v. Buckingham, 36 Ins. Co. V. Baldwin, 37 N. Y. 648 ; O. S. 68. Vibert v. Frost, 3 Abb. Pr. 119. •> Bourland v. Nixon, 27 Ark. 315; 3 Palmer v. Davis, 28 N. Y. 242 ; Dawson v. Vaughan, 43 Ind. 395 ; Bulkley v. Iron Co., 77 Mo. 105 ; Sangster v. Butt, 17 Ind. 354. People V. Tel. Co., 31 Hun, 596; ^Haire v. Baker, 5 N. Y. 357. McNair v. Toler, 21 Minn. 175. Cf. Hatch v, Spofford, 22 Conn. 485. * Jones V. Steele, 36 Mo. 324. g 298 ORDERLY PARTS OF PLEADING. 284 that if full relief can be had in the one action, another action would be vexatious, and may not be maintained. The pend- ency of a prior action in a court of the United States, or of another state, is not ground of objection ; the creditor may pursue liis debtor in different jurisdictions, but is entitled to only one satisfaction.' If the pendency of another action is not taken advantage of by demurrer or by answer, the right to object is waived. ^ The objection can not be raised by motion.^ Demurrer on this ground may be in the form following : The defendant demurs to the complaint for the reason that there is another action pending between the same parties, for the same cause. 298. Special Demurrer — Defect of Parties. — When it appears from the complaint that there is a defect of parties, plaintiff or defendant, the defendant may demur. Defect of parties means a deficiency, not an excess.* If there is such defect, not apparent from the complaint, it may be shown by answer; and the defect is waived, if not taken advantage of by demurrer or answer.^ To warrant a demurrer for this cause, it must appear that the demurrant has an interest in having the omitted party joined, or that he is prejudiced by the non-joinder.^ It is not requisite that it appear from the ' Burrows v. Miller, 5 How. Pr. ^ Lowry v. Harris, 12 Minn. 255 51 ; Cook V. Litchfield, 5 Sandf . 330; Rowe v. Baccigalluppi, 21 Cal. 633 Sloan V. McDowell, 75 N. C. 29; Tenor v. Ry. Co., 50 Cal. 222 DeArmond v. Bohn, 12 Ind. 607 ; Conklin v. Barton, 43 Barb. 435 Bowne v. Joy, 9 Johns. Rep. 221 ; Albro v. Lawson, 17 Mon. B. 642 Walsh V. Durkin, 12 Johns. Rep. 99. Bouton v. Orr, 51 Iowa, 473 ; Dreut ^ Bishop V. Bishop, 7 Robt. 194 ; zer v. Lawrence, 58 Wis. 594 Ripley, C. J., in Williams v. Mc- Spencer v. Van Cott, 2 Utah, 337 Grade, 18 Minn. 88. Ins. Co. v. Gibson, 104 Ind. 336 3 Hornf ager V. Homfager, 6 How. Baldwin v. Canfield, 26 Minn. 43 Pr. 279. Featherson v. Norris, 7 S. C. 472 ■» Peabody v. Ins. Co., 20 Barb. Tarbox v. Gorman, 31 Minn. 62 339 ; Bennett v. Preston, 17 Ind. Zabriskie v. Smith. 13 N. Y. 322. 291 ; Hill V. Marsh, 46 Ind. 218 ; « Newbould v. Warren, 14 Abb. Truesdell v. Rhodes, 26 Wis. 215 ; Pr. 80 ; Littell v. Sayre, 7 Hun, McKee v. Eaton, 26 Kan. 226 ; 485 ; Stockwell v. Wager, 30 How. Lowry v. Jackson, 27 S. C. 318 ; Pr. 271 ; Ry. Co. v. Schuyler, 17 Comp. Co. V. Ins. Co.. 40 Wis. 373 ; N. Y. 592. Neil V. CoUege, 31 O. S. 15. 285 DEMURRERS. g 299 complaint that the omitted parties are living; it must not appear that they are dead.^ As a general rule, if the con- troversy can be determined without prejudice to the rights of others, or by saving their rights, a demurrer for non-joinder will not lie ; otherwise, the demurrer will be sustained.^ In an action for trespass upon lands held in common, if it appear from the complaint that some of the owners are not parties to the action, a demurrer for non-joinder will lie.^ And in an action to recover damages for the conversion of a chattel, if the complaint show that the plaintiff is a joint owner with others, not parties, demurrer will lie.* Wheie one or more may sue or defend for themselves and others, on the ground of common interest, that the parties are very numerous, or that it is impracticable to bring them all be- fore the court, a demurrer for non-joinder will not lie, if such reason for omission appear in the complaint.^ A general demurrer will not raise the objection of non- joinder ; it should be specific, and should state whether the defect is of parties plaintiff or of parties defendant.^ For ex- ample : The defendant demurs to the complaint, for the reason that there is a defect of parties plaintiff. Though in some cases it has been lield that such demurrer should name or point out the omitted person or persons.'^ 299. Special Demurrer — Misjoinder of Causes. — It is ground for special demurrer to the complaint, that several causes of action are improperly joined. The codes of the several states provide for the joinder of causes of action ; and the general rules to be gathered from these provisions have heretofore been stated.^ When causes that are not joinable are united in one complaint, the fault is misjoinder, and is remediable by demurrer, if it appears from the complaint 1 Porter v. Fletcher, 25 Minn. * Getty v. Hudson, etc., Co., 8 493. How. Pr. 177. Cf. Hulbert v. * Wallace v. Eaton, 5 How. Pr. Young, 13 How. Pr. 413. 99 ; Snyder v. Voorhes, 7 Col. 296. ' Baker v. Hawkins, 29 Wis. 576 ; 3 Dupuy V. Strong, 37 N. Y. 372. Skinner v. Stewart, 13 Abb. Pr. * Maxwell v. Pratt, 24 Hun, 448. 442. * Bronson v. Ins. Co. , 85 N. C. ^ Ante, 195 et seq. 411 ; Hammond v. Hudson, etc., Co., 20 Barb. 378. §299 ORDERLY PARTS OF PLEADING. 286 itself ; otherwise the remedy is by answer. Where several causes are commingled in one statement, the fault is dupli- city, and is remediable by motion to separately state and number.^ If causes not properly joinable are thus commingled, the defendant may, nevertheless, demur for the misjoinder ; ^ though the better practice is, first to have the confused state- ment separated, so that the several causes may distinctly ap- pear, and then to demur for the misjoinder. If a complaint contain several distinct statements, each purporting to be a separate cause of action, but together displaying only one right of action, demurrer for misjoinder will not lie.^ To make misjoinder, the complaint must display a plurality of distinct rights to be enforced, or a plurality of distinct wrongs to be redressed, and these must be such as may not, under the provisions of the statute, be joined.* If, therefore, a complaint contains two counts, of kinds not joinable, one of which states a right of action, while the other does not, there is not a misjoinder.^ And where several distinct grounds for the same recovery are stated, the complaint is not demur- rable for misjoinder ; ^ nor is a complaint stating a single right of recovery, based on one or the other of two grounds, separately stated ; "^ though in such case, the complaint should state a sufficient reason for the use of alternative state- ments.^ Where several kinds of relief are asked upon one cause of action, the prayer, though part of the complaint, is 1 Ante, 285, 286. 689 ; WiUard v. Reas, 26 Wis. 540, « Wiles V. Suydam, 64 N. Y. 173 ; 544 ; Newman v. Smith, 77 Cal. 22 Wright V. Conner, 34 Iowa, 240 ; Bedford v. Barnes, 45 Hun, 353 Zorn V. Zorn, 38 Hun, 67 ; Harris v. Jenkins v. Tliomason, 32 S. C. 254 Eldridge, 5 Abb. N. C. 278. S. M. Co. v. Wray, 28 S. C. 86 ^ Hillman v. Hillman, 14 How. Hiles v. Johnson, 67 Wis. 517. Pr. 456 ; Ward v. Ward, 5 Abb. « Williams v. Lowe, 4 Neb. 382 Pr. N. S. 145 ; Polley v. Wilkisson, Thompson v. Minford, 11 How. Pr. ,5 Civ. Proc. 135 ; Everett v. Way- 273 ; Walters v. Ins. Co., 5 Hun, mire, 30 O. S. 308 ; Tootle v. Wells, 343. 39 Kan. 452 ; Bass v. Comstock, 38 ' Everett v. Conklin, 90 N. Y. N. Y. 21. 645 ; 24 Abb. N. C. 326, in nota. * Meyer v. Van Collem, 28 Barb. Cf. Kewaunee Co. v. Decker, 30 230. Wis. 624. * Truesdell v. Rhodes, 26 Wis. « Ante, 207. 215 ; Bassett v. Warner, 23 Wis. 673, 287 DEMURRERS. §§300-301 not part of the cause of action, and there is no misjoinder. Matter of inducement, matter of aggravation, and facts to sliow special damages are collateral facts, and constitute neitlier duplicity nor misjoinder. 300. Special Demurrer — Misjoinder of Causes, Con- tinued. — Demurrer for misjoinder is not available where the objection is that the court has not jurisdiction of one of several causes of action otherwise joinable. If, for example, the subject of one cause is lands located without the terri- torial jurisdiction of the court, and the subject of the other is within the jurisdiction, the remedy is a general demurrer to the one cause for want of jurisdiction, and not a special de- murrer for misjoinder of causes.^ It is the general rule of practice, that when a misjoinder is found, upon demurrer or upon answer, the plaintiff Avill be required to elect upon which cause he will proceed; or he may divide the action, and file several complaints. Being a defect of form, misjoinder is waived if not objected to by demurrer or by answer.^ The demurrer should be specific, and may be in this form : The defendant demurs to the com- plaint, for the reason that several causes of action are im- properly joined therein. 301. Special Demurrer — Misjoinder of Parties. — By misjoinder of parties is meant an excess of jjarties. In many states this is not a ground for demurrer ; in some, a mis- joinder of parties plaintiff, and in a few, misjoinder of I)arties plaintiff or defendant, is ground for special demurrer, wliile in some cases it has been held that» iu legal actions, if several plaintiffs assert a joint right, and the allegations of fact show a several right in one, or a joint right in part only, the complaint is subject to^ general demurrer for want of sufficient facts.^ Where mis- joinder of parties is not cause for demurrer, it has been held that a demurrer for want of sufficient facts as to supernum- 1 Cook V. Chase, 3 Duer, 643 ; McCarthy v. Garroghly, 10 O. S. Dodge V. Colby, 108 N. Y. 445. For 438; Cloon v. Ins. Co., 1 Handy, further illustration of misjoinder, 32 ; Marius v. Bicknell, 10 Cal. see ante, 199 et seq. 217 ; James v. Wilder, 25 IMinn. 305» » Berry v. Carter, 19 Kan. 135 ; ^ Ante, 293. gg 302-303 ORDERLY PARTS OF PLEADING. 288 erarj parties is proper ; ^ and if the misjoinder is not appar- ent from the complaint, it may be shown in the answer.^ In at least one state, misjoinder is regarded as mere matter of surplusage ; ^ and the weight of autliority is to the effect that failure to object by demurrer or answer is a waiver.* 302. Facts Admitted on Demurrer. — It is commonly said that a demurrer admits all facts that are well pleaded.^ This is true in only a qualified sense. A demurrer questions •only the legal sufficiency of the pleading demurred to ; in determining the legal effect of a pleading, only such matters therein as are 'legally operative, and therefore properly pleaded, can be considered ; and these matters are, for the sole purpose of determining their legal sufficiency, said to be admitted by the demurrer. Any matters pleaded that have no legal operation, and are hence not proper to be pleaded, are neither admitted nor denied ; they are simply not involved in the consideration of the demurrer. In this sense, a demurrer admits the facts proper to be pleaded, or rather it assumes them to be true, for the purpose only of determining the legal question raised by the demurrer. There is no ab- solute admission, such as may be used in evidence ; the ad- mission is for the purpose of the demurrer, and not for the purpose of the action. In the consideration of a general de- :murrer, all relevant and material facts stated in the pleading •demurred to are to be taken and considered as they are •stated, even though they be informally alleged ; but imma- terial facts, legal conclusions, facts contrary to the court's judicial knowledge, and facts which the party pleading is estopped to assert, are not to be considered. 303. Demurrer Searches the Record. — In code plead- ing, as at common law,^ a demurrer to an}' pleading after the first, involves the sufficiency, in matter of substance, of the prior pleadings ; and the court, upon consideration of such 1 Palmer v. Davis, 28 N. Y. 242 ; « Burns v. Ashworth, 72 N. C, Rumsey v. Lake, 55 How. Pr. 340 ; 496 ; Green v. Green, 69 N. C. 294. Richtmeyer v. Richtmeyer, 50 '' Gillam v. Sigman, 29 Cal. 637 ; Barb. 55. Long v. DeBevois, 31 Ark. 480. » Canal Co. v. Snow, 49 Cal. 155. ' Ante, 83. • « Ante, 85. 289 DEMURRERS. §303 demurrer, will examine the whole record, and will give judg- ment against him who filed the first pleading that is insuffi- cient in substance.^ Formal defects in prior pleadings are not reached by demurrer to a subsequent pleading, because these are waived by pleading to the merits ; ^ and it is only a general demurrer that searches the record, for a special demurrer is applicable only to the particular defect specified.^ Under this rule, a general demurrer to an answer reaches a complaint that shows a want of jurisdiction of the subject- matter, or of the subject of the action, or that does not state facts constituting a cause of action ; * and a demurrer to a reply will reach an answer that is insufficient in substance.^ And a demurrer to a reply to a cross-complaint, or a counter- claim, reaches the pleading so replied to.^ In all such cases, the demurrer is in effect carried back, and sustained as a demurrer to such former defective pleading^ But a demur- rer to an answer in abatement will not reach back to the complaint,^ for such answers are not addressed to the com- plaint. It has been held that a demurrer to an answer reaches a defect of substance in the complaint, notwithstanding a previous demurrer to the complaint had been overruled.^ This is upon the ground that the filing of an answer to the • Young V. Duhme & Co., 4 Met. v. O'Donnell, 34 N. J. L. 408 ; Peo- (Ky.) 239 ; Martin v. McDonald, 14 pie v. Booth, 32 N. Y. 397. Mon. B. 544 ; Bank v. Lockwood, * Stratton v, Allen, 7 Minn. 502 16 Ind. 306 ; Brown v. Tucker, 7 Lockwood v. Bigelow, 11 Minn. Colo. 30; Trott v. Sarchett, 10 113; Trott v. Sarchett, 10 O. S, O. S. 241 ; People v. Booth, 32 N. 241 ; Person v. Drew, 19 Wis. 225 Y. 397 ; Hunt v. Bridge Co., 11 Lawton v. Howe, 14 Wis. 241. Kan. 412, 433 ; Scott v. State, 89 «* Menifee v. Clark, 35 Ind. 304 Ind. 368. Brook v. Irvine, 41 Ind. 430. » Aurora City v. West, 7 WaU. ' Hillier v. Stewart, 26 O. S. 652 S2. 1 Wilhite v. Hamrick, 92 Ind 3 Stratton v. Allen, 7 Minn. 502 : 594 ; Wood, J., in Headington v, Hobbs V. Ry. Co., 12 Heisk. 526 ; Neff, 7 Ohio, 229 ; Okey, J., in Ry Bank v. Hendrickson, 40 N. J. L. Co. v. Mowatt, 35 O. S. 284. 52; McEwen v. Hussey, 23 Ind. « Price v. Ry. Co., 18 Ind. 137 395 ; Allen v. Crofoot, 7 Cow. 46 ; Shaw v. Dutcher, 19 Wend. 216, Lipe V. Becker, 1 Den. 568 ; Tubbs » Johnson v. Ry. Co.. 16 Fla. 623 V. Caswell, 8 Wend. 129 ; Brehen Cummins v Gray, 4 Stew. & Port. 19 n'^r § 304 ORDERLY PARTS OF PLEADING. 290 merits in such state of case is a waiver of the demurrer, which, in theory, is withdrawn to make place for the answer. Formerly, the demurrer was actually withdrawn, to avoid tlie entry of a judgment quod recuperet thereon. 304. Pleading Over Without Demurrer. — All formal defects in pleadings, whether such as may be corrected on motion, or such as may be corrected on demurrer, are waived by pleading to the merits ; ^ but where a pleading is defect- ive in substance, and therefore subject to a general demur- rer, tlie defect is not waived by pleading over, or by going to trial without demurring, unless the defect be cured by pleading subsequent to the defect.^ A demurrer admits the truth of all facts stated that are proper to be pleaded ; but, e cotiverso, it is not the effect of a pleading of fact to admit the sufficiency in law of facts adversely alleged in a prior pleading. The reason is, that the law is not variable ; it is not to be pleaded, and it is not to be affected by allega- tion. If a pleading does not state a cause of action or a defense, there is no right or defei:kse to be maintained by the proof ; and proof without allegation does not avail. It follows, therefore, that where a pleading is insufficient in substance, the opposite party ma}^ without demurring, gen- erally avail himself of such insufficiency. He may do thia in various ways, such as by objecting to the introduction of evidence at the trial,^ by motion in arrest of judgment, by motion for judgment non obstante veredicto, or by writ of ?rror. For example, suppose a plaintiff alleges that defend- ..nt promised to make him a gift of certain property, but on demand refused to deliver it, and asks judgment for its value; and suppose the defendant, instead of demurring, answers a denial of the alleged promise. The defendant may, upon trial, object to the introduction of evidence, and may move for instructions to the jury ; he may, after verdict against him, move for a new trial, and in arrest of judgment ; 1 Grove v. Kansas, 75 Mo. 672 ; 283 ; Gray v. Ryle, 18 Jones & S. Sappington v. Ry.Co., 14 Mo. App. 198 ; 5 Civ. Proc. 387. 86 ; School Dist. v. Mclntire, 14 » Brown v. Galena, M. & S. Co., Neb. 46, 50. 32 Kan. 528. «^-ople V. Ry. Co., 42 N. Y. 291 DEMURRERS. §§305-306 and he may proceed in error. It must be borne in mind, however, that faults in pleading are sometimes cured by the subsequent pleadings, and they are sometimes aided by verdict.^ 305. Pleading Over Without Demurrer, Continued. — "Whether a party shall demur or plead to a defective pleading is sometimes a question of expediency. If the defect be one of form, it may be cured by amendment, if pointed out by motion or demurrer ; and very often it may as well be waived by pleading over, unless some advantage is to be gained by the delay sometimes incident to amendment. If the defect be one of substance, it is well to consider whether it is a defect that is inherent in the case, or one that can be cured by amendment. If it be a defect that may be removed by amendment, it may sometimes be expedient to plead over, and to raise the legal objection at a later stage of the case, rather than to demur, and thus take the hazard of enlighten- ing the adversary, and enabling him to fortify his case by amendment. On the other hand, the proverbial indulgence of courts in the way of amendments, and the fact that costs are allowed on the sustaining of a demurrer, and ma}"- or may not be allowed if the objection is first made at a later stage, are matters not to be overlooked. It must be borne in mind in this connection that it is only where the pleading is wholly insufficient that objection to it may be asserted after pleading over. Parties are required to assert all objections as to form before they proceed to trial ; and under the new procedure, contrary to the common- law rule, every reasonable intendment is to be made in favor of the pleading. 306. Pleading After Demurrer Overruled. — If a party file, at the same time, both a demurrer and a pleading of fact, addressed to the same cause or defense, he should be required to elect between the two incongruous issues he thereby pre- sents ; ^ and where a party has filed a demurrer to a pleading, ' Steph. PI. 225. man v. Weider, 5 How. Pr. 5 ; •' Canal Co. v. Webb, 9 Ohio, 136 ; Fisher v. Scholte, 30 Iowa, 221. Stocking V. Burnett, 10 Ohio, 137 ; In this case it was held that filing Davis V. Hines, 6 O. S. 473 ; Spell- an answer with a demurrer is a ,^5 307 ORDERLY PARTS OF PLEADING. 292 and thereafter pleads thereto before his demurrer has been ruled upon, he waives the defect demurred to, if it is one that may be waived,^ When such demurrer has been erroneously overruled,and the demurrant wishes to take advantage of the error, he must rest upon his demurrer, and allow final judgment to be entered against him ; for if he pleads to the insufficient pleading, he thereby waives all objection thereto, except for want of jurisdiction of the subject or of the subject-matter, and for want of sufficient facts.^ 307. Pleading After Demurrer Overruled — Rationale of the Rule. — The rule stated in the last preceding section is upon the theory that the subsequent pleading of fact in response to the pleading demurred to is, by implication, an abandonment and withdrawal of the demurrer, which, in con- templation of law, ceases thereafter to be a part of the record. By the strict rule of the early common law, if defendant's demurrer to the declaration was overruled, the case stood with the facts of the declaration established, and judgment quod recuperet was entered thereon. ^ When, in later time» the courts permitted the defendant, on leave obtained, to plead to the declaration after his demurrer thereto had been overruled, he was required to withdraw his demurrer, and waiver of the demurrer and of any 29 ; Dupuis v. Tliompson, 16 Fla. ruling thereon ; following the rule 69 ; Johnson v. Ry. Co. 16 Fla. 623 ; in the English Chancery practice. Ward v. Moorey, 1 Wash. Ter. 104 ; 1 Gordon V. Culbertson, 51 Ind. People v. Ry. Co., 42 N. Y. 283; 334 ; Morrison v. FLshell, 64 Ind. Pittman v. Myrick, 16 Fla. 692 ; 117 ; Moss V. Printing Co., 64 Ind. Farrar v. Triplett, 7 Neb. 237 ; Freas 125 ; Calvin v. State, 12 O. S. 60 ; v. Englebrecht, 3 Col. 377 ; Stan- Vose V. Woodford, 29 O. S. 245 ; bury v. Kerr, 6 Col. 28 ; Harral Pierce v. Minturn, 1 Cal. 470. v. Gray, 10 Neb. 186 ; O'Donohue " Pottinger v. Garrison, 3 Neb. v. Hendrix, 13 Neb. 255 ; Fuggle 221 ; Mitchell v. McCabe, 10 Ohio, v. Hobbs, 42 Mo. 537 ; Board Ed. 405 ; Richards v. Fanning, 5 Oreg. v. Hackmann, 48 Mo. 243 ; Meyer 356 ; Westphal v. Henney, 49 Iowa, v. Binkleman, 5 Col. 262 ; Tennant 542; Smith V.Warren Co., 49 Iowa, v. Pfister, 45 Cal. 270; Pickering 336; Hagely v. Hagely, 68 Cal. v. Tel. Co., 47 Mo. 457 ; Birchard, 348; Young v. Martin, 8 Wall. J., in Watson v. Brown, 14 Ohio, 354; Walker v. Kynett, 32 Iowa, 473. Cf. Kitchen v. Loudenback, 524 ; Finley v. Brown, 22 Iowa, 48 O. S. 177. 538 ; United States v. Boyd, 5 How. » Ante, 86. 4i^ TO, /^c^ /ol ^ /^ .,/^3^ 293 DEMURRERS. §308 the case was treated thereafter as if no demurrer had been filed. Judgment on the demurrer was thereby avoided, and the demurrer did not become a part of the record. In modern practice, while the record shows the demurrer and the over- ruling thereof, it is, in legal contemplation, and practically, though not formally, abandoned and withdrawn ; and a de- fendant who pleads to the merits after his demurrer to the complaint has been overruled can not, with the exceptions aforesaid, again avail himself of the same ground of objection to the complaint, by objection to evidence on the trial, by motion in arrest of judgment, or by assignment of error. In other words, he must elect to stand upon his demurrer and decline to plead further, or to abandon the ground of de- murrer and rely upon his issue in fact. 308. Amending After Demurrer Sustained. — It lias been held, generally, that if a party amend his pleading, after a demurrer thereto has been erroneously sustained, he waives the error.^ This certainly is so, if by the amendment he abandons the original claim or defense.* But it has well been suggested, that if a party is thus driven to the necessity of amending an already sufficient pleading, and inserting therein needless allegations ; and if his proof should sustain the necessary original averments, but should fail as to the needless averments brought in by the amendment ; it would hardly be held that he had waived his objection to the erroneous ruling of the court upon the demurrer.^ iHurd V. Smith, 5 Col. 233; Ayres v. Campbell, 3 Iowa, 582. Perkins v. Davis, 2 Mont. 474 ; Cf. Evans v. Gee, 11 Pet. 80. Pottenger v. Garrison, 3 Neb. 222 ; * Bank v. Street, 16 O. S. 1. 3 Bliss PI. 417 ; Max. PI. 380. ec ^uO, (0{, I '^ lOi, ^c(.. CHAPTER XXI. AMENDMENTS. 309. Origin and Nature of Amendments. — An amend- ment is the correction of some error or defect in the pleadings, process, or proceedings in a cause, made for the furtherance of justice. When the parties made their allegations ore tenus^ in open court, they were allowed, by the judges, during this oral altercation, to correct and adjust their statements, and were not held strictly to their statements as originally made.^ This indulgence has been continued, with some modifications and restrictions, to the present day. After the introduction of written pleadings, and when there was a tendency in the common-law courts to determine causes upon matters of mere form, amendments were provided for by a series of enact- ments, called statutes of amendment and jeofails, whereby any slip or error in matters of form might be amended by the pleader, or overlooked by the court. The general doctrine of the common law is, that, inde- pendently of statute, the power is inherent in the court to allow amendments at any time before judgment, and even after judgment and during the term at which judgment is entered ; for until the term is ended, the proceedings are in fieri, and subject to the control of the court. Amendments, however, being in furtherance of justice, are always to be limited by due consideration of the rights of the opposite party ; and where he would be prejudiced, or exposed to unreasonable delay, by the amendment, it should not be allowed. 310. Nature of Amendments, Continued. — An amend- ment that is a substitute for the original pleading is an aban- donment of the original, and only the amended pleading can 1 Steph. PI. 107. 294 295 AMENDMENTS. §311 thereafter be considered by the court ; ^ though any admis- sions in the abandoned pleading may be used as evidence against the party .^ But an amendment to a pleading, one that is in terms only an addition thereto, does not dispense with the original pleading, but is to be taken and considered in connection therewith. The amendment of a complaint, if it amounts to a restate- ment of the original cause of action, relates back to the com- mencement of the action ; so that an amended complaint is regarded as stating the right of action as it existed when the suit was commenced.^ It has been held that by amendment of the complaint, a right of action not included in the original may be saved from the bar of the statute of limitations.* But upon principle, as well as by the weight of authority, when a complaint is amended by inserting a new cause of action, the action is not commenced as to such new cause until the amended complaint is filed ; ^ nor is there lis pendens as to such new cause, before the amendment. An exhibit attached to an original pleading must be attached to an amendment that supersedes the original.^ 311. Amendments Under the Reformed Procedure. — The several codes make ample provision for the amendment of pleadings, to the end that actions may not be defeated on grounds that do not affect the merits of the controversy.'^ These provisions vary in some respects, but their substantial features are almost identical in the several codes. Amend- ments under the new procedure may be divided into two general classes — (1) those made of right, and (2) those 1 Washer v. BulUtt Co., 110 U. Brown v. mn. Co., 32 Kan. 528; S. 558, 561 ; State v. Simpkins, 77 Blake v. Minkner, 136 Ind. 418. Iowa, 676 ; Sands v. Calkins, 30 * Ward v. Kalbfleisch, 21 How. How. Pr. 1 ; Dunlap v. Robinson, Pr. 283. Contra, Blake v. Mink- 12 O. S. 530 ; Barber v. Rey- ner, 136 Ind. 418. nolds, 33 Cal. 497. ^ Anderson v. Mayers, 50 Cal. ' Iron Co. V. Harper, 41 O. S. 525 ; Jeffers v. Cook, 58 Cal. 147 ; 100; ROTHROCK, J., in State v. Sheldon v. Adams, 18 Abb. Pr. 405; Simpkins, 77 Iowa, 676. Blake v. Minkner, 136 Ind. 418. 3 Worley v. Moore, 97 Ind. 15 ; « Holdridge v. Svreet. 23 In.l. 118; Ryan v, Rv. Co., 21 Kan. 365; McEwen v. Hussey, 23 Ind. 395. •> Gould V. Stafford. \f'\ C.-\. r.'^. §312 ORDERLY PARTS OF PLEADING. 296 made only upon leave of the court. The plaintiff may, without leave, amend his complaint at any time before answer is filed ; but must serve notice thereof on the defend- ant, who shall have the same time to answer or demur there- to as to the original. Within a specified time, generally ten days, after demurrer is filed, the defective pleading may be amended without leave, on payment of costs since the filing thereof, and notice to the demurrant. The right to amend without leave can, it seems, be exercised but once as to the same pleading.^ When a demurrer is overruled, the demurrant may answer or reply, if the court is satisfied that he has a meritorious claim or defense, and that he did not demur for delay ; and when a demurrer is sustained, the adverse party may amend, if the defect can be remedied by amendment. But the right to plead or to amend after a ruling upon the demurrer, being conditioned as aforesaid, can be exercised only upon leave of the court, based upon a finding, express or implied, that the condition exists. If, therefore, a complaint be adjudged in- sufficient on demurrer, and no leave to amend be asked, final judgment for costs may be entered against the plaintiff.^ 312. Amendments Under the Codes, Continued. — The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any plead- ing, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case ; or, when the amend- ment will not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved ; and when an action or proceeding fails to conform to the provisions of the particular code, the court may generally permit the same to be made conformable thereto by amend- ment. And the court must, in every stage of an action, dis- regard any error or defect in the pleadings or proceedings that does not affect the substantial rights of either party. 1 Sands v. Calkins, 30 How. Pr. « Devoss v. Gray, 22 O. S. 159. 1 ; White v. Mayor, 14 How. Pr. 495. 297 AMENDMENTS. §313 When there is a variance between the allegations of a party and his proofs upon the trial, if the disagreement is not material, and so has not misled the adverse party, the court may order the facts to be found according to tlie evi- dence, and may direct an amendment of the pleadings without costs ; if it be made to appear to the court that the disagreement has misled the adverse party, to his prejudice, the variance is to be deemed material, and the court may order an amendment, and impose such terms as are just ; but when the disagreement amounts to a failure oi proof, the variance is fatal, and is not remediable by amend- ment. The allowing and refusing of amendments, excepting those that may be made without leave, rests in the sound discretion of the court ; and the exercise of this discretion will not be reviewed on error, unless there has been manifest abuse of the discretion, appearing from the record.^ If a court has not jurisdiction before an amendment, it has none to allow the amendment.^ When either party amends his pleading, the adverse party has a right, ipso facto, to amend his pleading in response thereto • ^ and when the court is satisfl.ed, by affidavit or other- wise, that in consequence of an amendment the adverse party can not be ready for trial at the time fixed, the trial may be postponed, or the cause continued to another term. 313. What May be Done by Amendment. — Where a pleading is to be amended by striking out or by inserting ian allegation, it should be done by tiling a new pleading, or a statement of the amendment, designating the matter to be inserted or to be taken out, and not by mutilating the paper 1 Clark V. Clark, 20 O. S. 128 ; Finley, 18 S. C. 305 ; Harney v. Brock V. Bateman, 25 O. S. 609 ; Corcoran, 60 Cal. 314 ; Bowles v. Hedges v. Roach, 16 Neb. 673; Doble, 11 Oreg. 474; Gould v. White V, Culver, 10 Minn. 192 ; Rumsey, 21 How. Pr. 97 ; Dennis v. Dyer V. McPhee, 6 Colo. 174 ; Butler Snell, 54 Barb. 411; Stanton v. V. Paine, 8 Minn. 324 ; Ry. Co. v. Kenrick, 135 Ind. 382. Finney, 10 Wis. 388 ; Gillett v. 2 Denton v. Danbury, 48 Conn. Robins, 13 Wis. 319; Gilchrist v. 368. Kitchen, 86 N. C. 20 ; Henry v. » GiU v. Young, 88 N, C. 58. Cannon, 86 N. C. 24 ; Trumbo v. § 313 ORDERLY PARTS OF PLEADING. 298 on file; ^ though where there is plainly a mere orthographical or clerical error, sncli as the use of a wrong date, or a wrong name or word, it is tlie prevailing practice either to disregard such mere oversight, or with the consent of the court, to correct it by erasure and interlineation.^ The weight of authority is to the effect that a party may not, by amendment of his pleading before trial, change the nature and scope of his action or defense ; for this would not be an amendment of the original cause or defense, but the substitution of another therefor.*^ In an action to recover damages for flowing plaintiff's lands, he may not, by amend- ment of his complaint, charge the defendant, under the statute, for appropriating the land.* But in such action, an amendment claiming damages for injury to the crops on the land is permissible,^ because it only enlarges the scope of recovery upon the same act declared on in the original complaint, and does not set up a new cause of action. And in an action for legal relief, an amendment asking for equi- table relief also, both demands being based upon the facts originally stated, does not change the original ground of the action, and is allowable.^ On appeal, the appellate court may not allow another cause of action, not within the jurisdiction of the lower court, to be substituted by amend- ment, unless by consent of all parties. An appeal confers on the appellate court jurisdiction of only the right of action asserted in the lower court.*^ 1 Hill V, Supervisor, 10 O. S. 621. Contra, Robinson v. Willoughby, Cf. Schneider v. Hosier, 21 O. S. 67 N. C. 84 ; Mason v. Whitely, 4 98. Duer, 611 ; Deyo v. Morss, 144 N. '^ Fitzpatrick v. Gebhart, 7 Kan. Y. 216. Cf. Reeder v. Sayre, 70 35. N. Y. 180; Brown v. Leigh, 49 •' Supervisors v. Decker, 34 Wis. N. Y. 78. .378 ; Ilutledge V. Vanmeter, 8 Bush. "• Newton v. AUis, 12 Wis. 378. 3")1 ; Ramirez V. Murray, 5 Cal. 222; ^ Ry_ Co. v. Pape, 73 Tex. 501. Scovill V. Glassner, 79 Mo. 449 ; « Getty v. Ry. Co., 6 How. Pr. McKeighan v. Hopkins, 19 Neb. 33; 269. Sweet V. Mitchell, 15 Wis. 641 ; •" VanDyke v. Rule, 49 O. S. 530, Stevens v. Brooks, 23 Wis. 196 ; 535. Cf. Deyo v. Morss, 144 N. Y. Givens v. Wheeler, 5 Colo. 598 ; 216. Givens v. Wheeler, 6 Colo. 149. 299 AMENDMENTS. §§314-315 314. What Done by Amendment, Continued. — A plaint- iff may not, by amendment before trial, change his action from one in tort to one in contract, or vice versa.^ Perhaps the weight of authority is in favor of the right of a plaintiff, on leave obtained, to change a purely legal cause into an equitable cause. ^ Such leave has generally been given upon the trial, to conform the pleadings to the evidence ; but never, except when justice and fairness require it. A plaintiff may, of right, amend his complaint by striking out a cause of action ; ^ and a new cause of action or defense, not inconsist- ent with the original, may be added by amendment.^ But facts occurring subsequent to the commencement of the action can not be set up by amendment ; these can be brought into the record only by supplemental pleading.^ Making new parties, in invitum, should be by amendment. The prayer for relief may be amended, for the prayer is not a part of the cause of action, and a change of the former does not affect the latter.^ In an action for breach of promise made when the defendant was an infant, the plaintiff may amend by alleging ratification after lie attained his majority.^ 315. What Done by Amendment, Continued. — Courts, in the exercise of their discretion, will not, as a rule, give leave to assert, by amendment, what are called unconscion- able defenses, such as the statute of limitations, or usury.® ' Supervisors v. Decker, 34 Wis. Tex. 74 ; McLane v. Paschal, 63 378 ; Lumpkin v. Collier, 69 Mo. Tex. 102 ; Tiernan v. Woodruff. 5 170 ; Ramirez v. Murray, 5 Cal. McLean, 135. Cf. Brown v. Leigh, 222 ; Hackett v. Bank, 57 Cal. 335 ; 49 N. Y. 78. Lane v. Beam, 19 Barb. 51. * Van Maren v. Johnson, 15 Cal. ^ Beck V. Allison, 56 N. Y. 366 ; 308 ; McCaslan v. Latimer, 17 S. C. Robinson v. Willoughby, 67 N. C. 133; Lampson v. McQueen, 15 How. 84 ; NeweU v. Newell, 14 Kan. 202 ; Pr. 345. Barnes v. Ins. Co., 75 Iowa, 11; « Getty v. Ry. Co., 6 How. Pr. Escli V. Ins. Co., 78 Iowa, 334. Cf. 269 : Reed v. Mayor, 97 N. Y. 630. Carmichael v. Argard, 52 Wis. ' Schreckengast v. Ealy, 16 Neb. 607 ; Kavanaugh v. O'Neill, 53 Wis. 510. 101 ; Gray v. Brown, 15 How. Pr. « Sheets v. Baldwin's Admr. 13 555. Ohio, 120; Newsom'sAdm. V. Ran, 3 Watson V. Bushmore, 15 Abb. 18 Ohio, 240 ; Beach v. Bank, 3 Pr. 51. Wend. 574; Jackson v. Varick, 2 * McQueen v. Babcock, 22 How. Wend. 294 ; Plumer v. Clarke, 59 Pr. 229; Williams v. Randon, 10 Wis. 646; Sagory v. Ry. Co., 21 §316 ORDERLY PARTS OF PLEADING. 300 Though there is a tendency, in some of the courts, to recede from this attitude toward such defenses, especially where there lus been accidental default,^ or where the defense is to be used as an instrument of justice, and not of strategy. At the trial, pleadings may, on leave obtained, be amended to conform to the evidence, where there is a mere variance, and not a failure of proof. Where an action is on a contract, or on a certificate of indebtedness, an amendment alleging that the debt is due for services has been allowed at the trial,^ being a change in the form of stating the right, rather than a change of the claim. So an amendment simply increasing the amount claimed ; ^ or alleging special damages ; * or ask- ing damages instead of specific performance,^ has in like manner been allowed at the trial. But such amendment should not be allowed to change a cause of action from one foi- equitable relief, to one in ejectment ; nor from a charge of fraud, to a demand on contract ; ^ nor from an action of trover and conversion, to one for fraud and deceit;'^ nor from a claim of ownership, to an alleged lien,^ for the claim of title is a waiver of any lien ; nor from an action on the case, to one on an express contract ; ^ and where a complaint for conversion contains an allegation waiving the tort, an amendment striking out the waiver should not be allowed on the ti-ial.io 316. Amendments After Trial. — After trial, amendments How. Pr. 455 ; Coit v. Skinner, 7 ilton v. Ry. Co., 13 Abb. Pr. N. S. Cow. 401 ; Wolcott v. Farlan, 6 318. Hill, 227. ■» Miller v. Garling, 12 How. Pr. 1 Barnett v. Meyer, 10 Hun, 109 ; 203 ; demons v. Davis, 6 Thomp. Gilchrist V. Gilchrist, 44 How. Pr. & C. 523 ; Baldwin v. Nav, Co., 4 317 ; Bank v. Bassett, 3 Abb. Pr. Daly, 314. N. S. 359. Cf. Gourlay v. Hutton, ' Beck v. AUison, 56 N. Y. 366. 10 Wend. .595. « People v. Dennison, 84 N. Y. ' Turnow v. Hochstadter, 7 Hun, 272. 80 ; Steamship Co. v. Otis, 27 Hun, ■> Parker v. Rodes, 79 Mo. 88. 452 ; Woolsey v. Trustees, 4 Abb. « Hudson v. Swan, 83 N. Y. 553. Ct. App. 639. 9 Storrs v. Flint, 14 Jones «fe S. 3 Dakin v. Ins. Co., 13 Hun, 122 ; 498. Knapp V. Roche, 62 N. Y. 614 ; " Cushman v. Jewell, 7 Hun, 535. Raleigh V. Cook, 60 Tex. 438 ; Ham- 301 AMENDMENTS. §317 are spariugly and cautiously allowed ; and never, where the amendment will bring upon the record matters not involved in the trial. In an action on a void contract, the complaint may be so amended, after trial, as to claim on a quantum meruit ; ^ and a vague and indefinite answer may be so amended as to conform to the proof ; ^ and even after verdict and judg- ment, a defective prayer may be amended.^ But a complaint can not be amended after trial by increasing the amount of damages claimed, except upon the granting of a new trial ;* nor can it be amended in any way that will change the nature of the action.^ 317. Supplemental Pleadings. — The pleadings, original and amended, are confined to facts existing at the commence- ment of the action. New facts relevant to the action, and material to the right or to the defense, may arise after the suit is begun ; and in order that the parties may have the benefit of such new facts, and that the court may render its judgment upon the facts as they exist at the time of rendi- tion, it is provided that parties may be allowed, on such terms as to notice and costs as the court may prescribe, to file a supplemental complaint, answer, or reply alleging material facts which occur subsequent to the commencement of the action. This is the only way to bring upon the record facts "which occur pending the suit. Such facts can not, of right, be stated in an original answer or reply, and they can not be incorporated into an original pleading by amendment, because amendments, like original pleadings, can embrace only facts existing at the time the action is begun. A sup^^lemental pleading is not, like pleas puis darrein continuance, a substi- tute for the original pleading ; it is merely an addendum, and must therefore be consistent with, and in aid of, the original pleading ; ^ though in some instances a supplemental ' Thomas v. Hatch, 53 Wis. 296. ) ^Decker v. Parsons, 11 Hun, 295 ; » Trippe v. DuVal, 33 Ark. 811. Bowman v. Earle, 3 Duer, 691. * Draper v. Moore, 2 Cin. Rep. * Andrews v. Bond, 16 Barb. 633 ; 167; Johnson, J., in Culver v. Nosserv. Corwin,36 How. Pr. 540; Rogers, 33 O. S. 537. Walter v. Bennett, 16 N. Y. 250. * Pilaris V. Gere, 31 Hun, 443 ; • Tiffany v. Bowerman, 2 Hun^ §318 ORDERLY PARTS OF PLEADING. '^{j-^ answer may be solely relied upon, and it may sometimes be proper to file an amended and supplemental pleading. A new and independent right of action can not be asserted by a supplemental complaint ; ^ and if the original complaint does not state a right of action, its defects can not be remedied by a supplemental pleading,^ for supplemental pleadings do not relate back, like amendments, to the com- mencement of the action. But supplemental facts, if they further develop the original right of action, or extend or vary the relief, are available by way of supplemental complaint^ and in aid of the original complaint, even though they are such facts as would, by themselves, constitute a right of action.^ 318. Supplemental Pleadings, Continued. — In replevin for sheep, a supplemental complaint may ask damages for increase in lambs, and for wool shorn,* these being in the nature of special damages ; a supplemental complaint may allege the further circulation of the libel complained of ; * and if, pending suit, a third person assume the liability of the defendant in respect to the matter in litigation, he may be made a party by supplemental complaint. ^ In an action for divorce, a supplemental answer may allege the plaintiff's adultery pending suit ; "^ and settlement after action brought may be so pleaded ; ^ and so may payment, or 643 ; Slauson v. Englehart, 34 Barb, after the commencement of the 198; Buchanan v. Comstock, 57 action, and stated in a supplemental Barb. 582 ; Sutliff, J. , in Gibbon complaint. 2 Bisli. on Mar. and V. Dougherty, 10 O. S. 365. Cf. Divorce, 319. Eckert v. Binkley, 134 Ind. 614. * Buckley v. Buckley, 12 Nev. ' Tiffany v. Bowerman, 2 Hun, 423. 643 ; Moon v. Johnson, 14 S. C. 434. » Corbin v. Knapp, 5 Hun, 197. > Lowry v. Harris, 12 Minn. 255 ; « Prouty v. Ry. Co., 85 N. Y. 272. Smith V. Smith, 22 Kan. 699 ; Mul- Cf. Ervin v. Ry. Co , 28 Hun, 269. ler V. Earle, 5 Jones & S. 388 ; ' Strong v. Strong, 3 Robt. 669, Bostvvick V. Meuck, 4 Daly, 68. Cf. 719 ; Burdell v. Burdell, 3 How. Ervin V. Ry. Co., 28 Hun, 269. ' Pr. 216. Public policy forbids that ' Latham v. Richards, 15 Hun, the marriage relation shall be judi- 129 ; Haddow v. Lundy, 59 N. Y. cially dissolved, if, at the time of 320. In some actions for divorce, trial, there is in fact any valid rea- the plaintiff has been allowed to son for withholding such decree, rely entirely upon grounds arising ' Christy v. Perkins, 6 Daly, 237. [}0'd AMENDMENTS. §319 release, pending suit,^ or any agreement affecting the action. ^ If the defendant acquire title to property in dispute, pending the action, he must, to avail himself of it, plead it by supple- mental answer.^ Additional installments of an obligation, falling due pending the action, can not be recovered therein without amendment or supplemental pleading.* But in an action to enforce a lien securing a series of notes, if the original complaint shows that the lien secures the notes yet to mature, and that the action is for a remedy on all notes maturing before final decree, neither amended nor supplemental pleading is requisite.^ The riglit to object to a supplemental complaint on the ground that it seeks to maintain the action upon facts occur- ring subsequent to the filing of the original complaint is waived if the defendant, without objecting, pleads to the merits and goes to trial .^ 319. Supplemental Pleadings, Continued. — In a very few of the codes, supplemental pleadings are allowed to in- clude newly discovered facts ; that is, facts that existed at the commencement of the action, but were not known to th-e party at the time of filing his original pleading. This is a violation of the true theory of supplemental pleading. Newly discovered, but pre-existent, facts go to the party's original right, and should be incorporated into the original pleading by amendment thereof. Supplemental pleadings, like most amendments, can be filed only on leave of the court ; but since, without leave, there is neither opportunity nor right to plead supplemental facts, the leave to plead such facts, when they are both rele- vant and material, is a matter of right, and should always be given, unless the right has been forfeited by laches, or there ' Matthews v. Mfg. Co., 3 Robt. * Bank v. East Chester, 44 Hun, 711 ; Mitchell v. Allen, 25 Hun, 543 ; 537. Cf. Hamlin v. Race, 78 111* Jessup V. King, 4 Cal. 331. 422. 2 Hasbrouck v. Shuster, 4 Barb. ^ "Whiting v. Eichelberger, 16 285. Iowa, 422. Cf. Holly v. Graff, 29, » Kahn v. Min. Co., 2 Utah, 174 ; Hun, 443. Moss V. Shear, 30 Cal. 467 ; McMinn « Pinch v. Anthony, 10 Allen, 470. V. O'Connor, 27 Cal. 246. g310 ORDERLY PARTS OF PLEADING. a04: is other good reason to withhold it. It follows, that the dis- cretion of the court in allowing or refusing supplemental pleadings is a sound judicial discretion, and not an arbitrary sic volo ; and it is error to refuse the leave, unless the refusal rests upon reasonable and just grounds.^ If new facts, proper for a supplemental pleading, are asserted in an original pleading, or in an amendment thereof^ and the adversary party responds thereto, or goes to trial,, without objecting, the right to object is waived.^ And if a paper styled " Supplemental Complaint " contain allegations proper only in an amended complaint, it is within the discre- tion of the court to treat it as an amendment.^ It is not the name that gives force to a pleading, but its averments ; in fact, it is a general rule, that the character of a pleading is to be determined from its averments, and not from the name given to it. An amended or supplemental pleading, filed on leave, need not aver the leave of the court ; this will otherwise appear of record. 1 Holyoke v. Adams, 59 N. Y. 281 ; Pinch v. Anthony, 10 Allen, 233 ; FOLGER, J., in Spear v. Mayor, 470, 477. 72 N. Y. 442. » Cincinnati v. Cameron, 33 O. S. 2 Howard v. Johnston, 82 N. Y. 386. 271 ; Puffer v. Lucas, 101 N. C. PART IV. GENERAL RULES OF STATEMENT. 320. Scope and Divisions of This Part. — Having set forth, in Part III., the formal parts of pleading under the Reformed Procedure, and explained their structure, and their adaptation and use as instruments for tlie application of the substantive law to operative facts, we come now, according to the order of treatment proposed, to a consider- ation of the general rules to be observed in the use of the formal pleadings in a cause. The entire law of pleading has been constructed in an effort to place questions for judicial determination properly and clearly before the tribunal that is to investigate and decide them. The use of the formal pleadings as means for the presentation of such questions is governed by a system of rules, drawn from the nature of legal rights and duties and the established laws of argument, and designed to pro- mote the judicial inquiry, by the separation of complex questions into simple points, and by the avoidance of ob- scurity, prolixity, and confusion. These rules are in no degree arbitrary ; they result from a judicious adaptation of the general laws of argument, to the judicial altercation. The ultimate object of an action is, to procure the inter- position of the court, as the depositary of the public force, for the maintenance of a legal right. The formal pleadings, both the regular and the irregular parts, are but means (1) for advising the court that there is occasion for judicial interposition, (2) to disclose and formulate any resulting contention, and (3) to determine the nature and scope of the trial. The first of these purposes involves matter of sub- stance ; the second involves matter of form ; and tlie third relates to the proofs. Following this natural order, the gen^ 20 305 ^ 320 GENERAL RULES OF STATEMENT. 306 eral rules of statement — those guiding principles applicable to pleadings in general — will be grouped and explained under these heads : (1) Rules Relating to Matters of Substance ; (2) Rules Relating to Matters of Form ; and (3) Rules Relat- ing to the Proofs. CHAPTER XXII. RULES RELATING TO MATTERS OF SUBSTANCE. 321. Matter of Substance. — It is essential to every pleading asserting new matter, wliether in tlie statement of a right of action or of a defense, tliat it contain, either by averment or by legal presumption dispensing with averment, every substantive fact requisite in law to the maintenance of the action or the defense. All such facts, essential to the right or the defense asserted, are matters of substance ; and if any such fact be omitted, the claim or defense is defective, and such defect can not be supplied by evidence at the trial. On the other hand, an averment not requisite to the claim or defense in connection with which it is made is always a need- less incumbrance, and may be misleading and vicious ; for which reasons, the law prohibits the insertion of such aver- ments. Following this principle of discrimination, the rules of statement concerning matters of substance relate either to matters that should be stated, or to matters that should be excluded ; the former having regard to the legal sufficiency of pleadings, the latter being designed to restrict the aver- ments to matters legally requisite. I. OF IVIATTERS TO BE STATED. 322. General Requisites of Complaint. — The com- plaint must contain a statement of operative facts which, tinder the substantive law, entitle the plaintiff to judicial interposition in his behalf and against the defendant. In other words, it must, by a statement of operative facts, dis- play a right of action against the defendant, and in favor of the plaintiff. Ordinarily, a statement of investitive facts showing the plaintiff's primary right and the defendant's 307 § 323 GENERAL RULES OF STATEMENT. 308 corresponding duty, and of culpatory facts showing the de- lict of defendant, is all that is requisite to show a right of action ; but when collateral facts are necessary to give effect to the substantive facts, they should be stated also. In addition to a statement of facts, both principal and collateral, showing a right of action, the complaint must show, by alle- gations, unless dispensed with by legal inference, that the court has jurisdiction, and that the parties have legal capacity to sue and to be sued. These general requisites of a complaint are matters of sub- stance, and are essential to the jurisdiction of the court, and the validity of its procedure. They are fully considered in a former chapter,^ and need not be further considered here. It has also been shown that in some cases it is necessary only to state the facts showing the defendant's delict ; that causes for equitable relief may require a fuller statement than those for purely legal relief ; and that matter of inducement and matter of aggravation may be pleaded with less particularity than is requisite in stating that which is the gist of the claim or defense. But there are some essentials of a complaint, requisite only in particular instances, that are yet to be stated and explained. Some of these, it will be found, fall within the general requirements heretofore enumerated, while others are auxiliary tliereto. 323. The Complaint Must Show Title.— It is a rule of pleading under the Reformed Procedure, as it was at com- mon law, that where the plaintiff asserts a demand by virtue of his ownership of property, real or personal, he must allege his title thereto; and if he charges the defendant with a liability in respect of property, he must allege title in his adversary. In other words, the plaintiff must allege such title as will, in law, sustain the right asserted, or the liabil- ity charged. In actions concerning real property, the requirements as to alleging title differ in the different actions. In actions for the recovery of real property, where the pleadings are not controlled by special statutory provisions, the complaint 1 Ante, 177 et seq. 309 MATTERS OF SUBSTANCE. §324 should state the facts that give the i:>laintiff a right of posses- sion ; to wit, that he is the owner in fee, or of some other estate that gives him right of possession. But in most of the states, the pleadings in such actions are regulated by statutes prescribing the requisite averments. That plaintiffs are the " owners in fee, as tenants in common, of tlie prem- ises," has been held sufficient.^ But an allegation that by virtue of a certain conveyance to plaintiff he became the owner of certain premises, is a conclusion of law.^ In trespass quare clausum f regit, the gist of the action be- ing the injury to the possession,^ the complaint must allege plaintiff's possession, actual or constructive, at the time of the trespass. It has been held, however, that where no one holds actual possession, an allegation of legal title in the plaintiff is sufficient in such case, because the legal title draws after it the possession ; * but upon principle, owner- ship can show only a right of possession, and not the fact of possession. It is only in the absence of actual possession, that the title draws to it the possession ; and this is by a mere legal fiction.^ There can not be constructive possession of lands of which third parties are in actual adverse posses- sion.^ 324. Complaint Must Show Title, Continued. — In an action by a lessor against his lessee, or one who is privy to him, founded upon the lease, the complaint need not allege title in the plaintiff. This rule is a consequent of the famil- iar doctrine that a lessee, and his privies, are estopped from disputing the landlord's title. And where the action is be- tween the lessor and the lessee, for breach of any of the conditions of the lease, the rule rests upon the additional ground that the action is upon the contract alone, and does not involve the title. But when the action is brought by the assignee of the reversion, or by the heir of the lessor, or by the executor of a termor, the complaint should state the title of the lessor to the demised premises, so that it may appear that 1 Payne v. Treadwell, 16 Cal. 220. * Ruggles v. Sand, 40 Mich. 559. ■^ Turner v. White, 73 Cal. 299. 6 cf. ante, 101. •^ Ante. 101. « Ruggles V. Sand, 40 Mich. 559. §325 GENERAL RULES OF STATEMENT. 3i0 the lessor had such estate as would legally entitle the plaint- iff to maintain the action in the capacity in which he sues.* The reason for this distinction is, that the tenant, while es- topped to deny his landlord's title, is not estopped to question the derivative title of the plaintiff ; * and the title of the lessor is the source and substance of the plaintiff's derivative title. In this connection it may be stated, that where one claims as heir of another, he must state the facts of exclusive near relationship ; the mere statement that he is such heir is a conclusion of law.^ In the common-law action of ejectment, the declaratiou alleges a demise from the plaintiff's lessor.* This is a literal compliance with the rule under consideration; and, besides, this title is expressly admitted by the real defendant, when substituted for the casual ejector. But the real title of the real plaintiff is not alleged ; and this is because of the ficti- tious character of the action. In an action for partition, the complaint should state the titles and interests of the co-tenants, plaintiff and defendant ; but it is neither necessary nor proper to show any deraign- ment of the plaintiff's title. In an action to remove a cloud and quiet title, it is gener- ally necessary to allege both the legal title and possession in the plaintiff. 325. Complaint Must Show Title, Continued. — In ac- tions concerning personal property, it is sufi&cient to allege simply that " the plaintiff is the owner " of certain goods and chattels, describing them ; ^ or to say that they are the prop- erty "of the plaintiff."^ At common law, ownership of personal property, except in trover, was alleged by following a description of the property with the words, "of the said plaintiff." In trover, the formal allegation was, that the plaintiff " was lawfully possessed, as of his own property, of 1 Max. PI. 89 ; Bliss PI. 228 ; Evans ^ Souter v. Magiiire, 78 CaL 543 ; PI. 3L Phoenix Ins. Co. v. Stark, 120 Ind. 2 Big. on Estop. 536-538. 444 ; Strickland v. Fitzgerald, 7 8 Post, 343. Cash. 532. ♦ Ante, 91. • Pattison v. Adams, 7 Hill, 126. an MATTERS OF bUBSTANCE. 8325 certain goods and chattels," describing them.* The reason for tliis difference iii phraseology was, that in trover the plaintiff must have a property, general or special, in the cliattels ; while in other actions, actual possession, or con- structive possession with a general or special property, was sufficient/'* In actions on choses in action, if the complaint shows title in another, — as where plaintiff sues as the assignee of an account, or of a contract, — an allegation of ownership in the plaintiff is not enough, but the transfer must be alleged ; otherwise, the title and the right of recovery will appear not to be in tlie plaintiff, but in another, and the complaint will be demurrable.^ And in actions on negotiable instruments, where the plaintiff is not an original party to the instrument, the complaint must state the facts showing his derivative title thereto. The averment in such case, depending, of course, upon the negotiable form of the instrument, may be, that the payee indorsed, or assigned, or delivered, the instru- ment to the plaintiff. The statement that the note, " for value received, lawfully came to the possession of the plaint- iff ; " * or that plaintiff is the lawful owner and holder ; ^ or that he is the bona fide owner and holder ; ^ or that it became his property by purchase ; "> has been held sufficient when not objected to by motion to make definite. The question has been raised, whether, when the title to a bill or note revests in one by whom it has before been in- dorsed, he may strike out his own and all subsequent indorse- ments, and plead his original title, without showing a re- transfer to himself. The weight of authority is in favor of his right to do so ; ^ though there is some conflict in the decisions, and, upon principle, it would seem that the right 1 Steph. PL 121 ; Ante, 105. * Lee v. Ainslie, 4 Abb. Pr. 463. 2 Bliss PI. 230 ; Max. PL 88. ^ Reeve v. Fraker, 32 Wis. 243. 8 Sinker v. Floyd, 104 Ind. 291 ; « Holstein v. Rice, 15 How. Pr. 1. Thomas v. Desmond, 12 How. Pr. ^ Prindle v. Caruthers, 15 N. Y. 321; Adams v. HoUey, 12 How. 425. Pr. 326 ; McNeil v. Coramandery, « 2 Dan. Neg. Instr. 1198, and 131 Pa. St. 339 ; s. c. 18 Atl. Rep. cases cited. 899 : Hollis v. Richardson, 79 Mass. §326 GENERAL RULES OF STATEMENT. 312 should depend upon the character of the transfers from and to tJie plaintiff. Where his indorsement was " for collection " only, the right is clear. 326. When Complaint Must Show Privity. — Privity- is a term applied to certain jural relations giving rise to primary rights and duties. When privity is essential to the primary right asserted, the complaint must show its exist- ence ; and failure to show it is a defect of substance. Where the right arises from privity in blood, the facts showing the exclusive near relationship must be stated; if privity in estate is relied upon, the complaint must show that which creates such privity, as, grant, lease, or assignment of lease ; and, generally, where the injury complained of results from a breach of contract merely, the complaint must show privity of contract between the parties. It is a general rule that the assignment of a contract does not create privity between the obligor and the assignee ; but under the new procedure, the assignee of a chose in action may sue thereon in his own name, notwithstanding the want of privity. Where the injury complained of results from reliance on a false and fraudulent representation, made by the defendant to another, with the knowledge and intent that the injured person was to act upon tlie faith of it ; or where the injury is the natural and necessary result of a wrongful act of the defendant, having no direct relation to the person injured, privity is not necessary to the maintenance of an action. In order to adapt certain jural relations to the action of assumpsit, the common law superadded to the real operative facts the fiction of an implied promise to pay. This supplied the element of privity, and brought many cases, otherwise remediless, formally within the operation of assumpsit. This fiction was resorted to for the recovery of money paid, by mistake, to one not entitled to it; or to recover money obtained by fraud or duress ; and where one's property had been tortiously taken and converted into money, he might waive the tort and sue for money had and received, alleging in his declaration a promise by the defendant to pay.^ In 1 See post, 415 et seq., where pri- vity as an element of rights Uncertainty in the mind of the pleader as to what defensive facts may be proved under a denial, and what must be pleaded in order to be proved, has led to the common fault of superadding to the general denial a defense in the form of a defense of new matter, but containing only evidential facts equivalent to a denial, and all of which could be proved under the defense of denial ; and sometimes the defensive evidential facts and the denial are commingled in one defense. Such practice is not only a violation of the plainest principles of pleading ; it leads to the greatest un- certainty and confusion, and is in the highest degree repre- hensible. PART V. APPLICATION OF PRINCIPLES. 387. Scope and Divisions of this Part. — The ultimate end of procedure, speaking comprehensively, is the conser- vation of rights ; its immediate purjjose, speaking discrimin- ately, is the application of substantive law to operative facts. Having set forth and explained the formal pleadings, and the general rules by which they are to be constructed and adapted in the conduct of procedure, it is proposed now to furnish some practical guidance for the application of the general principles of pleading to particular instances of actual or threatened violence to private rights. This is the ultimate object toward which all that precedes has tended, and to which it is designed to be subservient. It is at this decisive juncture — the application of legal principles to the actual affairs of life — that the lawyer meets his greatest difficulty ; and it is by judicious discrimination at this critical point that the careful lawyer lays the foundation for his ultimate triumph. When we come to apply the substantive law to an actual combination of circumstances, through the intervention of a court, at the suit of one party against another, a series of progressive steps are to be taken, and some questions of practical importance and of serious consequence must, at the outset, be considered and determined. These preliminary considerations involve inquiries (1) as to whether there is a right of action, (2) as to what persons should be parties to the action, (3) as to the court that may properly take cogni- zance thereof, and (4) as to the substantive law that must be applied to the facts in the case. 26 401 CHAPTER XXV. DISCOVERING A RIGHT OF ACTION. I. ACTIONS FOUNDED ON RIGHTS AND DELICTS. 388. Composition of Remedial Rights. — An action is a proceeding in a court of justice to procure its interposition to protect a right, or to obtain a remedy for its invasion. Primary rights are either in rem, or in personam ; the former availing against persons generally, the latter availing against some determinate person or persons. A remedial right, or right of action, arises from an infringement, actual or threat- ened, of a primary right, and is always, and necessarily, a right against a determinate person ; to wit, the person who owes the positive duty imposed by a right in personam, or one who has violated, or threatens to violate, the negative duty im- posed by a right in rem. Therefore, to determine whether a person has a right of action, and if so, against whom, we must determine whether a primary right of such person has been violated or threatened by the actionable wrong of some other person or persons. Private rights, from their nature, their variety, and their number, are susceptible of only a very general classification. Culpatory acts that will infringe or impair a private right are even more numerous, more varied, and less capable of predescnption. If all rights, and all possible invasions thereof, could be defined and catalogued, it would not be difficult to determine whether, in a particular instance, an actionable wrong has been done. But the facts and circumstances that give rise to litigation generally come into existence from unexpected conduct or events ; and from a confused mass, the operative facts — investitive, divestitive, and culpatory — are to be gathered and differentiated, and resulting rights 402 403 DISCOVERING KIUIIT UF ACTION. %S89 and liabilities determined. To conduct this discriminating- investigation, this legal diagnosis, and thereby to find out whether there is a right of action, the pleader must be able= to distinguish operative facts from evidential facts, and to determine from tlie operative facts wliether a legal right has been impaired, by an actionable wrong. 389. Damnum and Injuria Distinguished. — It is not uncommon, in the consideration of facts for the purpose of determining whether there is a right of action, to give undue weight to the circumstances of inconvenience and loss. It is these alone that the parti/ contemplates and complains of. But it must here be borne in mind that it is not the purpose of the substantive law to punish wrong-doers ; nor is it the purpose of civil actions to compensate for all inconvenience and loss ; it is their purpose, primarily, to protect legal rights. The proper inquiry at the outset, then, is, whether a right recognized by the law has been invaded, or is threatened. And here it must be premised, that there is a clear distinction between cases new in principle, and those new only in the instance. That a cause of action is novel, and without pre- cedent, furnishes no ground of objection, provided the right asserted, and the wrong complained of, are within recognized principles of the law. A case may not be within the limits of any adjudged case, or of any precise authority, and yet be clearly within recognized legal principles, and hence cogniz- able by the courts.^ The ultimate object of the law is, the conservation of legal rights, and compensation in damages is only a subordinate end, resorted to for the promotion of the law's general pur- pose — the protection of rights. It follows, as a logical se- quence, that a loss, to be remediable by action, must result from the unathorized impairment of a legal right, and that where there is no recognized right, there can be no actionable wrong ; and it follows, as a practical result, that one may sustain loss by the act of another, and yet have no right to compen- 1 Broom's Max. 193 ; Per Peck- downer v. M. & E. R. Co., 42 Hun, HAM, J., in Piper v. Hoard, 107 .444,447. N. Y. 73 ; Per Pratt, J., in Mul- § 300 APPLICATION OF PRINCIPLES. 494 sation by means of an action.^ In other words, to give one a right of action for loss sustained by the act of another, there must be both actual loss, and legal injury. Not only must the loss sustained result from the invasion of a recognized legal right, but the interference therewith, the act or omission complained of, must be wrongful ; for if loss be sustained by reason of an act or omission that is not legally wrongful, the loss is damnum absque injuria, and is not remediable by action. On the other hand, one can not sustain an action against another who has done a wrongful act, unless he has thereby sustained legal damage. Such act would not be legally wrongful, because not legally hurtful. It is clear, therefore, that to give rise to an actionable right and an actionable liability, there mu£t be both legal damage and legal wrong — damnum cum injuria. 390. Damnum absque Injuria — Illustrative Cases. — If, by fair competition, one man interfere with another's business and occasion him loss of trade, the latter has no right of action, because, thougli he has suffered damage, there has been no legal injury. His full legal right to carry on busi- ness is qualified by the equal right of every other person to engage in the same business ; and this qualified rigiit has not been encroached upon. His loss is damnum absque in- juria? If one, while doing what is lawful, and in the exercise of due care, injure another by pure accident, the latter is rem- ediless, because no legal right has been violated. The right of personal security, in its totality, is only to enjoy such per- sonal safety as the exercise of reasonable care by others will afford. If, for example, one's horse should be frightened by some sudden noise, and become unmanageable, and run against a person, or another horse, and do injury, the driver of the frightened horse, if not negligent in the premises, would not be liable in damages.'" 1 Ante, 27. 38 ; Brown v. Kendall, 6 Cush. 292 ; 2 Rogers v. Dutt, 13 Moore P. C. Wakeman v. Robinson, 1 Bing. C. 207, 241. 213. But some of the cases make • Gibbons v. Pepper, 1 Ld. Raym. a distinction between accidents 405 DISCOVERING RIGHT OF ACTION, g 390 Injuries inflicted from necessity are, as a rule, not action- able. If a lighted firework be by accident thrown into a coach full of people, and they throw it out in necessary self- defense, a bystander who is unintentionally struck and in- jured has no right of action against the persons who so threw it against him. The act, being necessary in self-defense, was not wrongful, and invaded no legal right of the bystander.^ So, if a boat be overloaded with merchandise, a passenger maj-, in case of necessity, throw overboard sufficient of the goods to afford safety for himself and fellow passengers.^ And if the highway be impassable, a traveler may, of neces- Gity, pass over the adjoining land.^ If, after a will has been made, devising property, a third person induce the testator, by false and fraudulent rep- resentations, to revoke it, the person named as devisee will have no right of action against such third person, because the revocation merely deprived him ; f an expected gratuity, and did not interfere with any legal rignt,* A creditor has no right of action against one who induces the debtor not to pajs or an officer not to collect a demand placed in his hands for collection.^ And it is said that one who is prevented from attaching property, by the fraudulent representations of the owner, or of his agent, has sustained no legal damage, though another attachment should intervene, and the debt be lost ; ^ aliter^ if the attachment had been levied, and then lost by reason of the deceit. In the one case, only an inten- tion to attach was frustrated ; in the other, an acquired lien was lost. The loss of the debt is too remote. from acts that are involuntary, and * 3 Kent Com. 424. from those done voluntarily. Cf, * Hutchins v. Hutchins, 7 Hill, Nichols V. Marsland, 10 Ex. L. R. 104. Cf Kimball v. Harmon, 34 255 ; Marshall v. Welwood, 9 Md. 407 ; s. c. 6 Am. Rep. 340 ; Vroom, 839; s. c. 20 Am. Rep. Knights Templar, etc., Co. v. 394. Gravett, 49 111. App. 252. 1 Scott V. Shepherd, 2 W. Black. ^ piatt v. Potts, 13 Ired. 455. 892 ; Richer v. Freeman, 50 N. H. « Bradley v. Fuller, 118 Mass. 420 ; s. c. 9 Am. Rep. 267. Cf. 239. Cf. Lamb v. Stone, 11 Pick. Guille V. Swan, 19 Johns. 381 ; 527 ; Wellington v. Small, 3 Gush. S. c. 10 Am. Dec. 234. 145. 2 Mouse's Case, 12 Coke's Rep. 63. § 391 APPLICATION OF PRINCIPLES. 4.QQ In the foregoing, and in like cases, the loss is irreparable by action, because the orbit of the legal right has not been impinged upon.^ 391. Right of Action without Appreciable Loss. — Damage, in legal contemplation, does not always involve pecuniary loss. Every injury to a legal right imports a dam- age, and will sustain an action, though there be no pecuni- ary loss. The reason is, that the primary object of the law, and of procedure, is to maintain legal rights ; and it is tlie wrongful invasion of such right, and not the consequent loss, that makes the occasion for legal interference. The awarding of compensation in damages is only a means to an end, and the awarding of only nominal damages, where no actual loss has been sustained, fully subserves the purpose and end of the law. In some instances, where a legal right has actually been invaded, an action may be maintained before there has been time for actual loss to ensue ; as, where a watercourse has been diverted from the plaintiff's lands, or where the eaves of a house have been projected over his lands.^ An action may be maintained by an elector against an officer who wrongfully refuses to receive his vote, notwithstanding the candidates for whom he wished to vote were in fact elected. In such case there can be no actual pecuniary loss, but the elector's legal right has been infringed, and he has, in legal contemplation, been damnified.^ Every legal injury imports a damage; and where there is both damage and injury, the law gives a remedy by action, unless the infringement of right be so trifling as to fall within the maxim de minimis non curat lex ; a maxim intended to discourage useless and malicious litigation.* An action will lie for trespass upon land, without actual damage j for other- * Ante, 27. the inconsiderableness of the in- 2 Ang. Lim. 300 ; 1 Suth. Dam. jury, rather than to the amount 766 ; Wood Nuis. 97. of damage occasioned. Paul v. 8 Ashby V. White, 2 Ld. Raym. Slason, 22 Vt. 231 ; Williams v. 938 ; Jeffries v, Ankeny, 11 Ohio, Moctyn, 1 M. & W. 14o ; Fullam v. 372. Cf. Blair v. Rigley, 41 Mo. 93. Stcamc, 30 Vt. 443 -, Wood v. Wand, * This maxim has a very limited 3 Exch. 74S ; Sampson v. Hodinott, application, and has reference to 1 Com. B. N. S. 590. 407 DISCOVERING RIGHT OF ACTION. § 392 wise, continued encroachments might ripen into a legal right.^ Aud when there is a clear legal injury, an action will lie, even though the plaintiff be in fact benefited by the act of the defendant complained of.^ Where a telegraph company negligently delays the deliv- ery of a message directing the purchase of a quantity of wheat, to be delivered at a stated time, an action may be maintained, and nominal damages recovered, notwithstanding the fact that the delay saved the sender from loss that he would otherwise have suffered by reason of fluctuation in the price of wheat in the interim.^ Where a banker, having sufficient funds of his depositor, wrongfully refuses to cash the latter's check, he is liable to an action by the depositor, though he sustained no actual loss by reason of the refusal.* It will be seen from the foregoing illustrative cases, that the law, regarding the infringement of a right, rather than the pecuniary consequences of the infringement, will give an action where there is a wrongful violation of a recognized legal right, whether actual loss ensue or not. In other words, where there is a legal right of the plaintiff, and a delict of the defendant, an action may be maintained, and nominal damages at least may be recovered. It must here be observed, however, that there is an exceptional class of cases, to be considered hereafter, in which actual damage is an essential element of the right of action, and in which there is no infringement of a right, unless actual damage result from the act complained of.^ 392. Personal Injuries — Death — Assault. — The right of personal security consists in uninterrupted enjoyment of one's life, person, health, and reputation ; and it imposes upon all others the duty not to destroy or imperil the life. 1 Williams v. Esling, 4 Barr, 486 ; « Hibbard v. W. U. Tel, Co., 33 S. C. 45 Am. Dec. 710. Wis. 558. 2 Francis v. Schoellkopf, 53 N. * Marzetti v. Williams, 1 B. & Ad. Y. 153. Cf. Stowell v. Lincoln, 11 415 ; Rolin v. Steward, 14 C. B. Gray, 434 ; Munroe v. Stickney, 48 595. Cf. Cumming v. Shand, 5 H. Me. 462 ; Monroe v. Gates, 48 Me. & N. 95. 463 ; Champion v. Vincent, 20 Tex. « Post, 426. 811. §392 APPLICATION OF PRINCIPLES. 40S not to injure or annoy the person, not to injure or endanger the health, and not to defame the reputation. Strange as it may appear, the common law gave no action for an injury resulting in death. Lord Ellenborough once said, that " the death of a human being can not be complained of as an injury." ^ The reason for this denial of an action was, that by the death, the matter became a public offense, and the private injury was thereby drowned and lost.^ But in England, and in most of the states, it is provided by statute, that an action may be maintained by the executor or admin- istrator of the deceased, for the benefit of the widow and next of kin, or for the benefit of the estate of the dece- dent, where the circumstances of the injury are such that, if death had not ensued, the person injured could have maintained an action for damages in respect thereof. These statutes have no extra-territorial operation; and where an action is brought in one state for an injuiy done in another state, or in a foreign country, it must be alleged and proved that the law of such state or country is the same in this regard as the law of the forum. ^ And any defense that would have been available in an action brought by the injured person, — such as his contributory negligence, or that the injury resulted from the negligence of a fellow- servant, or of an independent contractor, — is equally avail- able in an action brought by his personal representative. Not every inconvenience or injury to the person is an invasion of the right of personal security. An assault, or a battery, if by an accountable person, and without excuse or justification, invades such right, and may be redressed by action. Personal violence used in justifiable defense of one's 1 Cooley on Torts, 14, 15 ; Baker 2 Higgins v. Butcher, Yelv. 89 ; V. Bolton, 1 Camp. 493 ; Carry v. Shields v. Yonge, 15 Ga. 349. Con- Company, 1 Cush. 475. Per Cole, tra, Hyatt v. Adams, 16 Mich. 180. J. , in Shearman v. West. Stage Co., 8 Whitford v. Company, 23 N. Y. 24 Iowa, 515, 543. Cf. Green v. 465 ; Maher v. Norwich Co., 45 Hudson R. Ry. Co., 2 Keyes, 294 ; Barb. 226 ; Selraa Co. v. Lacy, 43 Hyatt V. Adams, 16 Mich. 180 ; Ga. 461 ; Nashville Co. v. Elkin, 6 Eden v. L. & F. Ry. Co., 14 B. Cold. 582 ; Shedd v. Moran, 10 DL Mon. 165. App. 618. 409 DISCOVERING RIGHT OF ACTION. § 393 person, property, relative or friend, if not excessive, is not actionable.^ Parents, and persons in loco parentis, may lawfully use reasonable and moderate violence as a means of correction.^ 393. Liability for Injuries to Health. — The law very properly, and necessarily, makes a wide distinction between injury to health, and mere personal discomfort. It is appar- ent that many personal discomforts and inconveniences must be borne b}^ those living in densely populated districts ; and the modes of life, and the tastes and sensibilities of individ- uals, differ so much, that the law must adopt some standard by which to determine when there is such interference with health and comfort as to invade the right of personal secur- ity, and confer a right of action. The law has accordingly adopted, as the standard or measure of the primary right, that degree of comfort and convenience ordinarily enjoyed by persons of ordinary tastes and susceptibilities. What inconvenience or annoyance will materially interfere with the ordinary comforts of human existence, depends much upon the place where, and the circumstances under which, the thing complained of occurs. One who lives in a town or city voluntarily subjects himself to the annoyance, and to the detriment to health, necessarily resulting from the busi- ness properly carried on in his locality. He may not expect the air to be as fresh and pure as if no business were carried on in his vicinity, and he may not complain of noises and noxious gases, so long as they do not interfere with the ordinary comforts of life in such towns. Where plaintiff sought to enjoin the owners of a horse railroad from running their cars on Sunday, on the ground that they were thereby deprived of the enjoyment of the day as a time for rest and religious exercise, relief was refused, on the ground that religious meditation and devotional exercises resulted from sentiments that were not universal, but peculiar to individuals, and that the disturbance com- 1 Leward v. Basely, 1 Ld. Raym. & F. 656 ; Cooper v, McJunkin, 62 ; HiU v. Rogers, 2 Clarke, 67. 4 Ind. 290. Cf. Winterburn v. » Fitzgerald v. Northcote, 4 Fost. Brooks, 2 Car. & K. 16. §394 APPLICATION OF PRINCIPLES. 410 plained of was not a privation of ordinary comforts. The court said : " Noises which disturb sleep, noxious gases, sick- ening smells, corrupted waters, and the like, usually affect the mass of the community in one and the same way, . . . and can be judged of by their probable effect on health and comfort, and in this way damages may be perceived and estimated. Not ^o of that which only affects thought or meditation." ^ Where one church member sued a brother member for disturbing him during services by making loud noises in singing, reading, and talking, the court said : " The alleged injury is not the ground of an action. There is no damage to the plaintiff's property, health, reputation, or per- son. He is disturbed by noises, in listening to a sermon. Could an action be maintained by every person whose mind or feelings were disturbed in listening to a discourse, by the noises of others, the field of litigation would be extended beyond endurance. The injury, moreover, is not of a tem- poral nature ; it is altogether of a spiritual character, for which no action at law lies." ^ 394. Injuries to Reputation — Libel and Slander. — The law regards one's good reputation as a thing of value, and for the wrongful defamation thereof, an action for damages may be maintained. But not all injuries to reputation are remedi- able by action. In a large class of cases, where the words spoken or written are not actionable per se, if the party can not allege and prove some special damage, he is without remedy, however much his reputation may have suffered. There may be injury to one's feelings, and indirectly to his reputation, but injury that can not be estimated in dollars and cents. In such cases, the loss is damnum absque injuria. It is reputation, and not character,^ to which the law 1 Sparhawk V. Ry. Co. , 54 Pa. St. value of plaintiflTs property, and 401, 438. rendered it unfit for a place of * Owen V. Henman, 1 Watts & S. worship. 548; State v. Linkhan, 69 N. C. ^ ^ man's character is made up of 214. Cf. Bap. Ch. v. S. & T. Ry. his real qualities, and depends upon Co., 6 Barb. 79, where the defend- what he really is ; his reputation ant was held liable for making such is the general estimate of his char- noises as greatly depreciated the acter, and depends upon wliat 411 DISCOVERING RIGHT OF ACTION. § 395 attaches value in such cases, and which it undertakes to pro- tect. Hence, defamatory words, to be actionable, must affect his reputation ; and to do this, they must be communicated to other persons, and must be understood by them. There- fore, defamatory words uttered in the presence and hearing of only the person speaking and the person spoken of, can not affect reputation, and are not actionable, because there has been no publication of the words, and the person's legal right — that which the law recognizes and protects — has not been invaded.^ For the same reason, defamatory words spoken in the presence and hearing of others, but in a foreign language, and not understood by any who heard them, are not action- able. ^ Defamatory words, to be actionable, must be false, and must be alleged to be false. The truth of the charge com- plained of is a good defense.^ This is said to be on the theory that a person has no legal right to a false reputation.^ 395. Requisites Preliminary to Remedial Right. — It has heretofore been shown that where the right of a plaintiff* depends upon his performance of a condition precedent, a remedial right does not accrue until he performs, or tenders performance, of such condition ; and that in his complaint in such case, the plaintiff must allege performance, or tender of performance, or he must state facts that relieved him from performance.^ The performance of a condition precedent, or a legal equivalent to performance, is a prerequisite to the accruing of the remedial right. So, demand, or notice, may be a prerequisite to the exist* others think of him. So, one may Per Strong, J., in TerwilHger v. have a good reputation, and a bad Wands, 17 N. Y. 54, 63. character ; or he may have a good '^ Biqelow, J., in Sheifill v. Van character, and a bad reputation. Densen, ISGray, 304. C/. Wheeler Calumny may injure his reputa- & Appleton's Case, Godb. 340 ; tion, but not his character. Desmond v. Brown, 33 Iowa, 13. 1 SheffiU v. Van Densen, 13 Gray, ^ Foss v. Hildreth, 10 Allen, 76; 304 ; Broderick v. James, 3 Daly, King v. Root, 4 Wend. 113. Cf. 481 ; Phillips v. Jansen, 2 Esp. 624 ; Van Aukin v. Westfall, 14 Johns. Lyle V. Clason, 1 Caines, 581 ; Force 233. V. Warren, 15 Com. B. N. S. 808 ; * Big. on Torts, 50. 6 Ante, 329. §395 APPLICATION OF PRINCIPLES. 412 ence of a right of action. One may have a right to money or property in the hands of another, and yet not be entitled to sue for it. The reason is, that his right is only a primary right; that no delict could be affirmed of him who is in pos- session. It is a general rule, subject to but few exceptions, that where one is lawfully in possession of the money or pro- perty of another, he is not liable to action unless there has been demand, and refusal to deliver.^ Where a sheriff has money in his hands, collected on execution, he is not liable to an action therefor by the execution creditor, until after demand and refusal to pay over.^ The money belongs to the creditor, and he has a right to receive it from the sheriff. But this is a primary right only, and it is not invaded by the sheriff, until, upon demand, he refuses to pay over. The sheriff received the money lawfully, and may rightfully re- tain it until called for ; and until demand and refusal to pay, there is no delict of the sheriff, to complete the remedial right of the creditor. Upon principle, the finder of lost property, having it in his custody, is not liable to an action by the owner to recover the property or its value, until after demand thereof and refusal to deliver.^ The owner of lost property has not lost his title thereto, though he has parted with the possession. But the finder who takes the property into his custody infringes no right of the owner ; no culpatory fact could be affirmed of him, and hence no right of action against him could be stated. 1 A like rule applies, and for like liver, and a conversion ; in detinue, reason, as to the running of interest demand and refusal were alleged ; on the money of another that is and in replevin, at common law, received by mistake. 1 Suth. on the taking was the culpatory fact. Dam. 621 ; 3 Par. on Contr. 102 ; In Shaffer v. McKee, 19 O. S. 526, 2d St. Passenger Ry. Co. v. City of to recover money honestly received Philadelphia, 51 Pa. St. 465. Cf. by defendant on plaintiff's draft, Sibley v. Pine Co., 31 Minn. 201 ; there was demand and refusal be- Boston & Sandwich Glass Co. v. fore action brought. Cf. Severin City of Boston, 4 Met. 181 ; Dodge v. Keppel, 4 Esp. 156 ; Big. on V. Perkins, 9 Pick. 368. Torts, 201 ; 2 Kent Com. 356 ; 2 2 State V. Newman's Exr., 2 O. S. Wait Ac. & Def . 235 ; Smith's Right 567 ; Keithler v. Foster. 22 O. S. 27. & Law, 192. In some of the states, ' In trover, the declaration al- the rights of the finder of lost prop- leged a demand, a refusal to de- erty are regulated by statute. 413 DISCOVERING RIGHT OF ACTION. § 396 But if, upon demand by the owner, the finder, having no right to retain the property on any ground, refuses to deliver it, a right of action accrues. The primary right of the owner, and this delict of the finder, give rise to a remedial right.^ Of course demand can be necessary only where the adverse possession is lawful. A thief may be sued without demand, for the asportation is a culpatory fact. And actual conver- sion by one lawfully in possession of another's property would dispense with demand, for the tort would itself terminate the right. Demand will be presumed after the lapse of the time limited for bringing an action, and the statute of limitations will then begin to run.^ 396. Considerations of Public Policy. — At the very base of law and its administration lies the principle embodied in the maxim salus populi suprema lex — the welfare of the people is the highest law. One may not lawfully do, or obligate himself to do, that which tends against the public good ; and the courts will not uphold a transaction when it will tend to the prejudice of the general welfare. Indeed, it is the first duty of the courts to look to the welfare of the people, and not to enforce any engagement when it would be inimical thereto. And it matters not that the particular transaction is free from corrupt motive, or that in fact no public detriment will follow in the particular instance ; the law looks only to the general tendency of such transactions.^ In determining whether a given state of facts confers a right of action, or will furnish a defense, the inquiry whether the transaction involved is consistent with, or repugnant to, public policy, should never be overlooked. Among the contracts that will not be enforced, because against public policy, are the following : Contracts affecting the administration of justice, the public service, personal 1 Tlie finder of a lost chattel is « Keithler v. Foster, 22 O. S. 27 ; entitled to indemnity for his neces- Ang. on Lim. 96. sary and reasonable expenses in- ^ Holladay v. Patterson, 5 Oreg. curred on account thereof, but it 177, 180 ; Richardson v. Crandall, seems that he has no lien on the 48 N. Y. 348, 362. chattel therefor. 2 Kent Com. 356 ; 2 Wait Ac. & Def . 234. §397 APPLICATION OF PRINCIPLES. 414 liberty, the domestic relations, or commercial freedom ; <;ontracts impairing legal rights, or promotive of crime, im- morality, dishonesty, gambling, and prostitution .^ 397. Actions to Declare a Right, or to Prevent an In- Jury. — in actions for legal relief, the remedial right is dis- played by a brief and simple statement of facts showing the primary right of plaintiff, and the defendant's wrongful in- vasion thereof ; and the operative facts to be considered in determining whether in a given case, there is a right to legal relief, are comparatively few. But in actions for equitable relief, not only the operative facts, but the rights and delicts as well, are sometimes very numerous and complex. In determining the primary rights and duties of parties in equity, there must very often be an adjustment of opposing claims ; and the decree to be obtained in equity may be as complex and involved as are the rights and delicts of the parties, awarding partial relief to different parties, providing for future contingencies, or restraining threatened wrongful acts, and sometimes only ascertaining and declaring the pri- mary rights of the parties litigant. The English courts, not infrequently, it is said, entertain actions simply to ascertain and declare the primary rights of parties, where neither compensatory nor preventive relief is sought ; the policy of the law being to allow parties to a controversy to have a question of right thus predetermined, so that they may govern themselves accordingly.^ But American courts, with rare exceptions, decline to entertain such actions. Where a legacy to a college was payable in two years, provided the college performed certain conditions within one year, the parties, in an agreed case brought within the year, asked the court to determine whether certain admitted facts amounted to a performance of the conditions, and if not, what further acts were required. The action was dismissed, on the ground that the case disclosed no controversy between the parties, and that the question whether the conditions * For a full and exhaustive treat- Hughes' Technology of Law, 176- ment of this subject, see Greenhood 183. on PubHc Policy, passim ; also, 2 23 Abb. N. C. 447, note. 415 DISCOVERING RIGHT OF ACTION. § 398 had been performed could not be the subject of judicial con- troversy, until the two years had expired.^ It has been held, that after loss under a fire insurance, a pledgee of the policy may maintain an action in equity against the insurance company and the insured, to restrain the company from paying the insured, and to establish tlie right of the plaintiff to recover whatever may be payable under the policy, leaving the liability of the company to be determined in a subsequent action at law. This was on tlie equitable ground that the circumstances of the pledgor were such that the payment to him would imperil the plaintiff's rights 2 An action in equity will lie to ascertain and fix the boundaries between adjacent parcels of land when they have become confused or obscure, and when there is some peculiar equity attaching to the controversy, even though neither party is at fault, and no delict can be averred.^ 398. Actions to Declare a Right, or to Prevent an In- jury, Continued. — A surety who apprehends loss from the delay of the creditor to enforce payment by the principal, may, by a bill quia timet, compel the debtor to discharge the obliga- tion ; or he may, in like manner, compel the creditor to enforce payment by the debtor, and thus protect himself from prospective injury.* And actions may be maintained in equity to quiet title, to direct a trustee, and to enjoin a threatened injury. So that it can not be said that the actual invasion of a right is always a prerequisite to the mainten- ance of an action ; on the contrary, an action will sometimes be entertained simply to guard against probable or prospect- ive injury, and to preserve existing rights from imminent or contingent violations.^ The principle upon which such actions are entertained is, that one whose rights are threatened or questioned ought to be allowed to have the menace to his 1 Hobart College v. Fitzhugh, 27 3 Pom. Eq. Jur. 1384 ; 1 Sto. Eq. N. Y. 130 ; s. c. 23 Abb. N. C. 448, Jur. 621. in nota. * 1 "Wait Ac. & Def. 656, ami 2 Mahr v. Bartlett, 53 Hun, 388 ; cases cited ; 3 Pom. Eq. Jur. 141 7 ; S. c. 23 Abb. N. C. 436. Brandt on Suretyship, 223. 8 Boyd V. Dowie, 65 Barb. 237 ; » Bisph. Prin. of Eq. 568 ; Pom. Wolf V. Scarborough, 2 O. S. 361 j Rem. 522. §399 APPLICATION OF PRINCIPLES. 4ig rights dispelled at once, rather than be compelled to suffer them to hang over him until actual loss should result. In no other way can such rights be fully protected.^ It may here be added, that when one party to a contract has renounced it, the other may at once maintain an action thereon, although the time fixed for performance has not passed.2 For example, if a date is fixed for the performance of a marriage contract, and before that date one of the parties refuses to perform the contract at any time, the other may at once sue for the breach of the promise,^ And if one of the parties marry another, and so put it out of his or her power to fulfill the contract, a right of action at once accrues ; and no request to marry need be made or alleged.^ n. THE SUBSTANTIVE LAW THAT IS APPLICABLE. 399. The Laws that may GrOYern in Particular Cases, — Facts are made operative by law ; and to determine whether certain operative facts confer a right of action, they must be •considered with reference to the substantive law that is prop- erly to be applied to them. Generally, the law of the state having jurisdiction to make the application — the lex fori — is to be applied; but as rights may subsist outside of the state or country whose laws originally gave them validity, and as courts will generally enforce such rights, it follows that effect will sometimes be given to a law other than that of the forum. And in cases governed by the lex fori, the question may arise whether, when there has been a change in the law, the opera- tion of the facts, as well as the conduct of the procedure, is to be governed by the new law, or by the old. The inhabitants of a municipal corporation are subject to 1 Ante, 1. 3 Burtis v. Thompson, 42 N. Y. 2 Bayne v. Morris, 1 Wall. 97 ; 246 ; s. c. 1 Am. Rep. 516 ; Hollo- McCormick v. Basal, 46 Iowa, 235 ; way v. Griffith, 32 Iowa, 409 ; s. c. Hochster v. De La Tour, 2 E. & B. 7 Am. Rep. 208 ; Frost v. Knight, 678 ; D. & B. S. Ry. Co. v. Xenos, L. R. 7 Ex. 111. 13 C. B. (N. S.) 825 ; Lovelock v. * Short v. Stone, 8 Q. B. 358 : Franklyn, 8 Q. B. 371 ; Short v. Lovelock v. Franklyn, 8 Q. B. 371 ; Stone, 8 Q. B. 358. Cf. Maud v. Clements v. Moore, 11 A\n. "'■> ; Maud, 33 O. S. 147, 149. King v.r Kesey, 2 Ind. 4C2. 417 DISCOVERING RIGHT OF ACTION. 1400 the ordinances of the municipality, to the statutes of the state, and to the laws enacted by congress ; and in the con- sideration of the affairs of citizens of the municipality, it may be necessary to determine by which set of enactments the rights of the individual are to be determined in the particular instance. The law by which the rights and obligations of parties are to be determined, when other than that of the forum, may be that of the country or state in which one or the other is domiciled — the lex domicilii, or in which the thing in question is situated — the lex loci rei sitce, or in which a particular contract was made — the lex loci contractus, or in which a con- tract was so be performed — the lex loci solutionis.^ 400. The Lex Domicilii. — A man's domicile is where he has his fixed and permanent home, to which, when absent, he has the intention of returning. It differs from residence, which may be transient in its nature. A residence becomes 1 The substantive law enters into, and is an element of, vested rights, and a change thereof does not im- pair such right ; but the right to a particular remedy, not being a vested right, may, as a rule, be affected or lost by a change of the law of procedure. A vested right of action rests upon the substan- tive law, and may not be arbitrarily interfered with by a change of the law. Cooley's Const. Lim. 358*- 362*. But a law changing procedure applies thereafter as well to actions pending when the statute was passed, as to those subsequently commenced, unless the former are specially excepted. Lazarus v. Ry. Co., 145 N. Y. 581. "The court can not, under guise of an amend- ment or repeal of a statute, cut off any substantial right of a party to have his case decided on the merits according to the law of the land. But it would be a very inconvenient rule, tending to great confusion, if 27 a rule of practice existing when an action is commenced attached it- self to the substance of the right in litigation so that it could not be changed, or that a law changing procedure should be held inappli- cable to subsequent proceedings in pending actions unless in terms made applicable thereto. It is the right of a party to have his case heard and decided in the orderly course of legal procedure, but he has no right to demand that the procedure prescribed when the ac- tion was commenced should remain unchanged. He prosecutes his ac- tion subject to the power of the legislature, in matters of practice, to abrogate rules existing when his action was brought, or to make ad- ditional rules." Per Andrews, C. J. ,in Lazarus v. Ry.Co. , supra. Cf. State ex rel. v. Helmes, 136 Ind. 122. See, also, 4 Thomp. on Corp. 5437, and cases cited. g400 APPLICATION OF PRINCIPLES. 413 a domicile when it is taken up animo manendi. Two things must concur, to make domicile ; the fact of residence, and the intention to make it the home of tlie person. One who goes abroad animo revertendi does not change his domicile ; the fact of residence is changed, but not the intent that distin- guishes domicile. A man may have more than one residence — lie may reside a part of the time in the city, and a part of the time in the country; but he can have only one domicile.^ The capacity to make testamentary disposition of personal property, as well as the formalities to be observed in the making thereof,^ is governed by the law of the testator's domicile, not at the time of making the will, but at the time of his death.'^ And the personal property of an intestate will pass according to the law of his domicile at the time of his death, regardless of the actual situs of the property.* Ujjon domicile depend many civil and political rights and obliga- tions ; such as, the right of suffrage, the right to relief under the poor laws, the obligation to pay taxes, and to perform military service. Domicile is an essential jurisdictional fact in actions for divorce. Each state has the right to determine the status — the social and domestic condition — of persons domiciled with- in its ter^itor3^^ " The law of the place of the actual bona fide domicile of the parties gives jurisdiction to the proper courts to decree a divorce for any cause allowed by the local law, without reference to the law of the place of the marriage, or the place where the offense for which the divorce was 1 See, as to domicile generally, 1 ^ Sto. Confl. Laws, 473 ; Nat v. Par. on Contr. 578-582 ; Sto. Confl. Coons, 10 Mo. 543 ; Moultrie v. Laws, 41, 44 ; 2 Wait Ac. & Def. Hunt, 23 N. Y. 394 ; Dupuy v. 626-648 ; 5 Am. & Eng. Encyc. 857. Wurtz, 53 N. Y. 556 ; Damwert v. 2 Carey's Appeal, 75 Pa. St. 201 ; Osborn, 141 N. Y. 564. Dupuy V. Wurtz, 53 N. Y. 556 ; * Sto. Confl. Laws, 481 ; Vroom Moultrie v. Hunt, 23 N. Y. 394 ; v. Van Home, 10 Paige, 549 ; Leach Grattan v. Appleton, 3 Story, 755 ; v. Pillsbury, 15 N. H. 137 ; Parsons Perin v. McMichen, 15 La. Ann. v. Lyman, 20 N. Y. 103. 154 ; Rue High's Appeal, 2 Doug. ^ Strader v. Graham, 10 How. 82; 515. Cf. Holmes v. Remson, 4 Cheever v. Wilson, 9 Wall. 108; Johns. Cli. 460, 469 ; Harrison v. Boynton, C. J., in Van Fossen v. Nixon, 9 Pet. 483, 505. State, 37 O. S. 317. 419 DISCOVERING RIGHT OF ACTION. § 401 allowed was committed." ^ It follows, that the courts of a state or country have not jurisdiction to grant a divorce for any cause, if neither party has an actual bona fide domicile within its territory .^ It is not necessary that both parties be domiciled within the state ; it is sufficient if either be so domiciled.^ But where neither party is domiciled within the state whose court decrees a divorce, the decree is, beyond the limits of such state, a nullit3\* 401. The Lex Loci Rei Sitae. — In the conveyance of real estate, the formal requirements of the law of the place where the land is situated must be observed, in the absence of a statute to the contrary. Where a married woman, between eighteen and twenty-one years of age, domiciled in a state where the age of majority is fixed at twenty-one years, there joins with her husband in the execution of a mortgage on lands in a state where the age of majority is eighteen years, the mortgage is valid ; her capacity to execute it being gov- erned by the law of the situs^ and not by the law of her dom- icile.^ So, a mortgage executed by a married woman as surety, was held invalid, because prohibited by the law of the situs^ though authorized by the law of her domicile.^ Where a mortgage is given in one state, to secure a loan payable in another state, a question may arise as to wdiich law is applicable. The test in such case seems to be, that if the mortgage is a mere collateral security, the money being employed in another state, and under other laws, the law of such state applies ; '' but if the money is employed on the 1 Sto. Confl. Laws, 230 a ; Har- 180. Cf. Beard v. Beard, 21 Ind. rison v. Harrison, 19 Ala. 499 ; 321. Harding v. Alden, 9 Me. 140 ; * Van Fossen v. State, 87 O. S. People V. Dawell, 25 Mich. 247 . 317 ; Sewell v. Sevvell, 122 Mass. Maguire v. Maguire, 7 Dana, 181 ;; 156 ; Hoffman v. Hoflfman, 46 N. C'heever v. Wilson, 9 Wall. 108. Y. 30 ; Hood v. State, 56 Ind. 263 ; 2 Shannon v. Shannon, 4 Allen, People v. Dowell, 25 Mich. 247 ; 134 ; Leith v. Leith, 39 N. H. 20 ; Litovvich v. Litowich, 19 Kan. 451. House V. House, 25 Ga. 473 ; Peo- ^ Sell v. Miller, 11 O. S. 331. pie V. Dawell, 25 Mich. 247; Hard- « Swank v. Hufnagle, 111 Ind. ing V. Alden, 9 Me. 140 ; Pawling 453. Cf. Hill v. Pine River Bk., 45 V. Bird, 13 Johns. 192. N. H. 300. 8 Wright V. W^right, 24 Mich. ^ De W^olf v. Johnson, 10 Wheat. §402 APPLICATION OF PRINCIPLES. 420 land mortgaged, then the law of the situs will obtain.^ A mortgage on land, securing a note for borrowed money, dated in the state where the land was situated, but made payable in another state, was held to be a mere incident of tlie loan ; and the transaction being usurious by the law of the latter state, the mortgage was held void.^ In another case, the court refused to enforce a mortgage given to secure a con- tract in another state, because the contract was opposed to the policy of the laws of the state where the land was situ- ated.^ 402. The Lex Loci Contractus. — In the absence of clearly expressed intention to the contrary, the general rule is, that contracts are to be governed as to their nature, their validity, and their interpretation, by the law of the place where made.* But what is to be deemed the place of a con- tract is sometimes a question of the greatest difficulty. A contract is made when the parties thereto have agreed ; but one may express his assent in New York, and the other in New Orleans. And a contract may be made in one place, to be performed in another ; and it may be the subject of an action in still another place. There has been much discussion as to whether the marriagfe contract should be governed by the lex domicilii, or by the lex loci contractus ; but the prevailing doctrine is, that, unless controlled by local statute, a marriage valid by the law of the place where it is celebrated is valid everywhere. And this is so, though a marriage of the parties would be invalid if entered into in the place of their domicile, and though con- tracted in express evasion of the law of their domicile.^ 383 ; Newman v. Kerson, 10 Wis. Cf. Cope v. Alden, 53 Barb. 350 ; 333 ; Kennedy v. Knight, 21 Wis. Chase v. Dow, 47 N. H. 405. 340 ; Atwater v. Walker, ICE. ^ Flag v. Baldwin, 11 Stew. 219. Green, 42. * Liverpool, etc.. Steam Co. v. 1 Wharton Confl. Laws, 510 ; Phenix Ins. Co., 129 U. S. 397, 453; Arnold v. Potter, 22 Iowa, 194 ; Ang. on Lim. 64 ; 1 Dan. Neg. Chapman v. Robinson, 6 Paige, Instr. 867. 627 ; Goddard v. Sawyer, 9 Allen, ^ Bish. on Mar. & Div. 355 ; 2 78 ; Pine v. Smith, 11 Gray, 38. Par. on Contr. 593 ; 2 Wait Ac. & a Sands v. Smith, 1 Neb. 108. Def . 644. 421 DISCOVERING RIGHT OF ACTION. §403 It may be said to be a general rule that a contract valid under the law of the place where made, is valid everj' where ; and, e converso, a contract that is illegal and void where made, is void everywhere. This recognition of the laws of another state or country is a mere matter of courtesy and pol- icy. Such laws have no extraterritorial force, proprio vigore ; and their recognition in particular cases, as the lex loci con- tractus, being a matter of comity only, will not be extended to contracts that would violate sound morals, or the law of God, or the general policy of the state or country where tliey are sought to be enforced. If a promissory note be made in one state, and payable in another, and the legal rate of inter- est is different in the two states, it seems that either rate may be contracted for.^ But if no interest be expressed, the question whether it shall bear interest, and if so, at what rate, is to be determined by the law of the place where pay- able. ^ Where a servant is injured by negligence, within the state where the contract of employment wac made, and where all the services were to be performed, and sues his employer in another state, the laws of the former state will control as to whether tlie circumstances give a right of action. ^ And where a passenger is being carried on a railroad gratuitously, under a contract whereby he assumed all risk of injury from negligence, and is injured within the state where the contract was made, and by the laws of which it is valid, such contract will be enforced, and will prevent his recovery, in an action brought in another state, even though by the law of the forum such contract would be void.^ 403. The Lex Loci Solutionis. — When a contract is en- tered into in one place, to be performed in another, the law of the former place governs, generally, as to the nature and validity of the engagement, but the law of the latter place 12 Par. on Contr. 583, 584, and 14 Vt. 33. C/. Kopelke v. Kopelke, cases cited. 112 Ind. 435. Campbell v. Nichols, 33 N. J. 81 ; s Alexander v. Pa. Ry. Co., 48 O. Austin V. Imus, 23 Vt. 286 ; Chase S. 62.3. V. Dow, 47 N. H. 405; Hunt v. * Knowlton v. Erie Ry . Co. , 19 O. Hall, 37 Ala. 702 ; Peck v. Mayo, S. 260. §404 APPLICATION OF PRINCIPLES. 422 governs as to the performance. This is because, when the parties to a contract designate a particular place for perform- ance, it is fair to assume that the executory parts of the con- tract were made with reference to the law of such place.^ Whether days of grace are allowable on a negotiable instru- ment is determined by the lex loci solutionis ; ^ and the for- malities of presentment, protest, and notice are governed by the same law.^ And, as we have seen, the rate of interest recoverable where no rate is specified, is controlled by the same law. 404. The Lex Fori Governs the Remedy. — The reme- dies for breach of contract must be pursued according to the law of the place where action is brought. The courts are open to both citizens and strangers, for the enforcement of rights arising under both domestic and foreign contracts, but the procedure must follow the local law and practice. It has heretofore been shown that the time within which an action must be brought, to avoid the defense of the stat- ute of limitations, is governed by the lex fori, except in those jurisdictions where, by special statutory provision, the earlier bar of the statute where the right of action arose may be pleaded ; * and even then it is only by favor of the lex fori that the foreign law may be asserted. The question as to who may sue and be sued, the form of action to be employed, the defenses that may be asserted, the competency of witnesses and of evidence, the kind of judg- ment, and the manner of enforcing it, are all to be governed by the law of the forum, except so far as under the law some of these may be, and in fact are, controlled by the terms of the contract itself.^ 1 1 Dan. Neg. Insti-. 879-881, and * Ante, 338. cases cited. ^i Dan. Neg. Instr. 882-892; 2 2 Cribb V. Adams, 13 Gray, 597 ; Par. on Contr. 588-592 ; Ang. op Bowen V. Newell, 13 N. Y. 290. Lim. 65. C/., as to Statute of 8 Pierce v. Indseth, 106 U. S. Frauds, ante, 335, note. 546 ; Todd v. Neal, 49 Ala. 266 ; Wooley V. Lyon, 117 111. 244. 423 DISCOVERING RIGHT OF ACTION. §^405-406 HI. PROXIMATE AND REMOTE CAUSES OF INJURY. 405. The Law Regards only the Proximate Cause. — The statement of a right of action must not only show that the defendant has committed a legal wrong, and that the plaintiff has sustained a legal injury; it must appear also that the wrong complained of is the proximate cause of the injury sought to be redressed. ^ The injuria and the damnum must stand in the immediate relation of cause and effect ; there must be a natural or necessary con- nection between them ; and this, whether the injury arise from non-feasance, from mis-feasance, or from mal-feasance. If A. break his contract with B., or do other legal wrong to B., the result may be more hurtful to C than to B. But C. can not, in general, maintain an action against A. ; because, in the one case, he was not privy to the contract, and in the other case, although he suffered the damnum, it was B. who suffered the injuria. The delict of A. would be the remote cause of C.'s damage. The doctrine of causation, considered both metaphysically and practically, is of the prof oundest difficulty. Every cause may be said to lead to an infinite sequence of effects. Scarcely an event can occur that is insulated and independent. Metaphysically considered, every event is the effect of some cause, or combination of causes, and in its turn becomes the cause of ensuing consequences, more or less immediate or remote. But it is evident that the author of the initial cause can not be made civilly responsible for all the effects in the series. The law, therefore, having regard to the rights and duties of all persons, in the ordinary affairs of actual life, has adopted the practical rule, of regarding only the proximate cause of the event that is the subject of inquiry. In jure, causa proxlma, non remota, spectatur. But, as will appear, there are some apparent modifications of this rule. 406. Proximate Causes — Breach of Contract. — The general rule is, that for injury resulting from breach of con- » Dawe V. Morris, 149 Mass. 188, Bradley v. Fuller, 118 Mass. 339 ; 191 ; Lamb v. Stone, 11 Pick. 527 ; Scott v. Shepherd, 2 W. Black. 892. §406 APPLICATION OF PRINCIPLES. 424 tract merely, no action, whether ex contractu or ex delicto^ can be maintained, except by those who are parties or privies to the contract. Thus, if A. sell B. a horse, knowing it is to be used in a livery, and to be let for hire, and warrant it to be kind and safe, when in fact it is vicious and unmanage- able, he would not be liable, on his warranty, to one who hired the horse from B., and who sustained injuries resulting from the viciousness of the horse. So, if a smith shoe a horse defectively, in consequence of which the horse falls and injures one who is riding it, and who had procured it from the owner for that purpose, the smith is not liable to the person injured.^ And where the Postmaster General made a contract with A. to provide a coach to carry the mail along a certain route, and B., under contract with A., fur- nished horses to draw the coach, and employed C. to drive them, and the coach, by reason of its defective construction, broke down and injured C, it was held that he had no right of action against A., because there was no privity of con- tract between them.^ Where a railway company furnished a crane for the use of its customers in unloading freight, which they were bound to unload at their own expense, and a person called in tem- porarily to assist a consignee in unloading freight, was killed, in consequence of a defect in the crane known to the com- pany, it was held that his personal representatives had no right of action against the company, whatever may have been its obligation to the consignee himself.^ And where a rail- way company contracted with the owner of a quarry to fur- nish cars on his side-track, for the transportation of stone, and an employe of the quarry-owner was injured by reason of defective brakes on one of the cars, it was held that the employe had no right of action against the railway company. ^ Mayne on Dam. 83, note. Such ' Winterbottom v. Wright, 10 M. cases rest upon both remoteness of & W. 109. injury and want of privity. Post, ^ Blakemore v. Bristol Ry. Co., 8 416. Cf. Cameron v. Mount, 86 El. & BI. 1035. Yv^is. 477, an interesting but un- satisfactory case. 425 DISCOVERING RIGHT OF ACTION. g 407 because the company did not owe him any duty under tlie contract, and had no control over him.^ 407. Proximate Causes — Breach of Contract, Contin- ued. — Where the lessor of a store-room agreed with his lessee to construct therein cornices, shelvings, and fixtures, in a secure, safe, and proper manner ; and the fixtures so put up were unsafe and insecure from want of sufficient fastenings to the walls of the building, all of which was known to the lessor ; and a customer of the lessee, while properly in tlie room, was injured by the falling of the shelvings, it was held that the customer had no right of action against the lessor.* This decision was based upon the grounds (1) that the cus- tomer had no interest in the contract, or in the breach of it; (2) that it did not appear that there was design on the part of the lessor to injure any one, nor was there such reckless- ness as to be the equivalent of such design ; and (3) that the lessor could not be held liable on the ground that the nox- ious structure was a nuisance for which he was responsible. The reasons for refusing an action under a contract, for injury to one not a party to the contract, are thus stated in two cases : " If we were to hold that plaintiff could sue in such case, there is no point at which such actions would stop. The only safe rule is, to confine the right to recover to those who enter into the contract ; if we go one step beyond that, there is no reason why we should not go fifty." ^ And again : " The object of parties inserting in their contracts specific undertakings ... is, to create an obligation inter sese. These engagements and undertakings must neces- sarily be subject to modification and waiver by the contract- ing parties. If third persons can acquire a right in a con- tract, in the nature of a duty to have it performed as con- tracted for, the parties will be deprived of control over their 1 Roddy V. Mo. Pac. Ry. Co., 104 Pa. St. 70. Cf. Bailey v. Gas Co., Mo. 234. 4 O. C. C. Rep. 471. Contra, Cook 2 Burdick v. Cheadle, 26 O. S. v. Dry Dock Co. , 1 Hilton, 436. 393 ; Collis v. Selden, 3 C. P. Law 3 per Alderson, B., in Winter- Rep. 495 ; Longmeid v. Holliday, bottom v. Wright, 10 M. & W. 109, 6 Exch. 761 ; Losee v. Clute, 51 N. 115. Y. 494; Curtain v. Somerset, 140 § 408 APPLICATION OF PRINCIPLES. 426 own contracts." ^ To these prudential reasons, it may be added, that in such cases there is no causal connection between the negligence complained of and the injury sustained. The person injured reposed no confidence in the person complained of, and the latter accepted no confidence of the former ; an independent liuman agency was interposed, the negligence became the remote cause of the injury, and there was no jural relation between the parties. A gas company, under a contract with the plaintiff to supply a service pipe from their main to the metre on his premises, laid a defective pipe, from which the gas escaped. The plaintiff engaged a gas- fitter to lay pipes from the metre over his premises ; and a workman, sent by the gas-fitter to do the work, negligently took a lighted candle to find where the gas escaped. An explosion resulted, and the company was held liable for the injury to the premises. ^ The gas-fitter was regarded as an independent workman, with whose negligence plaintiff was not chargeable ; and so the causal connection between the company's negligence and the plaintiff's injury was unbroken. This is perhaps an extreme view, but it clearly distinguishes this case from the preceding cases. 408. PFoximate Causes— Acts Wrongful per se. — But where an act is in itself unlawful, the wrong-doer is liable to any person sustaining injury that is the natural and necessary result of the wrongful act.^ In such case, no privity is requisite, except such as grows out of the unlawful act. Where a father purchased a gun for the use of his son, and the seller, knowing it was to be used by the son, falsely warranted it to have been made by a particular maker, and to be well made, he was held liable in tort, at the suit of the son who, while using the gun, was injured by its explosion.* But where B., the owner of a flock of sheep, known by him ^ Per Depue, J. , in Marvin Safe Vandenburgh v. Truax, 4 Den. Co. V. Ward, 46 N. J. L. 19, 24. 464 ; Scott v. Shepard, 2 W. Black. 2 Burrows v. March, etc. , Gas Co. , 892. Cf. Guille v. Swan, 19 Johns. 39 L. J. Exch. 33 ; S. C. L. R. 5 381. Exch. 67. Cf. Lannen v. Albany * Langridge v. Levy, 2 M. & W. Gas L. Co., 44 N. Y. 459. 519. Cf. Fultz v. Wycoff, 25 Ind. » Myers v. Malcolm, 6 HiU, 292 ; 321. 427 DISCOVERING RIGHT OF ACTION. g403 to have a contagious disease, though apparently sound, by falsely representing them to be sound, sold them to A., act- ing as the known agent of C, who, as B. knew, intended to mingle them with other sheep then owned by C. ; and C, hav- ing so commingled them, sold the entire flock to A., neither A. nor C. then knowing of the disease, and A. suffered further damage from tlie continued spread of the disease ; it was held that A. could not maintain an action against B., because the representations were not made to A. to induce him to act upon them in any matter affecting his own inter- ests.^ Where A. had agreed to bring certain animals for sale and delivery to B., at a specified place ; and C, by falsely representing to B. that A. had abandoned the con- tract, procured B. to supply himself by purchase of like animals from C. ; it was held that A. had a right of action against C, for his expenses and loss of time in bringing the animals to B., and in otherwise disposing of them.^ Where A. wrongfully threw a lighted squib into a crowd, and it was knocked from hand to hand until it struck B. in the face, and exploded, injuring him, A. was held liable to B., on the ground that his act was unlawful, wanton, and dangerous, and he must be held to have intended the natural and probable consequences of his voluntary act. The original throwing was the direct cause of the injury, because the throwing by the intermediate persons, in self-defense, was but a continuation of A.'s act.^ One who negligently sets a fire is liable, it would seem, for all buildings destroyed or injured by the same continuous conflagration.* 1 Wells V. Cook, 16 0. S. 67. Cf. Ry. Co., 49 N. Y. 420 ; Penn. Ry. McCracken v. West, 17 Ohio, 16. Co. v. Hope, 80 Pa. St. 373 ; St. J., 2 Benton v. Pratt, 2 Wend. 385. etc., Ry. Co. v. Chase, 11 Kan. 47 ; 8 Scott V, Shepherd, 2 W. Bl. Atchison, etc., Ry. Co. v. Bales, 16 892. Kan. 252 ;' Atchison, etc., Ry. Co. * Kellogg V. Chicago, etc., Ry. v. Stanford, 12 Kan. 354; Anna- Co., 26 Wis. 223; Hart V. Western polls Co. v. Gantt, 39 Md. 115; Ry. Co., 13 Met. 99; Milwaukee, Scott v. Shepherd, 2 W. Bl. 892; etc., Ry. Co. v. Kellogg, 94 U. S. Cleveland v. G. T. Ry. Co., 42 Vt. 469; Higgins V. Dewey, 107 Mass. 449; Field v. N. Y. C. Ry. Co., 32 494; Fent V. Toledo, etc., Ry. Co., N. Y. 339; Webb v. R. W. & O. 59 III. 349 ; Webb v. Rome, etc., Ry. Co., 3 Lans. 453. Cf. Ins. Co. g409 APPLICATION OF PRINCIPLES. 428 409. Proximate and Remote Causes, Continued.— The law imposes upon one who deals in articles that are dangerous in their character a duty to persons who do not deal directly with liira in relation to such articles. The public safety requires, and the law demands, that he shall see to it that through no negligence of his in keeping, hand- ling, and disposing of such articles, shall injury ensue to another ; and for breach of this public duty, he is liable in damages. A druggist, by his servant, negligently sold laud- anum, a deadly poison, as and for tincture of rhubarb, a well- known and harmless medicine, to one who procured it for the purpose of administering it, and who did administer it, to his servant, who died from its effects ; and it was held that the druggist was liable in an action brought by the administrator of the deceased person, notwithstanding there was no privity of contract between the decedent and the druggist.^ A., knowing naphtha to be a dangerous explosive, sold some of it to a customer, knowing that he intended to retail it to his customers for illuminating purposes. A.'s vendee, ignorant of its explosive qualities, sold some of it to B., who, in like ignorance, used it in his lamp. It exploded and injured B. and his property ; and it was held that B. had a right of action against A., although there was no privity of contract between them.^ A druggist who carelessly labels a deadl}' poison as a harmless medicine, and sends it so labeled into the market, is liable to one who, without fault on his part, is thereby misled and is injured by using it ; and this, although the medicine had, in this form, passed through several intermediate agencies.^ In such case, whatever may be the circuit of events, the law will look onl}'- to the corrupt beginning, according to the maxim, dolus circuitu iion pur- gatur.^ V. Tweed, 7 Wall. 44; Powell v. Thomas v. Winchester, 6 N. Y. Deveney, 3 Cush. 300 ; Lynch v. 397. Nurdin, 41 Eng. C. L. 422. Contra, « Wellington v. Kerosene Oil Co., Penn. Ry. Co. v. Kerr, 62 Pa. St. 104 Mass. 64. 353 ; Ryan v. N. Y. C. Ry. Co., 35 s Thomas v. Winchester, 6 N. Y. N. Y. 210. 397. Cf. Davis v. Guarnieri, 45 O. i Norton v. Sewell, 106 Mass. 143 ; S. 492. Davis V. Quarmeri, 45 O. S. 470 ; * Cooley on Torts, 75. 420 DISCOVERING RIGHT OF ACTION. § 41 But where an article in itself harmless, but dangerous • »» combination with some other substance, is sold by one who does not know that it is to be used in such combination, the seller is not liable to one who purchases the article from the original vendee, and is injured while using it in such com- bination, even though, by mistake of the original vendor, the article actually sold is different from that intended to be sold.i The reason for such exemption from liability is, that the defendant owed the plaintiff no duty imposed eitlier by contract or by law. There was no fraud or false representa- tion in the sale, and, the article sold being in itself harmless, thei'e was no duty of care or caution imposed upon the seller. 410. Proximate and Remote Causes, Continued. — Where the declaration alleged that the defendant negligently sold and delivered gunpowder to the plaintiff, a boy eight years old, known to defendant to have no knowledge or ex- perience as to the use of gunpowder, and to be an unfit person to be intrusted with it, and that the child exploded it and was thereby burned, the declaration was held good on de- murrer.2 But upon the trial of the case, it appeared that the boy had taken the powder home, and had there put it in the custody of his parents. After several days, the boy's mother gave him some of the powder, which he exploded with her knowledge. This was done a second time, when the injuiy complained of occurred. It was thereupon held, that there was no right of recovery, because there was no necessary or natural connection between the sale and the injury, and the sale, though negligent and wrongful, was not the proximate cause of the injury.^ In other words, the intervention of an independent agency broke the causal con- ^ Davidson v. Nichols, 11 Allen, produce injury, is responsible for 514. the natural and probable conse- 2 Carter v. Towne, 98 Mass. 567. quencesof his act to any person not This holding was on the ground himself in fault. The liability does that one who negligently uses a not rest upon privity of contract, dangerous article, or causes or au- but on the duty of every one so to thorizes its use by another, under use his own as not to injure the Buch circumstances that he has person or the property of another, reason to know that it is likely to » Carter v. Towne, 103 Mass. 507. §411 APPLICATION OF PRINCIPLES. 430 nection, and the wrongful sale became the remote, and hence the irresponsible, cause of the injury. Where a horse, drawing an omnibus in the street, fell about the middle of the street, and in its struggles to get up fell repeatedly, until it went over a declivity at the side of the street, where there was no railing, it was held that a passen- ger in the omnibus could not recover from the city for injury sustained, because the proximate and efficient cause of the injury was the fall of the liorse, and this was not due to the negligence of the city in not providing a railing.^ Where the defendant negligently left his horse and cart unattended in the street, and the plaintiff, a child seven years old, got upon the cart in play, and another child in- cautiously led the horse on, and the plaintiff was thereby thrown down and hurt, the defendant was held liable. His negligent act was the proximate cause, for there was no in- tervening responsible agency to arrest causation; and the concurrence of the natural indiscretion of the children with the defendant's negligence ought not to relieve him from liability.'^ 411. Proximate and Remote Causes, Continued. — One who is placed in sudden peril by the wrongful act of another, is not chargeable with contributory negligence by acting erroneously in a reasonable endeavor to extricate himself. Where a passenger in a coach, in an accident for which the proprietor was responsible, leaped from the coach and thereby broke his arm, it was held, that if the leaping from the coach was, under the circumstances, a reasonable precaution, the proprietor was liable, though it turned out that the passenger might have retained his seat in safety.^ The leaping was the proximate, but not the efficient, cause of the injury. 1 Herr v. Lebanon, 149 Pa. St. Ry. Co. v. Paulk, 24 Ga. 356 ; Wil- 222. son V. N. P. Ry. Co., 26 Minn. 278 ; 2 Lynch v. Nurdin, 1 Ad. & Ell. Twomley v. C. P. N., etc., Ry. Co., N. S. 29. 69 N. Y. 158 ; Stokes v. Saltenstall, ' Ingalls V. Bills, 9 Met. 1 ; Jones 13 Pet. 181. Cf. McKinney v. NeU, V. Boyce, 1 Stark. 493 ; Frink v. 1 McLean, 540 ; Oliver v. La Valle, Potter, 17 111. 406 ; Buel v. N. Y., 36 Wis. 592 ; Filer v. N. Y. C. Ry. etc., Ry. Co., 31 N. Y. 314; S. W. Co., 49 N. Y. 47. But this rule 431 DISCOVERING RIGHT OF ACTION. §412 Where one is lawfully driving on a highway, and under apprehension of imminent peril by the near approach of his carriage to a defect in the highway, leaps from his carriage, and is thereby injured, it becomes a question of fact as to whether, in leaping, he exercised reasonable care under all the circumstances.^ If he did, such act, though the immedi- ate cause of his injury, does not, it seems, stand in the way of recovery ; if he did not, his negligent act contributing to his injury, should prevent recovery. But where, on account of a defect in the highway which the defendant was bound to repair, the plaintiff turned into adjoining land, and there drove into a hole in the bottom of a pond, and was thrown from his wagon and injured, it was held that the defendant was not liable. The proximate cause of the injury was tlie hole in the pond, and not the defect in the highway. The plaintiff never reached the defect in the highway. He avoided it, and after he had turned from the highway, and was on land which nobody was bound to keep in safe condition for travel — when he was using this land at his own peril, he encountered the efficient cause of his injury.^ 412. Proximate and Remote Causes, Continued. — A defect in the highway of a city frightened a team of horses, and they ran away. After running fifty rods, they ran against plaintiff in the highway, and injured him. Held, that he could not recover from the city because there was too great a difference, both in distance and in causation, to make the defect in the highway the proximate cause of the injury.^ will not be applied where the dan- ^ Marble v. Worcester, 4 Gray, gcr is only a danger to property, 395. In this case, Justice Thomas, and one that has been apprehended, in a dissenting opinion, says : " In or should have been apprehended determining what is the true, cause for days prior to the event ; Brown of a given result, where two or V. Brooks, 85 Wis. 290 ; nor where more causes seem to conspire, the the injured person, voluntarily or reasonable inquiry is, not which is negligently, put himself in a peril- the nearest in place or time, but ous position ; Berg v. Milwaukee, whether one is not the efficient 83 Wis. 599. procuring cause, and the ether but ^ Lund V. Tyngsboro, 11 Cush. incidental. We are to seek the 563, 565. efficient, predominating cause, and 2 Tisdale v. Norton, 8 Met. 388. not merely that which was in ao §413 APPLICATION OF PRINCIPLES. 43^ But the authority of this case is weakened, not only by a well reasoned dissenting opinion therein, but by a later case in the same court, wherein the defendant negligently drove his sled against another, causing the horses attached thereto to run away ; and in their flight, after turning into another street, they ran over the plaintiff and his sleigh, injuring both. The defendant was held liable ; the court saying : " There can be no doubt that the negligent management of horses, in the public streets of a city, is so far a culpable act that any party injured thereby is entitled to redress. Whoever drives a horse in a thoroughfare, owes the duty of due care to the community, or to all persons whom his negligence may expose to injury.^ Where a fair association permitted teams to be driven around the race-track after the races were over, and the driver of a team of young horses whipped them into running away, and they ran off the track, and injured a visitor, it was held, that the injury was not the direct or natural conse- quence of the permission to use the track, but was caused, proximately, by the act of the driver, and that the associa- tion was not liable -2 413. Proximate and Remote Causes, Continued. — Where the defendant had libeled a singer in the plaintiff's oratorio, by reason whereof she was deterred from singing, for fear of being badly received, it was held that the damage to the plaintiff was not sufficiently connected with the act of the defendant to sustain the action ; and the plaintiff's loss was, as to the defendant, damnum absque injuria. The refusal to sing, it was suggested, might have proceeded from groundless apprehension, or from mere caprice.^ A stronger tivity at the consummation of the cester, supra, in that the last accident or loss." This case is per- named case was to enforce a statu- plexingly near the line between tory liability of towns for injuries proximate and remote causes ; and resulting from defects in high- it shows how dim and shadowy the ways ; while McDonald v. Snelling region of this dividing line may was to enforce a common-law sometimes be. liability. 1 McDonald v. SneUing, 14 Allen, " Barton v. Agricul. See. , 83 Wis. 290. In this case it was suggested 19. that it differs from Marble v. Wor- ^ Ashley v. Harrison, 1 Esp. 433 DISCOVERING RIGHT OF ACTION. §414 case was where the defendant so beat and disabled an actor as to prevent him from performing his engagement with the plaintiff ; and it was held that the resulting loss to the plaintiff was too remote to give him a right of action against the defendant.^ These two cases came under criticism in a sebsequent action in which the manager of a theater sued the manager of a rival thpater for enticing and procuring a singer to break her engagement with plaintiff. On demurrer to the declaration, the court held that the action was for maliciously procuring a breach of contract, and sustained the action.^ Here was an invasion of a legal right — a wrongful interfer- ence with the plaintiffs servant ; and there were both damnum and injuria. The fact that the plaintiff had also a right of action against the singer herself could not shield the defend- ant from liability. Where one sustains a contract relation with another, and suffers loss by a third person's wrongful act with reference to such other party, he is remediless, unless such wrongful act is willful and intended to injure him. For example, where one has contracted to support all tlie paupers of a town, in sickness and in health, for a specified time, and for a specified price, he has no right of action against another who assaults and beats one of the paupers and thereby in- creases the expense of supporting him.^ And one who is, by contract, entitled to the entire product of a manufacturing company, has no right of action against a wrong-doer who» by trespass, stops the company's machinery, and prevents it from furnishing so much under its contract as it otherwise would have furnished.^ 414. Proximate and Remote Causes, Continued. — The intervening act of an independent voluntary agency does not arrest causation and relieve the first wrong-doer, if the inter- vening act is one that might reasonably be expected to follow. 48. Cf. Grain v. Petrie, 6 Hill, 522 ; 2 Lumley v. Gye, 2 El. & Bl. 216. Butler V. Kent, 19 John. 223. » Anthony v. Slaid, 11 Met. 290. 1 Taylor v. Neri, 1 Esp. 386. On Cf. Lumley v. Gye, 2 El. & Bl. 216. the ground, it seems, that the actor * Dale v. Grant, 34 N. J. L. 142. was not the plaintiff's servant. 28 § 414 APPLICATION OF PRINCIPLES. 434 Thus, if A. negligently leaves his horse unhitched in a street, and it runs away, and as it runs people rush toward it endeav- oring to stop it, and cause it to turn from its course and come in contact with the horse and buggy of B., doing injury thereto, B. has a right of action against A.^ And where a lumber dealer negligently piled some timbers so near a pas- sage-way that the wheel of a customer's wagon casually caught a projecting timber and threw the whole pile upon another customer, and injured him, the negligence of the lumber dealer was held to be the proximate cause of the injury .^ In such cases, while the injury would not have ensued, but for the intervening act, the intervening act is one that might reasonably be expected to follow from the negligence, and hence does not arrest causation ; and the negligence is the efficient cause of the injury. But if the intervening act is one not likely to follow the original negligence, it will, in general, be regarded as the proximate cause of the injury. Where the defendant contracted to tow plaintiff's barge and cargo, by means of a steam-tug, from Bay City, Michigan, to Buffalo, New York, and voluntarily and needlessly delayed during the voyage, so that after the delay, the barge and cargo were lost in a storm that would not have been encoun- tered but for the delay, it was held that the defendant was not liable. This was on the ground that the loss by storm was not a consequence of the delay in such sense as to give the two events any natural or necessary connection. At the time of the delay, it was no more likely that it would im- peril the barge, than that it would avoid peril ; in fact, if the delay had been prolonged, and the default of the defend- ant therefore greater, the peril would have been avoided. The storm was the proximate, and the delay the remote cause of the loss.^ * Griggs V. Fleckenstein, 14 Minn. 532 ; Carter v. Towne, 103 Mass. 81 ; Scott V. Shepherd, 2 W. Black. 507 ; Proctor v. Jennings, 6 Nev. 892. Cf. Lynch v. Nurdin, 1 Ad. 83 ; Tutein v. Hurley, 98 Mass, 211. & Ell. N. S. 29. Cf. Parker v. Cohoes, 10 Hun, 531 ; 2 Pastene v. Adams, 49 Cal. 87 ; Clark v. Chambers, 3 Q. B. Div. Powell V. Deveney, 3 Cush. 300. 327 ; Doggett v. Richmond, etc., « Daniels v. Ballantine, 23 O. S. Ry. Co., 78 N. C. 305. 435 DISCOVERING RIGHT OF ACTION. g41o From the foregoing authorities it will be seen that the in- tervention of acts and events between the wrongful cause and the injurious consequence does not necessarily avoid liability. " The test is to be found, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious consequence. So long as it afifirmatively appears that the mischief is attributable to the negligence, as a result that might reasonably have been foreseen as prob- able, the legal liability continues." ^ Even the act of the in- jured pereon may be the more immediate cause of his injury, but if reasonably induced by the prior misconduct of the de- fendant, and without fault of the plaintiff, the act of the defendant remains the efficient and responsible cause. But where the act complained of causes injury only by reason of the intervention of unusual, extraordinary, and predominating circumstances, there can, in general, be no liability .^ IV. PRIVITY AS AN ELEMENT OF RIGHTS OF ACTION. 415. The Doctrine of Privity in Procedure. — The term privity denotes, in general, mutual or successive relationship to the same rights of property ; and privies are distributed into several classes, according to the manner of this relation- ship. There are privies in estate, as donor and donee^ lessor and lessee ; privies in blood, as ancestor and heir; privies in representation, as testator and executor ; privies in law, where the law, without privity of blood or estate, casts prop- erty upon another, as by escheat ; privies in respect to con- tract ; and privies on account of estate and contract together. Privity of contract is the jural relation which subsists between two contracting parties. A lessee, from the nature of his covenants, is related to his lessor by both privity of contract and privity of estate. He may, by assignment, destroy his * Per Foster, J., in McDonald v. ages, sec, 51-84 ; 1 Suth. on Dam, Snelling, 14 Allen, 292, 296. pp. 21-74 ; Weeks' Dam. Abs. Inj., ' For further treatment of the passim ; 2 Thomp. on Neg. ppi subject of proximate and remote 1063-1101. causes, see Wood's Mayne on Dam- ^§416-417 APPUCATION OF PRINCPLES. 435 privity of estate, leaving the privity of contract subsisting ; for he would remain liable on his covenants, notwithstanding the assignment of his lease. In procedure, the term privity has a threefold application. (l)The admissions of one person may be competent evidence against another who stands in privity with him, on the ground that the two are identified in interest ; (2) one may be estopped by that which bound him to whom lie is privy ; and (3) one may acquire a right, or incur an obligation, by privity with another.^ 416. Privity of Contract — When Necessary. — It was a rule of the common law that before one may complain of another for breach of contract, there must be some direct con- tractual relation, or privity, between them ; and this, with only a few exceptions, is a requirement of the law to-day. If A. sell to B. a horse to be used in a livery, and let for hire, and warrant it to be gentle, kind, and steady, when in fact it is vicious and unmanageable, A. would be liable to B. for damages sustained by him because of the viciousness of the horse ; ^ but he would not be liable to C., who hired the horse from B. and was injured because of its viciousness, for there would be no privity between A. and C. So, likewise, if a blacksmith shoe a horse defectively, in consequence of which the horse falls and injures its rider, who procured it from the owner, the smith is not liable for the injury, because there is no privity between him and the injured person, and he owed him no duty, private or public, in the premises. The general rule is, that where injury results from a breach of contract merely, no action, whether ex contractu or ex delicto^ can be maintained, except by those who are privy to the contract. In the cases just supposed there is no right ex contractu^ for want of privity, and there is no right ex delicto^ because the injury is too remote.^ 417. Privity of Contract — When not Necessary. — Where one makes a fal"'*. and fraudulent representation to 1 Ante, 326. » Ante, 406. 2 C/. Cameron v. Mount, 86 Wis. 477. 437 DISCOVERING RIGHT OF ACTION. §417 another, with the knowledge and intent that it is to be acted upon by a third person, he is liable to such third person, who acts upon the representation and is injured, if the injury be the immediate and not the remote consequence of such representation. In all cases where an act is itself unlawful, the doer of it is liable to any person sustaining injury therefrom, as a natural and necessary result thereof. In such case, no priv- ity is necessary to the maintenance of the action. Wliere a dealer in drugs and medicines carelessly labels a deadly poison as a harmless medicine, and sends it so labeled into tlie market, he is liable to all persons, who, without fault on their part, are injured by using it as such medicine, in consequence of the false label.^ The liability of the dealer in such case arises, not out of any contract or direct privity between the dealer and the person injured, but out of the duty which the law imposes upon him to avoid acts in their nature dangerous to the lives of others. He is liable, there- fore, though tlie poisonous drug with such label may have passed through many intermediate sales before it reached the hands of the person injured. There is a maxim that *' fraud is not purged by circuity ; " and this is true of any wrongful act whose influence must naturally, and without the interposition of any extraordinary event, produce injury to some one ; and it matters not in such case what may be the circuit of intervening ordinary events.^ But the courts have been careful to restrict the application of this rule within safe and reasonable limits. Its application to one who deals in deadly poisons, is upon the ground that he owes a duty to persons who do not deal directly with him. The public safety against fatal consequences from negligence in keeping and disposing of such articles is a consideration to which no dealer may safely close his eyes. An imperative social duty requires him to use such precautions as will be likely to avoid injury to those who may, in the ordinary 1 Thomas v. Winchester, 6 N. Y. « Cooley on Torts, 75. 397. §^5 418-419 APPLICATION OF PRINCIPLES. 45S course of events, be exposed to the dangers incident to the traffic in poisonous drugs. ^ 418. Assignment, and Tort, Create no Priyity. — At common law, third persons could not, as a rule, become en- titled, by the contract itself, to demand the performance of any duty under the contract ; though they might, by repre- sentation, or by assignment, become entitled to exercise the rights of a party thereto. But at common law the benefit of a contract could not be so assigned as to enable the assignee to sue thereon in his own name ; and the principal reason was, the want of privity between the assignee and the obligor. Under the new procedure, an action is to be prosecuted in the name of the real party in interest ; and the assignee of a chose in action may sue thereon in his own name, notwith- standing the want of privity. As between the acceptor of a bill of exchange, or the maker of a promissory note, and an indorsee thereof, there is privity created by the terms of the contract, although the indorsee is not named therein. The rights of an acceptor supra protest rest upon other ground.^ The jural relation between a tort feasor and the injured party is not that of privity. Most torts are independent of contract ; and torts arising out of contract do not arise from express provisions thereof, but from the breach of an implied duty arising out of, and incident to, the contract. Thus, a surgeon is liable in tort for negligence in the performance of an express contract for skilled services ; negligence in such case being a breach of the implied duty to exercise reasonable care and skill in the performance of his con- tract.3 419. Fiction of a Promise, to Adapt Certain Reme- dial Riglits to Assumpsit. — At an early period of proced- ure, recovery was denied in some instances, because, for 1 Owen, C. J., in Davis v. Guar- » 1 ^^d. on Torts (Wood's Ed.), nieri, 45 O. S. 470. For cases illus- 27, note ; Emigh v. Ft. W. & C. trating this doctrine, see ante, 409, Ry. Co., 4 Biss. 114. Cf. Pa. Ry. 410. Co. V. Peoples, 31 O. S. 537, 543. 3 Byles on bills, 271 ; 1 Dan. Neg. Inatr. 526. 439 DISCOVERING RIGHT OF ACTION. j; the case of a public nuisance, since the law does not imply damage to any particular individual from the public offense, the plaintiff must set out the special damage resulting to him therefrom.^ The reason is, that such averment is necessary to show the infringement of a private right. But for a private nuisance, such as turning the course of an ancient stream, so that it no longer flows tl rough plaintiff's lands, or projecting the eaves of a build- in j over the lands of plaintiff, it is an intendment of the law that injury results.^ In other words, each of these acts — diverting the stream in the one case, and overhanging the lands in the other — is of itself an invasion of a recognized legal right, and the law gives an action to protect the right, whether actual injury has resulted or not. 427. Damages the Gist of the Action, Continued. — In an action for slander, if the words spoken are not actionable j)er se, there must be actual injury as the basis of an action, and such damage, being the gist of the action, must be specially alleged and proved. If the words are actionable per se, the law imputes damage, so that the mere allegation of the speaking of the words imports the invasion of the right of personal security ; but if the defamatory words are not actionable per se, what the law would otherwise imply must be made to appear by allegation.^ From what has been stated, it will be seen that special damages, whether of the gist of the action, or only collateral thereto, can not be the subject of proof or of recovery, unless specially pleaded. As a general rule, it is not necessary to the sufficiency of a complaint that it state the particular items of damage, though in some cases such particularity of statement may be required, upon motion, in order to fully advise the defend- ant as to what he is expected to meet upon the trial.* 1 1 Suth. Dam. 766 ; Per Coulter, 13 ; Frye v. Prentice, 14 L. J. (N. J., in Hart v. Evans, 8 Pa. St. 13, S.) 298. 21. 8 Steph. PL 125, in nota ; Hoag * Wood on Nuisances, 97 ; 1 Suth. v. Hatch, 23 Conn. 590. Dam. 766 ; Hart v. Evans, 8 Pa. St. < Mayne Dam. 750. 29 ?^428 APPLICATION OF PRINCIPLES. 450 As to whether facts in aggravation of damages — facts ivhich tend to increase the amount of damages, but do Jiot affect the right of action — should be especially pleaded In order to be the subject of proof, tlie prevailing rule seems to be this : If such facts are not a part of the tortious act complained of, and are separable from the manner of doing such act, they should be stated ; otherwise they need not be stated, for the statement of the tortious act, without the at- tending circumstances, authorizes proof of all that fairly enters into such act as constitutent parts thereof. As to facts in mitigation of damages, the theory of the new pro- cedure, as well as the weight of authority, seems to require them to be pleaded, only when they are so related to the case as to be essentially new matter.^ 428. When Indemnified Party may Sue. — In actions against guarantors, indemnitors, sureties, co-obligors, and the like, a right of action does not arise until the party complain- ing has been damnified. Actio non datur 7ion damnijicato. Damnification is that which causes a loss or damage. For example, one is damnified when he has paid the debt of another ; and generally, he is damnified whenever he becomes liable to be sued for the debt of another. Express contracts for indemnity vary in their scope and terms, and the authorities are not uniform as to the construc- tion and effect of such agreements. Generally, where the undertaking is in terms to save one harmless from some con- sequence, there is no right of action until the promisee has suffered actual loss or injury from the cause against which the indemnity is given.^ In such case, damages are generally * Ante, 385, and cases there cited. Eames, 15 Minn. 461 ; Gennings v. Cf. Boone PI. 76. Norton, 35 Me. 308 ; Ewing v. 2 Aberdeen v. Blackmar, 6 Hill, Reilly, 34 Mo. 113 ; Douglass v. 324 ; Coe v. Rankin, 5 McLean, Clark, 14 John. 177 ; Hussey v. 354 ; Little v. Little, 13 Pick. 426 ; Collins, 30 Me. 190 ; Scott v. Tyler, Crippen v. Thompson, 6 Barb. 532 ; 14 Barb. 202 ; Jones v. Childs, 8 Conner v. Bean, 43 N. H. 202 ; Lott Nev. 121. Cf. Wicker v. Hoppock, V. Mitchell, 32 Cal. 23 ; Hall v. 6 Wall. 94 ; Gardner v. Cleveland, Cresswell, 12 Gill & J. 38 ; Lyman 9 Pick. 336 ; Chace v. Hinman, 8 V. Lull, 4 N. H. 495; Jeflfers v. Wend. 452; Abeles v. Cohen, Johnson, 21 N. J. L. 73 ; Weller v. 8 Kan. 180. Contra, Churchill v. 451 DISCOVERING RIGHT OF ACTION. § 429 regarded as the gist of the action, and actual injury must be alleged, and non damnificatus is a proper plea.^ But where the contract is for more than more indemnity, as where one undertakes, by an original agreement, to pay another's debt, the promisee is damnified whenever the promisor makes •default in payment. The right of the promisee under such contract is, to have his debt paid ; not merely to be indem- nified in continued delinquency to his creditor. So, generally, where the undertaking is to do some act for the benefit of the promisee, as well as to indemnify and save him harmless from the consequences of non-performance, the promisee is damnified, and has a right of action, whenever the promisor fails to perform the act promised ; ^ and the amount of the recovery is generally held to be the full amount of payment or injury to which the promisee is thus exposed.^ 429. When Indemnfled Party may Sue, Continued. — "Where, in part payment for property purchased by the de- fendant from the plaintiff, the vendee agreed to assume certain indebtedness of the vendor, and to save him harmless there- from, and a creditor thereafter sued the vendor on a debt included in the agreement, it was held that the vendor could maintain an action on the agreement without alleging pay- ment by him, and that he could recover the full amount of the debt.^ Where land was conveyed, " subject to mortgages Hunt, 3 Den. 326 ; Conkey v. Hop- 10 Mich. 291 ; Holmes v. Rhodes, 1 kins, 17 John. 113. Bos. & P. 638 ; Furnas v. Durgin, 1 1 Saund. 117. note 1 : HoUand 119 Mass. 500 ; s. C. 20 Am. Rep. V. Malken, 2 Wils. 126; Cox v. 341. Joseph, 5 T. R. 307 ; Archer v. » gtout v. Folger, 34 Iowa, 71 ; Archer, 8 Grat. 539 ; Holmes v. s. c. 11 Am. Rep. 138 ; Lathrop v. Rhodes, 1 Bos. & P. 640, note a. Atwood, 21 Conn. 116 ; Ex parte 2 Lathrop v. Atwood, 21 Conn. Negus, 7 Wend. 499 ; Port v. Jack- 116 ; Stout V. Folger, 34 Iowa, 71 ; son, 17 John. 239 ; Crofoot v. S. c. 11 Am. Rep. 138 ; In re Negus, Moore, 4 Vt. 204 ; Ham v. Hill, 29 7 Wend. 499 ; Port v. Jackson, 17 Mo. 280 ; Wilson v. Stilwell, 9 O, John. 239 ; Thomas v. Allen, 1 Hill, S. 467 ; Furnas v. Durgin, 119 Mass. 145 ; Churchill v. Hunt, 3 Den. 321 ; 500 ; s. c. 20 Am. Rep. 341 ; 2 Suth. Redfield v. Haight, 27 Conn. 31 ; Dam. 610 et seq. Wilson V. StilweU, 9 O. S. 467 ; ■» Stout v. Folger, 34 Iowa, 71 : Crofoot V. Moore, 4 Vt. 204 ; Ham S. C 7 Am. Rep. 138. V. Hill, 29 Mo. 280'; Dye v. Mann, ^§ 430-431 APPLICATION OF PRINCIPLES. 452 amounting to $6,500, which the grantee hereby assumes to pay," it was held that upon default of the grantee as to one oif the mortgages, the grantor had a right of action, without having «im>^elf paid the debt, and that he could recover the amount of the mortgage and interest.^ Where a retiring member of a firm took from liis partner a bond with surety, conditioned for the payment of the firm debts, the obligee may, upon condition broken, and without having himself paid any of the debts, maintain an action on the bond, and recover the amount of the debts remaining unpaid.^ In such actions, if the plaintiff has not himself paid the debt, it is proper practice to make the original creditor a party, so that the court may direct the application of the amount recovered to the discharge of the debt, and thus save the defendant obligor from a second payment, at the suit of the original creditor.^ VI. DIVESTITIVE AND EXCULPATORY FACTS. 430. Considering Both Sides of a Case. — In determin- ing whether a given state of facts gives rise to a right of action, due consideration should be given to facts that are in their nature divestitive or exculjjatory — such operative facts as, if pleaded by the adversary, would constitute a defense of new matter. Such facts are not always voluntarily dis- closed by the client, are sometimes not known to him, and are oftentimes difficult to, discover. Of this nature are, the acquiescence of the injured party, his contributory negligence, a waiver of his rights, the intervention of an independent agency, former adjudication, estoppel, and so forth. 431. Immunity of the State from Suit. — It is an ele- mentary principle that the State can not, in invitum, be subjected to an action at the suit of an individual. This immunity is accorded to sovereignt}"" generally,* and is recog- 1 Furnas v. Durgin, 119 Mass. * Hans v. Louisiana, 134 U. S. 1. 500 ; S. C. 20 Am. Rep. 341. Cf. De Saussure v. Gaillard, 127 2 Wilson V. Stilwell, 9 O. S. 467. U. S. 216 ; Clark v. Barnard, 108 « 2 Suth. on Dam. 615 ; Wilson U. S. 436. V. StiUvell, 9 O. S. 467. 453 DISCOVERING RIGHT OF ACTION. §431 nized by the constitution of the United States.* Hut the immunity is a personal privilege, and mav be waived at the pleasure of the State. This it may do by act of the Isgis- }ature authorizing a suit against it, in which case it may attach any conditions ; ^ or by voluntarily appearing in an action against it ; ^ or by intervening in an action.* While an individual may not maintain an action against the State, without its consent, he may, when sued by the State, assert a counter-claim against it ; but he can use his counter-demand only as a defense, and can not recover judgment for any excess thereof over the claim of the State.^ This immunity of the State is transferred to municipal cor- porations, and to quasi-municipal corporations, such as coun- ties and townships, when in the exercise of public or governmental duties. The doctrine is, that when a city or town exercises a power, or discharges a duty, which is public or governmental in its character, and which is for the benefit of the general public, it simply acts as an agency of the State, and is no more liable than the State would be, unless expressly made so by statute ; but in *^^he exercise of a power or duty conferred for the local advantage of the munic- ipality and its inhabitants, it is liable in damages for injury resulting from negligent performance.^ In the one case, the municipal body exercises the duties of sovereignty, delegated to it by the State, for the more efficient government of a locality ; in the other case, it exercises a power, conferred for its own benefit. The duties in one instance are public, and are superimposed ; in the other, they are quasi-private, and are voluntarily accepted and exercised.'^ ^ U. S. Const., Amendment XI. ; ney. J., in Dayton v. Pease, 4 O. S. Hans V. Louisiana, 134 U. S. 1, 12. 80, 99. ^ De oaussure v. Gaillard, 127 o . ^ This immunity has been ey S. 216. tended to cases where damages 8 Clark V, Barnard, 108 U. S. 436. result from the defective nlan of a * Clark V. Barnara, 108 U. S. public woru, as distmguisnea irom 436. a defective execution thereof — the 6 Kentucky v. Todd, 9 Ky. 708. former resulting from error of 8 Tiedeman Munic. Corp. 824, judgment, the latter from want of ^25, 333 ; 2 Dili. Munic. Corp. 997 ; skill and care. 2 Thomp. on Neg. 2 Thomp. on Neg. 734 ; Per Ran- 735 ; Springfield v. Spence, 39 O. S. § 432 APPLICATION OF PRINCIPLES. 454 432. Acquiescence of the Injured Party. — It is a gen- eral principle of the law, embodied in the maxim volenti non jit injuria^ that no one can maintain an action for a loss, if he has consented to the act that occasions his loss.^ The cases illustrating the application of this principle are numer- ous and varied ; and while it is generally a complete bar to recovery, it sometimes works only a mitigation of damages. Money paid voluntarily, with knowledge that the payee is not entitled to it, can not be recovered ; for the only ground upon wliich recovery could be asked — that the payee was not entitled — was known and acquiesced in. Where an insurance company voluntarily paid money on a policy which it believed at the time of payment had been procured by fraud, it was held that the money so paid could not be recovered. The company had consented to the very state of facts on which it based its demand.^ But if money be paid under a mistake as to a material fact, and payment induced by such mistake, this rule does not apply, for there is no consent to the state of facts upon which recovery is sought. Not so, generally, where the mistake is as to the law. Ignorantia facti excusat — ignorantia legis neminem excusat. It is by reason of the maxim volenti non fit injuria that a seduced woman can not recover for her seduction,^ or for dis- ease contracted from illicit intercourse.* Nor can the hus- band maintain an action for the seduction of his wife, or the father for the seduction of his daughter, if he voluntarily 665, 669 ; Fair v. Philadelphia, 88 i Bro. Max. 268 ; Tech. of Law, Pa. St. 309. And it is not the 225 ; 1 Wait Ac. & Def. 146. policy of governments to indem- ^ Frambers v. Risk, 2 111. App. nify persons for loss sustained, 499 ; Windbiel v, Carroll, 16 Hun, either from want of proper laws, 101. or from the inadequate enforce- ^ 5 Wait Ac. & Def. 662 ; Tech. ment of laws made to secure the of Law, 225 ; Woodward v. Ander- property of individuals ; though in son, 9 Bush, 624; Hamilton v. some states, municipal corpora- Lomax, 26 Barb. 615. In some tions are, by statute, made liable states, however, such action is for loss occasioned by the unre- authorized by statute. strained violence of a mob. Per * Hegarty v. Shine, 7 Cent. L. J. Gholson, J., in CoUege v. Cleve- 291. See, also, 8 Cent. L. J. Ill; land, 12 O. S. 377. Cooley on Torts, 510-514 ; 1 Thomp. on Neg. 115. 455 DISCOVERING RIGHT OF ACTION. §433 permitted the act; and if not consenting, his co-operating misconduct or negligence will go in mitigation.^ ^ 433. Acquiescence of Injured Party, Continued. — In an action by a passenger wrongfully ejected from a railroad train, it appeared that the plaintiff, knowing that the estab- lished rates of the company were in excess of those allowed by law» took passage, intending not to pay the excessive fare, expecting to be ejected, and intending, if ejected, to sue the company in order to make money out of the trans- action. It was held that he could recover only compensatory damages. The expulsion he complained of was sought and expected ; and " to the willing mind there is no injury." ^ I After an actionable wrong has been committed, it is the duty of the injured party to make reasonable efforts to pre- vent its increase. If by a timely and reasonable outlay of money or labor, further loss may be averted or diminished, he must so protect himself ; and for injury resulting from his failure to use such reasonable precaution, he can not recover.^ For example, if one wrongfully break another's window, the cost of repairing the window is the measure of damage ; and if the owner neglect to repair the window, and his furniture should be injured by the consequent exposure, such remote loss must fall upon him. Where persons fight by agreement, it has been almost uni- formly held, that, notwithstanding the act of each is unlaw- ful, and is consented to by the other, the injured party may maintain an action for damages ; ^ but the fact that the parties fought by agreement may be shown in mitigation.^ This ap- parent anomaly rests upon the importance which the law attaches to the public peace, and to the right of personal 1 5 Wait Ac. & Def. 663 ; Week's v. Wright, 45 O. S. 177 ; Bell v. Dam. Absq. Inj. 37-39 ; 3 Add. on Hausley, 3 Jones N. C. 131 ; Stout Torts, 1379. v. Wren, 1 Hawks, 430 ; Adams v. 2 C. H. & D. Ry. Co. v. Cole, 39 Waggoner, 33 Ind. 531 ; Shay v. O. S. 136. Thompson, 59 Wis. 540 ; s. C. 48 * Clark V. Locomotive Works, 33 Am. Rep. 538. Mich. 348 ; Lawson v. Price, 45 & 2 Green, on Ev. 85 ; Barholt v. Md. 123 ; Pierce on Railroads, 273- Wright, 45 O. S. 177 ; Adams v. 3, and note. Waggoner, 33 Ind. 531. * Cooley on Torts, 163 ; Barholt §434 APPLICATION OF PRINCIPLES. 4.55 security. The maxim, volenti non Jit injuria, gives way to one of superior importance — salus populi suprema lex. Upon like principle of public policy, one who, in self-defense, un- necessarily injures his assailant, is liable therefor ; and the contributory negligence of the plaintiff does not prevent a recovery for an injury willfully and purposely committed. 434. Waiver of One's Rights. — The exercise of ^ private right is optional with the person of inherence ; but the per- formance of a duty is compulsory upon the person of inci- dence. One may forego the benefit of a right that concerns only himself, because to do so will not interfere with the right of any other person.^ A waiver is the intentional re- linquishment of a known right. It is voluntary, and implie? an election to dispense with something of value, or forego some advantage which the party might, at his option, have insisted upon.^ A waiver, to be operative, must be supported by a consid- eration, or the conduct relied on as a waiver must be such as to estop the party from insisting upon performance c^ thr duty.^ A right can be waived, only where it might be ut- sisted upon. Therefore, if one be required by the terms of his contract to bring his action thereon within a limited time, no act of his, after the expiration of such time, will consti- tute a waiver of objection as to time.* A waiver by one en titled to the performance of a duty by another is not a per- formance of a duty, but an excuse for noa-pej-formance ; and when relied upon, should be specially pleaded." It has been held that where judgment if prematurely en- tered, as upon a note before due, it is a mere irregularity^ not affecting the jurisdiction, and may be waived. And whero 1 Mayer v. Ry, Co., 143 N. Y. 1. 21 : Lewis v. Phoenix Ins. Co.. 44 Aliter, if other persons have an Conn. 72 ; Livesy v. Hotel Co., interest in the right, or would be Neb. 50. prejudiced by a waiver. For ex- ^ jjjpiey v. .^tna Ins. Co.,30N. ample, an insolvent debtor may Y. 136. not waive a right to property or * Killips v. Ins. Co., 28 Wis. 472, money, to the prejudice of his 482 ; s. c. 9 Am. Rep. 506, 511. creditors. ^ Mehurin v. Stone, 37 O. S. 49 ; 2 Warren v. Crane, 50 Mich. 300 ; Palmer v. Sawyer, 114 Mass. 1. Hoxie V. Home Ins. Co., 32 Conn. 4:57 DISCOVERING RIGHT OF ACTION. ^435 Buch judgment is entered upon a warrant of attorney author- izing a release of all errors, and the record shows such release, the irregularity is waived.^ 435. The Contributory Negligence of Plaintiff.— In actions for injury resulting from the negligence of the defend- ant, the plaintiff can not recover, if his own negligence con- tributed to the injury. This rule rests upon the maxim con- sidered in the last preceding section — volenti non fit injuria. To constitute such contributory negligence, two elements must concur. There must be (1) a want of ordinary care on the part of the plaintiff, and (2) there must be a proximate connection between such want of care and the injury com- plained of. When these two elements concur, the negligence of the plaintiff becomes in law a co-operative cause of his in- jury, and prevents recovery ; for the reason that, otherwise, the plaintiff might obtain from another, compensation for in- jury self-imposed. To make the negligence of plaintiff a proximate cause of his injuiy, and a bar to recovery, it must be such that but for it he would not have been injur©^ If the plaintiff's negligence has placed him in danger, but if, l)y the exercise of ordinary care under the circumstances, the defendant can avoid iiijii'-y ^^ the plaintiff, notwithsL^^idinx' nis negligence, he must do so, and is liable if he does ncx^ In otlier words, it is the duty of each to use reasonable care to avoid injury to the other, and it is the duty of each to use reasonable care to avoid injury from the other's negligence.^ Wliere the injury complained of is the result of a wanton or willful act, the plaintiff's negligence, though it contribute proximately to the injury, does not stand in the way of recov- ery.* A child is held to the exercise of only such care as a 1 Bank V. Milwaukee, etc., MilLs. of contributory negligence, see 2 84 Wis. 2-6. Thomp. on Neg. 1104-1216 ; C Weil ' In such case, the negligence of Ac. & Def. 583-601 ; 1 Shear. & the injured party is only a remote Redf. on Neg. fit -. 4 Am. & Eng. cause of the injury, ana that of the Encyc. or L.aw, 15. other party is the proximate cause. * Brownell v. Flagler, 5 Hill, 282. Kerwhacker v. C. C. & C. Ry. Co., C/. Maumus v. Champion. 40 Cal. 3 O. S. 172 ; Railway Co. v. Kassen, 121 ; Carroll v. Minn. Val. Ry. Co., 49 O. S. 280. 13 Minn. 30 ; Griggs v. Flecken- 8 For a full statement of the law stein, 14 Minn. 81 ; N. J. Exp. Co. § 436 APPLICATION OF PRINCIPLES. 458 child of such age is capable of; and a child of such tender years as not to be capable of exercising any care for its safety can not be charged with contributory negligence ; though in some jurisdictions, the negligence of the parent, if present and exercising control over the child, will be imputed to it. It is not negligence per se for one to risk his own safety in an attempt to rescue another from impending danger. If the rescuer has rashly and unnecessarily exposed himself to dan- ger, he can not recover for injuries thus brought upon him- self ; but if, under the circumstances, the attempt, though perilous, was not rash or imprudent, the injury will be at- tributed to the one who wrongfully imperiled the person sought to be rescued ; and in such case, the rescuer should not be charged with the consequences of error of judgment resulting from the excitement and confusion of the moment.* 436. Intervention of an Independent Agency. — The intervention of an independent act of a third person between the wrongful act complained of and the injury sustained, which independent act is the immediate cause of the injury, breaks the causal connection, and there can be no recovery, unless from the person whose act so intervened.^ Where the defendant unlawfully sold liquor to plaintiff's husband, whereby he became intoxicated, and insulted another, who stabbed and killed him, it was held that the act of defendant was only the remote cause of the death, and that he was not liable.^ It is a well settled principle of the law of agency, that the principal is liable to third persons for the torts of his agent, including willful wrongs, if committed within the scope and course of the employment.* The principal selects his own agent, invests him with authority, and has the right to con- trol him. It is this right of control that creates, and that measures, the responsibility of the principal for the wrongful V. Nichols, 33 N. J. L. 434, 439 ; on Neg. 1089 ; Dam. Absq. Inj. Wynn v. AUard, 5 Watts & S. 524. 131. 1 Pa. Ry. Co. v. Langendorf , 48 » Shugart v. Egan, 83 HI. 56 ; O. S. 316. S. c. 4 Reporter, 3. 2 Whar. on Neg. 134 ; 2 Thomp. * Mech. on Agency, 732-744. 459 DISCOVERING RIGHT OF ACTION. §437 acts of the agent. Therefore, where an employer has not this right of control, he is not, and in justice ought not to be, responsible for an act that he had neither power nor right to control. Where an independent contractor undertakes to accomplish a certain result for his employer, and is not sub- ject to the control or direction of the employer as to the means or manner of doing the work, the employer can not be made liable for injury resulting from the act of the con- tractor; provided (1) that the thing to be done is not in itself unlawful, and (2) that it is something from which, if properly done, no injury can result to third per- sons Where a railroad company contracted with another to build its entire road, not retaining the right to direct or control the manner of doing the work, the company is not liable to a third person for injury resulting from the negligence of the contractor in doing the work.^ When one, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, not- withstanding any accident by inevitable necessity, because he miglit have provided against it by his conti-act.^ 437. Payment by a Stranger — not Defensive. — Per- formance of the acts to which the person of incidence is obliged discharges him, of course, from the obligation. But performance by a stranger does not, ordinarily, operate to discharge the obligor. In the Roman law, payment of a debt by a stranger, even without the debtor's knowledge, extin- guished the debt.* And it has been held in this country that 1 Mech, on Agency, 747, 748. Cf. Stone v. Cheshire Ry. Co., 19 N. Ry. Co. V. Morey, 47 O. S. 207, 216. H. 427 ; s. c. 51 Am. Dec. 192. Cf., 2 Hughes V. C. & S. Ry. Co., 39 where the contract prescribed the O. S. 461 ; McCafferty v. S. D., manner of doing the work, Car- etc. Ry. Co., 61 N. Y. 178 ; S. C. man v. S. & I. Ry. Co., 4 O. S. 399 ; 19 Am. Rep. 267 ; Tibbettsv. Knox, Tiffin v. McCormack, 34 O. S. 638. etc., Ry. Co., 62 Me. 437 ; Cunning- ^Fer Allen, J., in Oakley v. ham V. International Ry. Co., 51 Morton, 11 N. Y. 25, and cases Tex. 503 ; S. c. 32 Am. Rep. 632 ; cited. Bailey V. T. & B. Ry. Co., 57 Vt. « Hoi. Jur. (5th ed.) 268, and 252 ; s. c. 52 Am. Rep. 129. Contra, note 3. §437 APPLICATION OF PRINCIPLES. 450 payment by a stranger, if received as payment of the debt» will extinrjuisli the demand.^ The prevailing doctrine, both in this country and in Eng- land, is, that where one has two separate and independent rights of action, against different persons, to repair the same injury, payment by one, or recovery from one, can not be pleaded in bar of an action at law against the other.^ If property, insured against fire, be burned by the negligence of a railway company, the owner has a right of action against the railway company, for its negligence, and against the insurance company, on its contract. The one is in tort, the other in contract ; and payment by the insurance company of the full value of the property, will not bar an action against the railway company .^ As to the railway company, payment by the insurance company was res inter alios acta, and for that leason was not available to the defendant ; it was a fact that did not belong to the group of facts that fixed the jural relations of the plaintiff and defendant, and for that reason could not be pleaded as a defense of new matter. In an action of trespass against one who, as sheriff, had wrongfully seized the plaintiff's goods under an attachment, the fact that the goods had been burned while in the defend- ani;'is possession, and the value thereof paid to ths plaintiff under a policy 01 insurance, was held not to be available to the defendant, either in bar or in mitigation.* In deciding this case, Judge Cooley said : " It certainly strike? nne, at firct, as somewhat anomalous, that a party should be in n. position to legally recover of two different parties th* full value of goods which he has lost; but we think the lav warrants it in the present case, and that the defendant suffers no wrong by it. He is found to be a wrong-doer in seizing the goods, and he can not relieve himself from respon- 1 Harrison v. Hicks, 1 Port. (Ala.) » Cunningham v. E. & T. H. Ry. 423. - Co., 102 Ind. 478 ; s. c. 20 Reporter, 2 1 Suth. on Dam. 242 ; Mayne on 428 ; Yates v. Whyte, 4 Bing. N. Dam. 114 ; Jones v. Broadhurst, 9 C. 272 ; Weber v. M. & E. Ry. Co., C. B. 173 ; Hoi. Jur. (5th ed.) 268, 35 N. J. L..409 ; Hay ward v. Cain, and nets 3 : Ante, Z'iQ. Cf. Drink- 105 Mass. 213. water v. Dinsmore, oO N. Y. 39o. * Perrott v. Shearer, 17 Mich. 48. 461 DISCOVERING RIGHT OF ACTION. § 437 sibility to account for their full value except by restoring them. He has no concern with any contract the plaintiff may have with any other party in regard to the goods, and his rights or liabilities can neither be increased nor diminished by the fact tliat such contract exists. He has no equities as against the plaintiff which can entitle him, under any cir- cumstances, to an assignment of the plaintiff's policies of insurance. The accidental destruction of the goods in his hands was one of the risks lie ran when the trespass was committed, and we do not see how the law can relieve him from the consequences. If the owner, under such circum- stances, keeps his interest insured, he can not be held to pay the money expended for that purpose for the interest of the trespasser. He already has a right of action for the full value of the goods, and he does not give that away by taking a contract of insurance. For the latter he pays an equiva- lent in the premium, and is therefore entitled to the benefit of it, if any benefit shall result." In some cases it has been held, upon the equitable prin- ciple of subrogation, that the insurance company is entitled, as against the insured, to be reimbursed out of the amount recovered as damages.^ In an action to recover damages for an injury causing death, it was held that the receipt of money on a policy of insurance on the life of the deceased could not be shown for the purpose of reducing the amount of recovery .^ Where one is injured by assault and battery, he may recover, as part of his damages, the amount of a surgeon's bill, although before the trial, but after suit brought, it had been paid by the township trustees, to whom the plaintiff was under no legal liability to refund the amount.^ And in an action for physical injury caused by negligence, the defendant may not show, in mitigation of damages, that the plaintiff's employer continued the plaintiff's wages during the time of his dis- 1 Weber v. M. & E. Ry. Co., 35 'Klein v. Thompson, 19 O. S. N. J. L. 409. 569. "Sherlock v. Ailing, Admr., 44 Ind. 184. § 438 APPLICATION OF PRINCIPLES. 4G2 ability.^ But in a like action, it was held that after the plaintiff had testified to the loss of wages as an item of damages, the defendant was entitled to ask him, in cross- examination, if his employer had not paid his wages during the time lie was sick.^ ', is, to allow the 479 PARTIES TO AN ACTION. §451 party, so as to save the obligor from liability to two actions on the one demand.^ 451. Plaintiffs in Actions ex Contractu, Continued. — An infant has the same right to sue that an adult has, though, as matter of form, his action should be by his next friend. But the father of an infant, being entitled to his services and his earnings, is the proper plaintiff in an action to recover such earnings, unless he has emancipated the child ; in which case the infant should sue.^ Liability for malpractice, though it is usually an incident of contract, is not dependent on privity of contract, and the injured person may maintain an action, though the employ- ment was by a parent or friend.^ The right invaded in such case is not strictly a contract right. Where a promise is made, on a valid consideration, to one for the benefit of another, the one for whose benefit it is made is the real party in interest, and he may, in his own name, subject to some qualifications, bring an action for its breach.* The authorized act of an agent is, in law, the act of his principal. Quifacit per alium^ facit per se.^ Therefore, the principal, and not the agent, is the proper person to sue on an obligation made to an agent as such. And this is so as to public agents, as well as to private agents ; for when a public agent acts by legal authority, and within the line of his duty, his contracts are public and not personal.^ It is sometimes provided by statute that the trustee of an express trust, one with whom a contract is made for the 1 Grain v. Aldrich, 28 Cal. 514 ; cited ; 3 Pom. Eq. Jur. 1284 ; Ry. lapping V. Dufify, 47 Ind. 51. Co. v. Bank, 53 O. S. Whether, in such case, the assignor ^ j Chit. PL 2, note 1. and his assignee of part of the de- ^ Norton v. Sewall, 106 Mass. mand are joint owners, and may 143 ; Thomas v. "Winchester, 6 be joined as plaintiffs, or whether N. Y. 397. one of them should be made a * Ante, 420, and cases cited. See, defendant, quoRre. See 21 Cal. 152. also, Coleman v. Whitney, 20 Atl. As to whether a bank check is an Rep. 322. Cf. Townsend v. Back- assignment, pro tanto, of the fund ham, 143 N. Y. 516. on which it is drawn, see 2 Dan. « 1 Chit. PI. 34 a. Neg. Instr. 1638, 1643, and cases « Comrs. Canal Fund v. Perry, 5 Ohio, 57, 64. §452 APPLICATION OF PRINCIPLES. 4S0 benefit of another, or one expressly authorized by statute, may bring an action without joining with him the person for whose benefit the action is prosecuted. Under favor of such statute, one to whom a note is made payable in ti:;ust for ■others may sue on it without joining them.^ And where a mortgage is made to one in trust for the owners of the notes thereby secured, he may in like manner sue thereon without joining them, even though the trust relation does not appear on the face of the instrument.^ And the holders of the notes being the real parties in interest, may bring the action.^ 452. Plaintiffs iu Actions ex Delicto. — In actions founded upon tort, the general rule is, that he who has sustained the injury is the real party in interest, and should bring the action. In case of injury to, or conversion of, personal property, owned by one, and rightfully in the possession of another, each may be entitled to an action — the one for injury to his possessory right, the other on account of his reversionary interest.* One in possession of land as tenant may sue for a trespass on the land so far as it is an injury to his rights ; and the landlord, while generally he can not sue for trespass, may yet maintain an action for injury that is of •a permanent character, affecting his estate.^ But if the land be in the possession of one as the mere servant or agent of ^the owner, the latter is regarded as in actual possession, and 3ie alone can sue. For personal injury to a servant, he may sue, for the vio- lation of his right of personal security ; and if the injury results in loss of services to the master, he too has a right of action, for the violation of his proprietary right to the servicesj For the seduction of a servant, resulting in loss of services to the master, he has, for like reason, a right of action for such loss ; but the servant, by consenting, is deprived of remedy. Volenti non Jit injuria.^ 1 Scantlin v. AlUson, 12 Kan. 85 ; * 1 Chit. PI. 62 ; Mech. on Nicolay v. Fritschee, 40 Mo. 67 ; Agency, 765. Wolcott V. Standley, 62 Ind. 198. ^ i chit. PI. 62, 63 ; 1 Add. on 2 Hays V. Gas. Co., 29 O. S. 330. Torts, 195. SEttlinger V. Ry. Co., 142 N. Y. e Paul v. Frazier, 3 Mass. 71 ; 189. Broom Max. 268. 481 PARTIES TO AN ACTION. §453 Only a few of the rights arising from torts are assignable so as to authorize the assignee to sue thereon ; the general rule being, that a right of action for injury to property sur- vives to the personal representatives, and is assignable, while the right to redress for a personal wrong — whether to pei-son or to reputation — dies with the death of the person, and is not assignable. This general rule, to which there are few ex- ceptions, practically makes the assignability of a right of action for tort depend upon whether the right is such as would survive to the personal representatives of the injured person.^ n. OF PARTIES DEFENDANT. 453. Some General Considerations. — In determining who should be made parties to an action, it must be borne in mind (1) that the presence of necessary parties is essential to the jurisdiction of the court, ^ and (2) that only parties and their privies will be concluded by the judgment ; ^ and in determining who should be made defendants, the distinc- tion between necessary parties and proper parties should not be overlooked. One who has, or claims, an interest in the controversy adverse to the plaintiff, is a necessary party ; while one whose presence is requisite only to a full and com- plete determination of the questions involved, is a proper party. The distinction between necessary parties and proper parties is well illustrated by an action to foreclose an equity of redemption, explained in the next succeeding section. In actions on express contracts, the agreement itself desig- 1 3 Pom. Eq. Jur. 1275 ; Tyson v. record, are as much bound as if McGuineas, 25 Wis. 656 ; Byxbie named as parties in the record. V. Wood, 24 N. Y. 607; Zabriskie Courts willlook beyond the nominal V. Smith, 13 N. Y. 322 ; McMahon parties, and hold those concluded V. Allen, 35 N. Y. 403. In most of who conducted, directed, and con- the states, the abatement of actions trolled the proceedings. Lovejoy and of rights of action is regulated v, Murray, 3 Wall. 1, 18 ; Bachel- by statute. der v. Brown, 47 Mich. 366, 370 ; 2 Post, 463, 464. Palmer v. Hayes, 112 Ind. 289 ; * It has been held, however, that Stoddard v. Thompson, 31 Iowa, persons who in fact control the 82. proceedings, though not parties of 31 §453 APPLICATION OF PRINCIPLES. 482 nates the parties to the action ; he who assumed the obliga- tion, though not beneficially interested, is the party to be made defendant. But in actions to recover for torts, others than the person who did the wrongful act may be liable, and may be made defendants. A master may be liable for the tortious act of his servant ; the keeper of animals may be lia- ble for certain of their acts ; and one may be liable for the tortious act of another, by his ratification thereof. With a few exceptions, infants are not liable on their contracts ; but with a few exceptions they are liable for their torts. Exec- utors are liable on the contracts of their testators ; but they are, in general, not liable for their torts. One who ought to be a party plaintiff, but who refuses to join in bringing the action, may be made a defendant ; and one may be made a defendant for the purpose of obtaining affirmative relief against him, or siinply to cut off some pretended right which he asserts; and besides the original parties to an action, others may be brought in while it is pending. "The general rule as to parties in chancery is, that all ought to be made parties who are interested in the contro- versy, in order that there may be an end of litigation. But there are qualifications to this rule arising out of public policy and the necessities of particular cases. The true dis- tinction appears to be as follows : first, where a party will be directly affected by a decree, he is an indispensable party, unless the parties are too numerous to be brought before the court, when the case is subject to a special rule ; second, where a person is interested in the controversy, but will not be directly affected by the decree made in his absence he is not an indispensable partj^ but he should be made a party if possible, and the court will not proceed to a decree without him if he can be reached ; third, where he is not interested in the controversy between the immediate litigants, but has an interest in the subject-matter which may be conveniently settled by the suit, and thereby prevent further litigation, he may be a party or not, at the option of the complainant." ^ » Per Bradley, J., in Williams v. Bankhead, 19 Wall. 563. C/. Hughes Tech. of Law, 234. 483 PARTIES TO AN ACTION. § 454 The codes of procedure have, in the main, adopted the equity theory as to parties, with a view to avoid circuity of actions and multiplicity of suits. 454. Parties Defendant in Particular Cases. — In an action for the specific performance of a contract for tlie con- veyance of land, there are ordinarily two things to be affected "by the decree — the purchase-money, and the title to the land ; and all persons having a legal interest in either of these should be parties to the action. If no third person has, or claims to have, an interest in the property, and if the parties to the contract are living, they are the only persons to be made parties to the action. If either of the parties to the contract be dead, the heir or devisee succeeds to his interest in the land, and the personal representative becomes en- titled to the purchase-money if unpaid. If such action be brought by the personal representative of a deceased vendor, his heirs or devisees, if they refuse to join as plaint- iffs, should be made defendants.^ And in such case, if the vendee be dead, the action should be against both his heirs or devisees and his personal representative .^ On the other hand, if the action be against the vendor, and the vendee be dead, the heirs or devisees of the latter, having succeeded to his equitable rights, are the proper parties plaintiff ; ^ and if the vendor be dead, his heirs or devisees, having succeeded to the legal title, should be defendants.* In a suit to foreclose a mortgagor's equity of redemption, whether by strict foreclosure or by judicial sale, the only necessary parties defendant are those interested in the equity of redemption — the mortgagor, his heir, devisee, grantee, or assignee. Other mortgagees and lien-holders are proper, but not necessary, parties. Any mortgagee, be his lien senior, junior, or intermediate, may foreclose without making other lien-holders parties. In such case, the rights of those not 1 Sto. Eq. PL 160, 177 ; Mitchell < Sto. Eq. PI. 177 ; Morgan v. V. Shell, 49 Miss. 118 ; Roberts v. Morgan, 2 Wheat. 290 ; Judd v. Marchant, 1 Hare, 547. Mosely, 30 Iowa, 423 ; Moore v. 2 Sto. Eq. PI. 160 ; Townsend v. Murrah, 40 Ala. 573 ; Potter v. Campemowne, 9 Price, 130. Ellice, 48 N. Y. 321. 8 Buck V. Buck, 11 Paige, 170. §455 APPLICATION OF PRINCIPLES. 434 made parties would not be affected ; and a purchaser at judi- cial sale would take the land subject to their rights.^ But the proper practice is, to make all other lien-holders parties defendant, in order that the sale may be of the whole title, free from incumbrance.^ A mortgagor who has conveyed away his equity of redemption has no interest in a suit to foreclose, and is not a necessary party ,^ unless he is also the debtor, and the plaintiff seeks judgment against him in the same action.* The assignor of a claim for work done or money paid out is not a necessary party to an action thereon by the assignee.^ III. OF THE JOINDER OF PARTIES. 455. The Common-law Rules. — Under the common law, if a right of action is in two or more persons jointly, they should join as plaintiffs in an action thereon. This is so be- cause, (1) one person ought not to sue alone for the whole of that whereof he is entitled to only a moiety, and (2) one who is liable ought not to be subjected more than once for one and the same entire cause.^ And where a primary right has been violated by the joint act or default of two or more, if the remedy be by action ex contractu, the wrong-doei'S should all be joined as defendants ; if the action be in form ex delicto, the wrong-doers may or may not be joined as defendants, at the option of the plaintiff. The reason for this distinction is, that in contracts, if the obligation be joint, the liability can not be otherwise than joint, for a contract with two or more jointly is not a contract with each or with any of them sev- erally ; '' but where wrong-doers join in a tortious act, the act 1 Sto. Eq. PL 193 ; Anson v. An- Semple v. Lee, 13 Iowa, 304 ; Dela- son, 20 Iowa, 55 ; Newcomb v. plaine v. Lewis, 19 Wis. 476. Dewey, 27 Iowa, 381 ; Childs v. * In some jurisdictions, the Childs, 10 O. S. 339 ; Stewart v. joinder of the debtor in such case, Johnson, 30 O. S. 24 ; HoUiger and for such purpose, is authorized V. Bates, 43 O. S. 437. by statute. 2 4 Kent Com. 184-5. C/. Wright « Gunderson v. Thomas, 87 Wis. V. Bundy, 11 Ind. 398 ; Jacobie v. 406. Mickle, 144 N. Y. 237. ^ Gould PI. iv. 56. « Jones V. Lapham, 15 Kan. 540 ; ^ Steph. PI. 36. .Tohnson v. MoneU, 13 Iowa. 300 : 485 PARTIES TO AN ACTION. §456 f> of each is, in law, the act of all, and the acts of all are the acts of each.i Parties plaintiff have not such choice as to joinder or severance, because a right, unlike a liability, can not be joint and several.^ Upon the death of one of joint obligees, the action must be by the survivors ; and if all die, the action must be by the personal representative of the last survivor.^ If one of joint obligors die, the liability passes to the survivors, and on the death of all, it passes to the representatives of the last sur- vivor.* The remedy at common law for non-joinder and for misjoinder is by demurrer, by plea in abatement, by nonsuit, by arrest of judgment, or by writ of error, according to the circumstances of the case.^ 456. Joinder of Parties under the Reformed Proce- dure. — The new procedure has not annulled, but has mate- rially modified, the rules of the common law as to the joinder of parties. Those rules were mainly drawn from the sub- stantive law creating rights and obligations, and fixing their character as joint, or as several, or as joint and several. The like rules of the modern procedure are drawn from the same source ; ^ and the modifications that have been made result mainly from the union of legal and equitable rights and defenses in one action, and from the consequent adoption of some of the broader rules of the equity procedure. The codes generally provide, that all persons having an 1 Gould PI. iv. 66. Torts are in Keightley v. Watson, 3 Exch. 721, their nature several, and the join- 723, 726. der of tort-feasors is allowed be- ^1 Chit. PI. 19, 67; Dicey on Par- cause the law makes each liable for ties, 149 ; Callison v. Little, 2 Por- the acts of all, done in furtherance ter, 89. of the common design. 6 Wait's * Dicey on Parties, 255 ; 1 Chit. Ac. & Def. 110 ; 2 Add. on Torts, PI. 50. 1321 ; Ayer v. Ashmead, 31 Conn. sgteph. PI. 4&-51 ; 1 Chit. PI. 13, 447. 66, 86, 452. Mr. Andrews, in his ''Slingsby's Case, 5 Rep. 19; Ec- edition of Stephen on Pleading, cleston V. Clipsham, 1 Wm. Saund. has added a chapter on "The Join- 153 ; Petrie v. Bury, 3 B. & C. 353 ; der of Parties," which is a vevy Scott V. Godwin, 1 B. & P. 67, 71 ; full and clear treatment of the Foley V. Addenbroke, 4 Q. B. 197 ; subject. See pages 26-51. 6 Cf. Steph. PI. 35. § 457 APPLICATION OF PRINCIPLES. 486 interest in the subject of the action, and in obtaining the relief demanded, may, with certain specified exceptions, be joined as plaintiffs ; that those who are united in interest must be joined, as plaintiffs or as defendants ; and that any one who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a requisite party to a complete determination or settlement of the question involved there- in, may be made a defendant. It will be seen from these provisions that persons united in interest must be joined, while those having an interest in the subject of the action, and in obtaining the relief demanded, mai/ be joined. Persons united in interest ai-e such as have a joint interest ; and these must be joined, because they are necessary parties. But persons not jointly interested may have a common interest in the subject of the action, and in the relief sought ; and these, though not necessary parties, may be joined as plaintiffs. But they must, to be joinable, be interested both in the subject of the action, and in the relief demanded ; and where there is not such community of interest, there can not be joinder. While per- sons, to join as plaintiffs, must have a joint interest, or a common interest, all that is requisite to the joinder of a person as defendant, is, that he have or claim an interest in the controversy, or that he be a requisite party to a complete determination of the matters involved. It is generally provided in the codes, that one who should be joined as a plaintiff, but who will not consent to such joinder, may be made a defendant, and the reason therefor stated in the complaint. This rule is adopted from the practice in equity. The rule at common law was, that a necessar}'- plaintiff could be joined as plaintiff, against his protest.^ 457. Joinder of Parties — Illustrative Cases. — Where there were three obligees in an injunction bond, and there was a breach of the bond that interfered with separate and distinct rights of the obligees, it was held they miglit prop- erly join in an action on the bond.^ The action was not for 1 Steph. PI. 44-47. 2Looniig y. Brown, 16 Barb. 325. 487 PARTIES TO AN ACTION. §457 the infringement of the distinct and disconnected rights of the plaintiffs, but for the breach of the bond ; and in this, and in the relief demanded, they had a community of interest. In an action on a forthcoming attachment undertaking, it was held that subsequent attaching creditors, tliough not named in the undertaking, might be joined as plaintiffs, because of their common interest in the proceeds of the goods attached.^ The several owners of separate tracts of land illegally charged with an assessment may properly join in an action to restrain the collection of the assessment.^ Such parties own separate properties to be affected by the assessment ; but they have a common interest in the subject of the action, and in the relief demanded. The cases are numerous in which a joinder of plaintiffs has been allowed, on the ground of community of interest in the thing com- plained of, and in the relief sought.^ But it is not enough that persons are all interested in the legal question involved ; * they must have a common interest in the thing complained of, and in the remedy sought. Where two railway companies use the same track, they may be joined as defendants at the suit of a passenger injured in a collision caused by the negligence of both companies.^ An assignee for the benefit of creditors may, in one action, enjoin several execution creditors from selling property assigned to him, and levied on by them.^ There can not be joint liability for slander,'^ for defamatory words can not be jointly uttered ; aliter as to libel. ^ It has been held, under the new procedure, that one firm iRutledge v, Corbin, 10 O. S. 516; Barnes v. Beloit, 19 Wis. 93, 478. 94. Cf. W. & K. Bridge Co. v. 2 Glen V. Waddell, 23 O. S. 605 ; Wyandotte, 10 Kan. 326. Upington v. Oviatt, 24 O. S. 232. ^ Colegrove v. Ry. Co., 20 N. Y. 8 Tate V. O. & M. Ry. Co., 10 Ind. 492. 174 ; Foot V. Bronson, 4 Lans. 47, ^ OUphant v. Mansfield, 36 Ark. 52 ; Pettibone V. Hamilton, 40 Wis. 191. Cf. Hillman v. Newington, 402 ; Lutes v. Briggs, 5 Hun, 67. 57 Cal. 56. Contra, Schultz v. Winter. 7 Nev. ^ Webb v. Cecil, 9 B. Mon. 198, 130 ; Fleming v. Mershon, 36 Iowa, * Thomas v. Ramsey, 6 Johns. 26, 413. 32. *Peck V. School Dist., 21 Wis. §458 APPLICATION OF PRINCIPLES. 488 may sue another firm, in au action for legal relief, although the two firms have a common member ; and that it is not necessary to resort to the equitable relief of an accounting.^ 458. One Person may Sue or Defend for all Inter- ested. — The codes provide that " when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all." This iTile is adopted from the equity practice, and is founded on convenience. Of course, one person can not, under favor of this rule, repre- sent others, unless he and they could properly be joined as plaintiffs or defendants, as the case may be ; ^ and the requi- site facts to show both the right of joinder and the right of representation should be averred.^ This provision, which applies as well to legal ac to equitable actions,* embraces two classes of cases ; (1) where many per- sons have a common interest, and (2) where the parties r.re very numerous. To bring a case within the former class, the persons interested need not be so numerous as to make the inconvenience of joinder a reason for allowing part to represent all ; but to bring a case within the latter class, the pleading must show that the parties are so numerous as to render it impracticable to bring them all in ; ^ it has been held in one case that twenty was not a sufficient number ; ^ in another, that thirty-five was not ; '^ and in another, that forty was insufficient.^ But where it was alleged that the parties interested were "more than forty in number,"^ or that they were "about one thousand" in number,^*^ it was held sufficient. iCole V. Reynolds, 18 N. Y. 74. ^Bardstown Ry, Co. v. Metcalf, Cf. 1 Pom. Eq. Jur. 189. 4 Met. (Ky.) 199, 204. 2 Reid V. The Evergreens, 21 How. ^ Harrison v. Stewardson, 2 Hare, Pr. 319, 321 ; Adair v. New River 530. Co., 11 Vesey, 444; Story's Eq. t Kirk v. Young, 2 Abb. Pr. 453. PL 123. * Brainerd v. Bertram, 5 Abb. N. 3Bardstown, etc., Ry. Co. v. Met- C. 102. calf. 4 Met. (Ky.) 199, 204. » Taylor v. Salmon, 4 M. & C. (18 * Piatt V. Colvin, 50 O. S. 703. Eng. Ch.) 134. w Piatt V. Colvin, 50 O. S. 703. 489 PARTIES TO AN ACTION. § 459 The provision under consideration is applicable in actions by heirs, to set aside a deed or will of their ancestor ; ^ to actions by distributees or legatees, for an accounting ; ^ to actions by voluntary unincorporated associations ; ^ to actions by several lot-owners, to enjoin the collection of an illegal assessment ; * and in actions by tax-payers,^ by pew-holders,^ by policy-holders,^ and by creditors to set aside fraudulent conveyances.^ Persons thus represented are not thereby made parties to the action, though they are " in a sense deemed to be before the court." ^ If they come in and share the expenses or the fruits of the action, or if, after reasonable notice, they fail to come in, they will be bound by the judgment rendered.^^ 459. Change of Parties Ponding Suit. — The abatement of actions by the death or disability of a party, is regulated by statute in the different states, and no general rule can be drawn from them. Where it is found that a complete deter- mination of the controversy can not be had without the presence of other parties, the codes generally provide that the court may cause them to be brought in ; and this may be done at any stage of the action, even after appeal.^^ Where a suit is properly brought in the name of a public officer, the expiration of his term of office will neither abate nor discon- tinue the action, because the proceeding is in fact at the suit of the public, represented by the officer.^ The right of third persons to intervene is limited, generally, iHendrix V. Money, 1 Bush, 306. '^Luling v. Ins. Co., 45 Barb. ^McKenzie v. L'Amoureux, 11 510. Barb. 516, where the number repre- * 1 Dan. Ch. PL 235. sented by the plaintiff was three ; ^ Sto. Eq. PI. 99 ; Adair v. New Towner v. Tooley, 38 Barb. 598; River Co., 11 Vesey, 444. Hallett V. Hallett, 2 Paige, 15, 21. i^Sto. Eq. PI. 99, 106 ; Barker v. 3 Sto. Eq. PL 97, 107 et seq. ; Walters, 8 Beav. 92 ; Per DixON, Piatt V. Colvin, 50 O. S. 703. C. J., in Stevens v. Brooks, 22 Wis. The referencea are to section*, NEW MATTER (continued)— defense of, how pleaded, 244, 385. veith denials, in one defense, 65-67, 245. may be both defense and counter-claim, 25ft. defense of, and of denial, joinable, 262. NEW TRIAL— office of and grounds for, 523. NIL DEBIT— general issue in debt, 93. NIL DIGIT— judgment by, 116, 241. NON ASSUMSIT— general issue, 96. NOIT GEPIT— general issue, 107. NON CULI^ABILIS— general issue, 91, 102, 104, 105. NON DETINET— general issue, 90^, 107. NON EST FACTUM— general issue, 93. NON OBSTANTE VEREDIGTO— judgment regardless of verdict, 84, 521. NON-PAYMENT— allegation of, not anticipating defense, 349t NOTICE— when to be alleged, 109. when facts excusing, to be alleged, 191. NUISANGES— right to abate explained, 24, note 1. annoyances that do not amount to, 398, NUL TILL PuECORD- plea of, how to conclude, Q9k goncrnl issiio, 93. under the codes, 383. NUNC n:0 TUNC ENTRIES— nature end office of, 529. 590 INDEX. The references are to sections* 0. OBJECTION TO RULING— nature and object of, 527. must be both objection and exception, 527, OBSCURITY— rules to prevent, 133-136. OPERATIVE FACTS— defined and classified, 3, 185-187. distinguished from evidential, 185-187, 380. some not to be alleged, 348, 349. ORDER OF COURT— defined, and distinguished from judgment, 277. ORDER OF PLEADINGS— in the civil law, 43. at common law, 55. in equity, 149. under the codes, 168. ORDINANCES OF MUNICIPALITY— courts of municipality will take judicial notice of, 840L in aU other courts must be specially pleaded, 340. how to be pleaded, 878. ORIGINAL WRIT— description and use of, 51. form of, 52. OWNERSHIP— of property, how pleaded, 325, 347. how allegation of, traversed, 382. OYER— meaning of, at common law, 370. P. PARTIAL DEFENSES— common-law rule, 241. rule under codes, 242. distinguished from special denial, 243. PARTIES TO ACTIONS— parties, privies, and strangers, 449. necessary and proper, distinguished, 458. must be named in the title, 171-174. INDEX. 591 Tlie references are to sections. PARTIES TO ACTIONS (continued)— natural persons, capacity presumed, 175. presumption as to citizenship, 175. capacity must appear, 177-180. want of capacity, how asserted, 180, 296. new, when may be brought in, and how, 256, 314. real party in interest to sue, 450. of parties plaintiff, 450-452. of parties defendant, 453, 454. of the joinder of parties, 455-457. when one may sue or defend for others, 458. cliange of parties pending suit, 459. modes of objecting as to parties, 460. in action for specific performance, 454. in foreclosure suits, 454. joint violators of contract right must be joined, 455. joint tort-feasors may be sued jointly or singly, 455. joint claimants must sue jointly, 455, one refusing to join as plaintiff, to be made defendant, 456. PARTITION— what title to be alleged in, 324. PARTNERSHIP— how to sue and be sued, 180. capacity as party to be alleged, 180. how to be alleged, 347. PAYMENT— defense of, how pleaded, 363, 478. allegation of non-payment, not anticipating defense, 349. when may be proved under denial, 363. by stranger, when a defense, 437. PERFORMANCE— general averment of, 372, 373. how general averment traversed, 373. when a prerequisite to remedial right, 395. PETITION— See Complaint. PHILOSOPHY— of pleading, 7-39. of defense of new matter, 236. PLACE— when material to a right, 330. when so material, must be alleged, 330. ' . 692 INDEX. The references are to sectiona, PLEADING— office of, 7, 9, 34, 379. essential idea of, 22. as a science, both inductive and deductive, 39. law of, deals with operative facts, 4. code system distinguished, 12. code system, origin of, 159. PLEADINGS IN GENERAL— See Order of Pleadings, defined, 11, and note 2. oral, in early times, 54. origin of written, 55. in equity, 148-158. all should be entitled, 176, 228. to be subscribed, 228. to be verified, 224. frivolous, defined, 279. sham, defined, 279. imcertainty in, how remedied, 283, 284. irrelevant and redundant matter, how eliminated, 280-982. rules for construction of, 351-354. to be constructed with regard to admission of evidence, 379 necessary to confer jurisdiction, 465-467. PLEAS— dilatory, defined and classified, 58. - in bar, defined and classified, 61. - by way of traverse, 62. in confession and avoidance, 69. son assault demesne, 68. in excuse and in discharge, 70. in avoidance, form of, 72. puis darrein continuance, 73. in estoppel, 74. in avoidance, must answer whole declaration, 75. joinder of several, 125. in equity, 157. PILETOR— a Roman judicial officer, 40. his fimctions and powers, 40, and note 1. PRAYER OF COMPLAINT— office of, 218-222. not part of cause of action, 218. alternative and general, 219. relief not prayed for, 220. INbtx. 593 Th^ t^f^r^hces are to sections. PRAYER OF COMPLAINT (continued)- default not admission as to, 220. an election between remedies, 221. not demurrable, 222. PRECEDENTS— early adherence to, 47. not essential to cause of action, 869. PRIMARY RIGHTS— See Right. PRIVATE STATUTES— how pleaded, 378. PRIVITY— meaning of term, 415. of contract, when requisite to right of action, 416. when not so requisite, 417. assignment does not create, 418. none in tort, 418. between landlord and tenant, 422. none between owner and wrongful occupant, 422. when complaint must show, 326. necessity for, gave rise to fiction of implied promise, 419. when stranger to contract may sue thereon, 420. one can not be made debtor by contract agaist his wiU, 421. PROCEDURE— object of, 14. law of, defined and distinguished, 4. comparative importance of, 5. orderly course of, 8. rationale of, 9. various systems compared, 165, 166. PROCESS— original, mesne and final, 53. jurisdiction by service of, 463. PROFERT— meaning of, at common law, 370. PROHIBITION— remedy by writ of, 113. PROLIXITY AND DELAY— rules to prevent, 119. PROMISE— implied, how pleaded, 376, 377, 419. 38 594 INDEX. TTie references are to sections, PROMISSORY NOTE— See Negotiable Instruments. PROPERTY, REAL AND PERSONAL— origin of distinction, 87, note 2. ownership of, how pleaded, 325. PROTESTATION— meaning and office of, 116. PROVISO— See Exceptions and Provisos. PROXIMATE AND REMOTE CAUSES— law regards only proximate causes, 405. proximate caiises in breach of contract, 406, 407. where act complained of wrongful per se, 408. illustrative cases, 408-414. PUBLIC POLICY— place of, in jurisprudence, 396. consideration of, in pleading, 396. PUIS DARREIN CONTINUANCE— plea of, when and how pleaded, 73, 74. PURCHASE FOR VALUE WITHOUT NOTICE— meaning of, 332. when to be alleged, by whom, and how, 333. QUANTUM MERUIT— See Common Counts. QUANTUM VALEBANT— See Common Counts. QUARE IMPEDIT— action of, 88. QUOD RECUPERET— judgment of, 60, 86. QUO WARRANTO— remedy by writ of, 113. B. REAL PARTY IN INTEREST— must be plaintiff, 450. how negatived, 343, 383, and note H. INDEX. 51^5 The references are to sections. REBUTTER— what is, 78. RECORD OF FOREIGN JUDGMENT— how authenticated and proved, 482. RECOUPMENT OF DAMAGES— origin and meaning of, 246. RECOVERY FROM ONE WHERE SEVERAL LIABLE— does not bar recovery from others, 437. reimbursement by subrogation, 437. REDUNDANT MATTER— what constitutes, 281. how eliminated from pleading, 280-282. REFERENCE TO ALLEGATIONS IN ANOTHER CAUSE— by apt words of adoption, 204. REFORMING INSTRUMENTS— nature of remedy , 509. action for, with form of complaint, 509, 510. REFORMING AND ENFORCING INSTRUMENT— whether one or two causes of action, 212-214. REJOINDER— what is, 78. REGULAR PARTS OF PLEADING— enumerated and explained, 168. RELIEF— See Prayer of Complaint. several kinds on one cause of action, 210, 211, REMEDIAL RIGHTS— See Right. REMEDY— by force — transferred to state, 24. may be had where no actual loss, 28. may be loss without remedy, 27. REMTrnruR damnum— excessive verdict cured by, 424, REPEATING AN ALLEGATION— avoided by apt words of reference, 204. REPLEVIN— action of, 106, 107, 491, 492. .596 INDEX, Hie references are to sectioi}^ REPLEVIN (continued)— general issue in, 107. complaint in, 492. judgment in, 107. REPLICATION— when required, 76. form of, 77. REPLY- to be subscribed, 223. when necessary, 267. when not necessary, 268, 269. may contain counter-claim or set-off, 270. to defense of fraud, 271, 272. departure in, 273. how matter of, to be stated, 274. to original answer, good to amended answer, 274. REPUGNANCY— distinguished from surplusage, 138. ground of demurrer, 133. REPUTATION— right to, a right in rem, 19. distinguished from character, 394, note 3. when defamatory words actionable, 394. RESIDENCE— distinguished from domicile, 400. RES JUDICATA— doctrine and scope of, 484. disparting a right of action, 443-446. RESPONDEAT OUSTER— judgment of, 60. RIGHT— legal, defined and distingushed, 15, 16, and note 3« arises from facts and law, 21. constituent factors of, 22. may be actionable invasion without loss, 28. primary and remedial, distinguished, 22,24,33. composition of primary, 16, and note 8, 21. composition of remedial, 29, 32, 388. requisites preliminary to remedial right, 395. actions simply to declare a right, 397. actions to prevent injury to, 398. remedy concurrent with, 13, 23. INDEX. 597 The references are to sections. RIGHT (continued)— one limited by others, 17. private, classification of, 18. in rem—ot personal security, of personal liberty, of property, 19. ill personam — arising ex contractu, ex lege, 20. RIGHT OF ACTION— defined, 29, 389. distinguished from cause of action, 31, and note 3. substantive law an element of, 33. one, stated in several counts, 124, 206-209, actual loss, without remedy, 27, 390. remedy without appreciable loss, 28, 391. simply to declare and establish a right, 397. to prevent injury to a right, 398. against several, satisfaction by one no bar, 437. rule for distinguishing separate rights of action, 438. cases illustrating the rule, 439-442. effect of disparting single right, 443-446. RIGHT, WRIT OF— early action of, 88. ROMAN CIVIL LAW— its gradual development, 40, and note 2. RULE DAYS— meaning of, 278, note 1. s. SALE OF GOODS— actions concerning, 476. SCIENTER— when to be pleaded, 244. SCIRE FACIAS— remedy by writ of, 114. SEDUCTION— in breach of promise, to be alleged, 189. consent defeats recovery for, 432. who may maintain action for, 452. SELF-DEFENSE— right of, explained, 24, note 1. SEPARATE STATEMENT OF CAUSES— joinder a privilege, separation a requirement, 203> illustrative cases, 199, 200, 205. 598 INDEX. The references are to sections. SEPARATE STATEMENT OF CAUSES (continued)— rule for determining whether facts require one or several state* ments, 438. cases illustrating this rule, 439-442. SERVICES— actions to recover for, 448, 475. failure to perform on account of sickness, 448. SET-OFF— in eqmty, 247. in code pleading, 247, 254, 255. nature, scope, and uses of, 254. equitable set-ofif, 255. how pleaded, 260. may be asserted in reply, 270. SEVERAL GROUNDS FOR SINGLE RELIEF— explained and illustrated, 205. SEVERAL INDEPENDENTLY LIABLE— recovery from one does not bar action against others, 437. indemnity by subrogation in such case, 4S7. SHAM PLEADINGS— ♦ what are, and how attacked, 279. SHORT FORMS OF COMPLAINT— when may be employed, 367. how construed, 368. how answer adapted to, 368. SIGNING PLEADING— what suflScient, 223. effect of omission, 223. SIMILITER- the acceptance of issue, 62. required only when issue well tendered, 62, 80, SINGLENESS OF ISSUE— rules for securing, 122-125. SLANDER— See Libel and Slander. SPECIAL ASSUMPSIT— See Assumpsit. SPECIAL DEMURRERr— See Demurrer. INDEX. 599 The references are to sections. SPECIAL PLEAS— what are so called, 74. SPECIAL TRAVERSE— meaning, form, and use of, 65-67. under new procedure, 245, denial, and statute of limitations, 354. SPECIAL VERDICT— distinguished from general verdict, 517. history, purpose, and effect of, 517, 518. SPECIFIC PERFORMANCE— action for, 504. STATE AS PARTY— may not be sued, unless, etc., 431. counter-claim may be asserted against, 256, 431. STATEIklENT- the matter to be stated, 177-192. only facts to be stated, 184. the manner of statement, 193-217. ordinary and concise language, 193. matters that are not to be stated, 341-349. manner of statement, 355-378. facts to be stated issuably, 356, 357. not confined to matters of personal knowledge, 856. by way of recital, inference, or hypothesis, 357. of facts giving different version, argumentative, 359, 364. STATUTE OF FRAUDS— plaintiff need not allege compliance with, 833. defendant must allege compliance, 333, 335. how made available in defense, 334, 335. form for asserting defense of, 335. critique of rules concerning, 335, note 7. STATUTES, FOREIGN— See Foreign Laws. STATUTES, PRIVATE— See Private Statutes. STATUTE OF LIMITATIONS— operates on remedy, and not on obligation, 336. when complaint to allege facts avoiding, 191, 336. not available as defense, unless asserted, 336, 337. may be asserted by demurrer, 295, 336. 600 INDEX. The references are to sections. STATUTE OF LIMITATIONS (continued)— defense of, by answer, 337. exceptions in, need not be negatived, 338. not available under denial, 337. except under denial of title, 382. limitation as element of a right, distinguished, 837, new promise avoiding, 337. may be controlled by contract, 338. governed by lex fori, 338. not generally allowed by amendment, 338. form of asserting in answer, 338. denial, and plea of, in one defense, 354. <;. confers absolute title to real property, 383. STRANGER TO CONTRACT— may sue on, when for his benefit, 420. payment by, when defensive, 437. SUBJECT OF THE ACTION— what is meant by, 181, and note 1. SUBJECT-MATTER OF THE ACTION— what is meant by, 291. SUBSCRIPTION OF PLEADINGS— what sufficient subscribing, 223. omission, effect of, 223. SUBSTANCE— See Form and Substance. SUBSTANTIVE LAW— defined and distinguished, 4. SUPPLEMENTAL PLEADINGS— nature and purpose of, 317. new right may not be asserted by, 817. what may be so pleaded, 318. may be filed only on leave, 319. waiver of right to object to, 318. SURPLUSAGE— does not vitiate a pleading, 133, 352. SURREBUTTER— what is, 78. SURREJOINDER— what is, 78. INDEX. 601 The references are to sections, T. TECHNICAL WORDS— to have technical meaning, 352, TENDER OF PAYMENT— does not bar action, 386. should be aflSrmatively pleaded, 386. THEORY OF A PLEADING— must be regarded in construing, 354, remedy where theory uncertain, 354, TIME— when material to a right, 380. when material, to be alleged, 330. TITLE OF ACTION— the court and the county, 170. names of parties, 171-174. part of complaint, 175. not place for allegations, 177. TITLE TO PROPERTY TO BE PLEADED— complaint must show, 130, 323-325. how pleaded, 130, 325, 347. derivative title, 130, 324, 347. lessee may not dispute lessor's, 324. how title as heir to be pleaded, 324, 343. title to chose in action by assignment, 825. to negotiable instrmnents, 325. TORT— defined and distinguished, 490. arising out of contract, collateral facts to be alleged, 190. in malpractice, occupation to be alleged, 190. actions for, 490, 503. TRAVERSE— meaning of, 62. conclusion of pleas by way of, 62. general traverse, 63. common traverse, 64. special traverse, 65-67, 245. traverse de injuria, 68. upon traverse, issue to be tendered, 117. how general averment of performance traversed, 3!i3, TRESPASS— defined, 100. 602 INDEX. The references are to sections. TRESPASS (continued)— action of, 100-102. possession of plaintiff essential, 101, and note 1. general issue in, 103. judgment in, 102. TRESPASS ON THE CASE— action of, 103, 104. general issue in, 104. judgment in, 104. detinue and trover compared with, 110. TRIAL— modes of, at common law, 62, note 1. object of, 379. its place in procedure, 8. TROVER— action of, 105. general issue in, 105. judgment and its effect, 105. detinue and tresspass compared with, llOl TRUSTEES— how may sue, 451. UNCERTAINTY— See Certainty in Pleading. u. V. VALUE— of services, action for, 448, 475. VARIANCE— meaning and effect of, 379, 530. VENUE— meaning and origin of, 138. VERDICT— See Special Verdict. excessive verdict, how cured, 424t VERIFICATION— of pleadings, required, 324. office and effect of, 325. omitted, or defective, 335. mode of objection to, 225. INDEX. e03 77i€ references are to sections. VroELICET— time, when not material, may be alleged under, 880. material facts in, may be traversed, 357. w. WAIVER— defined, 434. must be consideration or estoppel, 484. of formal defects, 180, 287, 288. of objection to supplemental pleading. 31^ of one's right defeats action, 434. when relied on as defense, must be pleaded, 4SL WANT OF INFORMATION— denial because of, 364. WARRANTY— breach of, distinguished from deceit, 20Bk WAY, PRIVATE— how pleaded, 378. WILLS— when governed by law of domicile, 400> WITHDRAWING A JUROR— practice of, explained, 519, WORDS AND PHRASES— action, 25, and note 8. alleged, 240. as, 177, 353, 357. assigned, 353. bona fide holder for value, 271, cause of action, 30-32, 182. consistent defenses, 261-263, due, 343. due form, 345. duly, 177, 345, 346, 375. duty, 343. entitled to possession, 343. entitled to vote, 343. equitable title, 332. exempt by law, 343. for value received, 353. gist, 192. giving color, 71, 235, 240. heir, 184, 343, 346. 604 INDEX. The references are to sections, WORDS AND PHRASES (continued)— if any, 240. indebted, 184, 343, 346. inducement, 192. irreparable, 184, 334. ordinary and concise language, 193, 351, real party in interest, 343. reasonable notice, 343. right of action, 29-33. rule days, 278, note 1. same transaction, 196, 251. subject of action, 197, 258. subject-matter of action, 18I, note, 252, 291, supposed, 240. unlawful, 184. wager of law, 95. wrongful, 184. WRITTEN INSTRUMENTS- how pleaded, 365. 366. WRITS— See Original Writ, writ of right, 88. writ of assize, 88. writ of dower, 88. LAW UBIRARY ^S ANGELES UC SOUTHERN REGIONAL LIBRARY FACIL|TY VWNOUUl FUI '■;7'"^;iJi'852 143 7'