A treatise on the Maryland, simplified, preliminary procedure and pleading, in courts of law

Front matter

Cornell University Library KFM1735.T98

The original of tliis book is in tine Cornell University Library.

There are no known copyright restrictions in the United States on the use of the text.

Dedication

TO THE MAEYLAND BAE,

This book is dedicated, by one, who feels a State as well as a professional pride, that from colonial times to the present day, Maryland has been, and is, pre-eminently distinguished for able lawyers. It is hoped that, while the new system of pleading, which the book unfolds, will be an easier and surer means of administering the law, than the old was, it will be also found a better discipline for involving, invigorating and sharpening the intellectual faculties of the student, as it conforms legal logic more nearly to common logic. With this hope, it is anticipated, that the Bar will continue to be the leading class of Maryland citizens, alike distinguished for legal learning, professional honor, and a bland courtesy which seeks the respect and the favor of the people.

SAMUEL TYLER.

Contents

Intbobvction 11

Parties to an Action 17

CU AFTER FIEST.

CHAPTER SECOND. Pleading 45

Common law and Civil law pleading compared — How pleading is related to evidence — What defects in pleading the simplification is intended to remedy — The Rules and Forms of Pleadings — The nature of Form.

The Simplified Pleading H

The Rules of Pleading — The Fundamental Rule — The General

Rule — An Issue necessarily formed by the working of the Rules. Rules descriptive of Pleadings — The Demurrer — The Traverse—

The Direct Traverse — The Indirect Traverse — The Confession

and Avoidance.

Rules foe Framing Pleadings 75

Of Pleadings in General 77

Rules applicable to framing all Pleadings. These Rules explained.

Rules applicable to framing the Declaration 90

These Rules explained.

Rules applicable to framing Pleadings, subsequent to the Declaration 99

These Rules explained.

New Assignment 118

Its nature and the practice in regard to it.

Rules which make the Issue a Certain one 120

The import of these Rules explained.

Rules which make the Issue a Single one 133

The meaning of these Rules — The doctrine of different Counts in a Declaration discussed.

CONTENTS. 9

Judgment — how rendered 140

Repleader — its meaning 141

Abatement — The simplified practice in regard to it 142

Motions — The form in which they must be made 144

General Provisional Eules — to supply defects in the simplified

Pleadings 145

CHAPTER THIRD. Declarations 153

Pleas 163

Replications 1 71

New Assignment 172

Pleas in Abatement 173

Other Forms op Pleadings 174-82

OTRODUCTION.

Feom the earliest ages of Englisli history, as the yearbooks and the oldest law treatises show, the lawyers and judges of England gave especial attention to law procedure, and considered skill in special pleading as the highest professional attainment; and yet so difBcult was it to mould and develope the system of pleading so as to fit it for the exigencies of administrative justice, that pleading did not assume anything of the form of system, until the reign of Edward the First.; and was, even then, only to be found in the scattered precedents of adjudged cases. In the reign of Charles the Second, a collection of adjudged points in pleading, classed, without skill, in alphabetical order, was published under the title of Doctrina Placitandi. This extensive collection became the store-house from which pleaders procured precedents. Between the years 1772-77, chief Baron Comyns, in his Digest of the Laws of England, under the title, Pleader, gave, to the use of the Courts, a more systematic compilation of authorities upon the subject. This able digest of authorities on pleading, was a great advance beyond any previous work. Next, the critical genius of Mr. Sergeant Williams, in his masterly notes to his edition of Saunders' Eeports, elucidated the principles of pleading, and furnished an initial towards a scientific treatise upon the subject. Mr. Chitty, availing himself of the clear light of Mr. Sergeant Williams' notes, was, thereby, greatly assisted in constructing his elaborate and discriminating work, presenting the doctrines of pleading in a systematic form, which ■ was published in the year 1808. Next appeared the treatise of Mr. Stephen, which, starting from a higher scientific view of pleading, than that of Mr. Chitty, aimed at simplifying the system, while it lighted up its technical intricacies. The process of simplification had been begun centuries before, both by rules of the Courts, and by Acts of Parliament. Mr. Stephen only pointed more clearly to the import and scope of this effort on the part of Courts, but especially of Parliament, to free pleading from technical refinements, while, by his more accurate analysis of the principles of the system, he showed more clearly, wherein lay its substantial merits. His book was a vindication of the excellence of the system, before the contentious criticism of a restless and searching public opinion. He brought out the system from its theoretical entanglements ; and showed what it is in substance, and what it is in form; thereby conducting to a simpler and more enlightened practice.

In considering the system of pleading, we must distinguishbetween the rules which are essential, permanent, and substantial, constituting the foundation of the well-weighed policy of special pleading, which has stood the test of ages, as the most efficacious instrument for enabling the jury to discharge their peculiar functions ; and other rules of a more arbitary, technical, and artificial kind, which are founded on no great principle of judicial policy ; but have been invented only as auxiliary in framing and preserving the other more substantial rules. This latter class of rules, which are only intended as auxiliary and corrective, have, frequently, in practice, been grievously abused by being applied to unessential defects in the form of pleadings, thereby determining causes, not upon the merit of rights, but upon the technical accuracy of the manner of stating them. The system of special pleading could never have been built up, without these technical rules requiring the strictest accuracy of statement. Because, there is no medium between accuracy and inaccuracy ; and consequently, as long as the system was being formed and adapted to the manifold and multiform combinations of facts, which constitute causes of action and defences, no laxity of statement could be allowed without danger of falling into the greatest looseness and prolixity. But after tlie system is formed, and what is substantial, and what incidental and formal only, can be clearly discriminated, it is advantageous to strip off the technicality which has now become only an encumbrance to its practical efficiency. This has been doing for centuries ; while the system itself, as an offshoot of the trial by jury, and indispensable to its efficiency, has been preserved by the sternest will of the judicial and legislative powers of the British government.

There are two modes by which the abusive application of these more technical rules have been practised in the trial of causes : 1. By demurrer : 2. By motion in arrest of judgment. The remedies for the evil, have therefore been, from time to time directed, in so limiting the scope of the demurrer, as to diminish its abuse ; and of lessening the defects that could be reached by motion in arrest of judgment. Blackstone in speaking of the earlier and the later practice, says : " After verdict and judgment upon the merits, they were frequently reversed for slips of the pen or mis-spellings ; and justice was perpetually intangled in a net of mere technical jargon. The legislature hath therefore been forced to interpose by no less than twelve statutes, to remedy these opprobrious niceties ; and its endeavours have been of late, so well seconded by judges of a more liberal cast, that this unseemly degree of strictness is almost entirely eradicated." The statutes, alluded to by Blackstone, commence in the reign of Edward the Third, and come down to George the First. Some of these statutes make the verdict cure many defects which before could have been taken advantage of by motion in arrest of judgment ; and others of the statutes so limit the scope of the demurrer, that unless the defects be specifically stated in the demurrer, they could not be made available. These statutes greatly relieved the system from its technical entanglements. And if we compare the system of pleading, as set forth in the work of Mr. Stephen, with what it was just before each of these statutes was passed, we will find that as the system was developed by the Courts and the bar, it was, from time to time, simplified by these statutes, until it had, by the rules and the practice of Courts in accordance with the requirements of these statutes, attained to the completeness and excellence pointed out by Mr. Stephen.

But never was it eyen thought of by the judicial or legislative mind, to abolish the system itself of special pleading. In the reign of Elizabeth, the national opinion of special pleading is well expressed, by Sir Thomas Smith, in his Commonwealth df England. " Having seen, (says he,) both in France and in other places, many devices, edicts and ordinances how to abridge process, and to find how that long suits in law might be made shorter, I have not perceived nor read, as yet, so wise, so just, and so well devised a mean found out as this, by any man among us in Europe. Truth it is, that when this fashion hath not been used, and those to whom it is new, it will not be so easily understood, and therefore they may, peradventure, be of contrary judgment ; but the more they do weigh and consider it, the more reasonable they shall find it." This high estimate of special pleading has always been, and continues to be, entertained by the English nation, as represented in their Courts, and in their Parliament, and by their best writers upon judicial polity.

These opinions and sentiments of the English nation were brought to Maryland with the institutions to which they pertain. The Maryland legislature, as early as the year, 1763, passed an act directing the Courts of law to give judgment according to the merits of causes, without any regard to such defects in the pleadings as had been matters of special demurrer. This was a step in the simplification of pleading, beyond what had been done in England ; yet . it was only a step in the same direction, being merely the abolition of those technicalities, which, by the statutes of Elizabeth and of Anne, were to be disregarded by the Courts, unless objected to by special demurrer. The phraseology of the act is borrowed from these British statutes, omitting the clause which leaves the defects Still obnoxious to special demurrer.

In the year 1785, the legislature passed another act, allowing " amendments to be made in all proceedings whatever before verdict, so as to bring the merits of the question between the parties fairly to trial." In the year 1809, another act was passed, making the verdict cure all formal defects in both writs and pleadings.

The reform convention, in the year 1851, introduced into the constitution, which they framed for Maryland, a clause requiring the legislature, at their first session thereafter, to appoint commissioners to simplify the Pleadings and Practice in the Courts of the State. In accordance with this provision, the legislature, at the session of 1852, appointed the commissioners ; and also passed an act going so far as to authorise the original writ or summons to "be amended from one form of action to another, .when the ends of justice require it." This act, and all those which preceded it, are a progress in the same direction of the British statutes mentioned above, and with them show towards what end, law reform was, and had been long, striving. It was endeavoring to rid law procedure of the technical niceties which spring out of forms of action. For in truth, it is, out of forms of action, that most of those formal niceties spring, the omission of which in pleadings was ground for general demurrer in the earlier practice, and afterwards, under the statutes of Elizabeth and of Anne, of special demurrer. Now, the simplification, which it is the purpose of the following treatise to expound, is only a further step in this great reform, which has been progressing slowly, in a true conservative spirit, for centuries. Forms of action are abolished ; and thereby, law procedure, and especially pleading, is released from the fetters which all the British statutes, and the Maryland acts of amendment, have, from time to time, been relaxing and loosening. Instead of having the difficulties, if not impossibilities, of changing one form of action to another as allowed by the act of 1852, all that is now necessary to enable a plaintiff to make his pleadings conform to the justice of his case, is to amend his declaration by simply adding to it one or more counts, as will be seen in the treatise following.

There is, therefore, no new or radical reform ushered in. The simplification is only what the experience of centuries has. as it were, commanded to be done. It is but one more step up the path of judicial reform. A reform exactly parallel has been effected in England, abolishing forms of action, and simplifying pleadings. Maryland is, therefore, trying no mere experiment; but is acting upon the experience of centuries accommodated to the exigencies of the present times.

\uius to an %tih\\.

When application is made to a lawyer, for Ms professional advice, the question arises, wlietlier the right claimed or redress sought, if any, be in one person or more than one. If it "be in one, the action, if brought, must be in the name of that person alone ; but, if it be in more than one, the action must be in the names of all. So, on the other hand, if the obligation or liability be upon one person only, the action must be brought against that person alone ; but if it be upon more than one person, the action must be brought against all the persons bound or liable ; and if the obligation or liability be both joint and several, it may be sued either way. Hence springs up the doctrine of the joinder of parties. Plaintiffs, and Defendants, as the persons suing and sued are respectively called. But the doctrine of parties to an action does not, in strictness, belong to Pleading; and therefore, does not fall within the scope of this treatise. I refer the reader to the first chapter of the first volume of Chitty on Pleading, where the law of parties to an action is treated with great discrimination, great fulness, and a learned reference to authorities.

PROCEDURE AND PLEADING.