Preface
THE principles of common-law pleading as they came into our law are worthy of special study. They constitute a subject of interest and importance alike to the lawyer who practices under a modern code system, and to him whose professional activity lies in some State where the old forms, though modified somewhat it may be by occasional statutory enactment or progressive court decision, still prevail.
No code has been able to abolish the principles of common-law pleading because they form the foundation upon which every code must build its own system. A code may call things by different names — as complaint for declaration, answer for plea — but the things remain the same, and, what is more to the point, the purpose for which the thing is used remains the same. Hence to know how to best make the thing serve its purpose one may still study with profit its origin and its use in the cases recorded in the home of its origin.
It is- in fact the same with Pleading as with other subjects. Our whole system of law is the embodiment of the principles of the common law as found in the cases, and to the cases we must ever turn for light either as a direct aid to the administration of justice or as a means of understanding and applying some statutory restatement of principles first established by the courts.
iii
670424
IV PREFACE.
Such enactment has perhaps ambitiously sought to simplify a principle of law by encasing it in exact language, but alas, has only succeeded in adding to the labor of application the task of interpretation, thus increasing the chance of error.
In a democracy such as ours the people are the source of the law, which evolves through the slow process of the decisions of courts and the more rapid process of the enactments of legislatures. When such enactments are confined to the prescribing of new, or the modifying of old rules relating to property or persons, they record and reflect the current state of society and thus serve a very useful purpose; but when they attempt to crystallize into a set form all existing rules governing property and person they merely complicate the situation, to the consternation of the lawyer who now finds himself removed one step further from the enlightening sources of the law and is compelled to take his light, as it were, from the original sources through a statutory screen, not always, be it said, of the clearest transmitting material.
From the earliest beginnings down to the time when our several States, with their separate and differing judicial systems, began to adapt and fit the common law to their respective needs we may study the system of pleading in its development through the cases and the English statutes, with the feeling that our knowledge thus acquired will be an asset of value in any jurisdiction.
To such study the student must add, in order to complete his equipment, a further study of cases and
PREFACE. V
statutes in the particular jurisdiction where he intends to practice.
It is not the aim of this treatise to carry the student beyond an understanding of the main principles of common-law pleading as they came to us in the beginning, and, except by way of illustration where original principles have been reasserted by modern decisions, little reference is made to modern cases.
The subject of common-law pleading has been treated fully, and in great detail, by Chitty. Other text writers, chief among them Stephen, have treated it less in detail, but more clearly. The works of all of these writers, however, are characterized by a greater fulness than is necessary, or even convenient, for the purposes of the student who expects to practice in this country. What seems to be required is a summary of the main principles of the subject — the principles whose influence is still felt in the various systems of pleading which prevail in the different States, without the mass of technical and local rules which encumbered the old English system. It is this need which the present work is intended, in some small measure, to meet.
The late Professor Ames, of the Harvard Law School, prepared, some years ago, a collection of cases upon the subject, which has been and is used in many Law Schools with satisfactory results. The selection and arrangement of the cases by Professor Ames has been so judicious and effective, and the use of a book, such as his collection of cases, so desirable in connection with a text-book, that I have, in the order of treatment of the principles covered by his cases, followed
VI PEEFACE.
in the main his arrangement and adopted the cases selected by him as illustrations. This matter is contained in Part II.
Part I. contains a brief explanation of the different forms of actions, to which the principles set forth in Part II. mainly relate. I know, in my own case, some explanation of this nature would have been a great help to a proper understanding of the cases. If the explanation given shall prove of assistance to any one else, it will have accomplished its purpose.
In conclusion, I wish to say that the present work is put forth only as a guide to the main principles of the subject of civil pleading and a help to the understanding of the cases which illustrate those principles, and in no sense as a complete treatise on the subject. Illustrations taken from the cases have been used to show the application of the principles set forth, and have been referenced for convenience both to Ames' Cases, where contained therein, and to the original reports.
JOHN JAY McKELVEY.
NEW YOBK, Aug. 1, 1917.
Contents
PAET I.
FORMS OP ACTIONS AND DECLAEATIONS.
Chapter I. Intboductoby
§§ 1-15 Pages MO
1. Meaning of word Pleadings. — 2. Familiarity with forms of action necessary. — 3. How form of action determined. — 4 Sufficiency of declaration. — 5. Aim of Part I. — 6. Study of cases essential. — 7. Origin of forms of action. — 8. Names of different forms. — 9. Principle upon which recovery based. — 10. Real, personal, and mixed actions. — 11. Office of declaration.— 12. Technical rules. — 13. Example of declaration.— 14. Profert and oyer. — 15. Pledges.
Section I. — In Genebal
16. Distinction between two classes of actions. — 17. Debt. — 18. Covenant. — 19. Detinue. — 20. Assumpsit, special and general.
Section II. — Debt
21. Theory of action of Debt. — 22. Necessary allegations in declaration. — 23. Debt a broad action. — 24. Debt on Simple Contract. — 25. Debt on Special-
(vii)
Vlll CONTENTS.
ties. — 26. Debt on Records. — 27. Debt on Statutes.— 28. Statement of breach.
Section III. — Tboveb
52. Nature of the action. — 53. As originally used. — 54 Subsequent extension of the action. — 55. Rule as to demand and refusal. — 56. Action as finally extended. — 57. Real nature of wrongful acts redressed by this action. — 58. Necessary allegations in declaration. — 59. As to allegation of demand and refusal.
Section IV. — Replevin
60. Distress the successor of forfeiture. — 61. Replevin as a remedy for illegal distress. — 62. Real purpose of the action. — 63. Replevin in its early form. — 64. The proceedings for specific recovery. — 65. The subsequent action. — 66. Proceeding by writ abandoned.— 67. True distinction between Replevin in the detinuit and detinet. — 68. Disappearance of Replevin in the detinet. — 69. Impression that there were two forms of Replevin wrong. — 70. No action of Replevin for damages only. — 71. Nature of Avowry and Cognizance. — 72. Extension of the action. — 73. Advantage of Replevin over Detinue. — 74. Failure of attempt to make Replevin coextensive with Trover. — 75. Form of declaration. — 76. Necessary allegations in declaration. — 77. Allegation of place of seizure. — 78. Necessary allegations in Avowry or Cognizance. — 79. Example of declaration.
X CONTENTS.
Section V. — Case
80. Origin of action in Statute. — 81. Action before the statute. — 82. Separation of Assumpsit and Trover. — 83. What the action includes. — 84 Necessary allegations in declaration where action for injury to person.— 85. Where for injury to property.
Section VI. — Ejectment
86. Origin of action. — 87. How question of title involved.— 88. Early use of action to try title. — 89. Development of action for this purpose. — 90. Rule invented by Rolle. — 91. Necessary allegations in declaration.
PAKT II.
PLEADINGS SUBSEQUENT TO THE DECLARATION.
Chapter I. Demurrers
92. Names of pleadings subsequent to declaration. —
93. Two methods of answering the declaration. —
94. Nature of the demurrer. — 95. Effect of the demurrer.— 96. Nature and effect of plea. — 97. Demurrer; when used; form. — 98. Joinder in demurrer.— 99. Only one form of demurrer originally. — 100. Origin of special demurrer. — 101. Demurrer to Evidence. — 102. Judgment final on demurrer. — 103. Exception to this rule. — 104. A demurrer not a plea.
Section I. — General Demurrers
105. Early effect of general demurrer; illustration. — 106. Effect of general demurrer after statute, as to
CONTENTS. XI
declaration. — 107. As to subsequent pleadings. — 108. Matters of form not called in question. — 100. Except in pleas in abatement; illustration. — 110. As to demurrer as an admission; illustration. — 111. Not an admission of an impossibility ; illustration. — 112. Distinction; illustration. — 113. Nor of a conclusion of law; illustrations. — 114. Nor of immaterial matters; illustration. — 115. Not an admission for all purposes; illustrations.
Section II. — Special Demurrers
116. Special demurrer under statute and at common law. — 117. Only questions: matters of form stated in the demurrer; illustrations. — 118. Includes a general demurrer; illustrations. — 119. Special demurrer at present time.
Section III. — Effect Of Demurrer In Opening The Record
120. Effect in opening record; illustrations. — 121. Pleadings examined only for defects in substance; illustration. — 122. Meaning of " record " ; illustration.— 123. Where two separate records; illustration.— 124. Exception to rule; illustration. — 125. Party must get judgment on his own pleadings; illustration. — 126. Where a discontinuance; illustration.
Chapter II. Dilatory Pleas
127 Defects not appearing on face of declaration. — 128. Dilatory plea the method of bringing them before court. — 129. Must be used at once. — 130. Classification of dilatory pleas. — 131. Plea to jurisdiction.— 132. Plea in suspension. — 133. Plea in abatement— 134. Affidavit of truth. — 135. How dilatory plea differed from demurrer. — 136. Dilatory plea
Xll CONTENTS.
widely used at common law. — 137. Further classification.— 138. Common pleas in abatement. — 139. Rule as to pleas in abatement. — 140. Example of plea in abatement.
Chapter III. Pleas By Way Of Confession And Avoidance
141. Pleas in bar. — 142. Pleas by way of confession and avoidance. — 143. Example. — 144. Verification. — 145. Express confession at first required; illustration.— 146. Later, not required; illustration. — 147. At present time. — 148. Two classes of pleas.
Section I. — Pleas In Dischabge
149. Nature of plea in discharge. — 150. Common forms of.
Section II. — Pleas In Excuse
151. Nature of plea in excuse. — 152. Differs in different actions. — 153. In general, admits substance of declaration.
(a). Special Assumpsit.
154. What admitted in special assumpsit by plea in excuse. — 155. Collateral agreement may be set up by plea in excuse; illustration. — 156. But not a part of the agreement itself; illustration. — 157. Nor a condition; illustration. — 158. Nor lack of consideration ; illustration.
(6). General Assumpsit.
159. What admitted in general assumpsit by plea in excuse. — 160. Cannot deny debt by plea in excuse;
CONTENTS. Xlll
illustration. — 161. Nor set up credit not expired. — 162. Nor set up a special contract.
(c). Debt.
163. What admitted in debt by plea in excuse. — 164. What can be set up. — 165. Difference between debt and general assumpsit, as to plea of credit not expired.
( d ) . Trespass.
166. What admitted in trespass for injury to the person by plea in excuse. — 167. In trespass for injury to property. — 168. Plea of son assault demesne; illustration.— 169. Plea of ownership. — 170. Plea of liberum tenementum. — 171. Cannot plead in excuse that act involuntary. — 172. Nor that defendant had no physical control over act; illustration. — 173. Where several acts of trespass are alleged; illustration.
(e). Trover.
174. No plea in excuse in trover; illustration. — 175 Nature of matters in defense; illustration. — 176. Plea in discharge in trover.
(/) . Detinue.
177. What admitted by plea in excuse in detinue. — 178. Lien must be pleaded in excuse. — 179. But not an offer to give the goods up.
(g) . Replevin. § 180. Plea in excuse in replevin Page 119
181. Plea in excuse seldom used in case. — 182. Usual
XIV CONTENTS.
matters of defense. — 183. Truth, how pleaded in case for libel. — 184. What not good plea in excuse; illustration. — 185. Reasonable cause, how pleaded in case for malicious prosecution; illustration. — 186. Contributory negligence, how pleaded in case for negligence; illustration. — 187. Other matters not proper in excuse; illustration. \
(g). Ejectment.
§ 188. No room for plea in excuse Page 124
Chapter IV. Pleas By Way Of Traverse
SECTION I. — GENERAL REQUISITES.
189. Nature of traverse. — 190. Usually negative in form. — 191. Must not be argumentative. — 192. Must always tender issue. — 193. If not demurred to, issue must be joined. — 194. Conclusion of law cannot be traversed; illustrations. — 195. Nor immaterial matter; illustrations. — 196. Immaterial matter will not turn good plea in excuse into bad traverse; illustrations. — 197. Where immaterial matter mingled with material, both may be traversed; illustration.— 198. Traverse must not be too broad; illustrations. — 199. Matter implied in a pleading may be traversed.
SECTION II. — CLASSIFICATION OF TRAVERSES. § 200. Different classes of traverses Pages 132-133
SECTION III. — GENERAL ISSUE AND SPECIFIC TRAVERSES. § 201. Nature of, and distinction between Pages 133-134
(a). Special Assumpsit.
202. General issue, non assumpsit. — 203. Effect of now
CONTENTS. XV
assumpsit. — 204. Puts in issue material averments only. — 205. May show omission of conditions ; illustrations.— 206. Does not deny breach; illustration. — 207. Specific traverses; illustration.
(Z>). General Assumpsit.
208. General issue; non assumpsit. — 209. What may be shown under non assumpsit; illustrations. — 210. Specific traverse.
(c). Debt.
211. General issue; nil debet, nunquam indebitatus; illustration. — 212. Breach cannot be traversed.
(d). Trespass.
213. General issue, not guilty. — 214. What may be shown under not guilty; illustrations. — 215. What cannot be shown; illustration. — 216. Specific traverse in trespass for injury to person. — 217. In trespass for injury to property; illustrations. — 218. In trespass for injury to servant; illustration.
(e). Trover.
219. General issue, not guilty; its effect; illustrations. — 220. What not guilty does not deny; illustration. — 221. Specific traverse, not possessed. — 222. Lien may be shown under not possessed; illustration. — 223. What not possessed does not deny; illustration.— 224. When both pleas necessary; illustration. — 225. When not necessary.
(/). Detinue.
226. General issue, non detinet; its effect; illustration. — 227. Specific traverse, not possessed; its effect; illustrations.
XVI CONTENTS.
(g). Replevin.
228. General issue, non cepit; its effect; illustration. — 229. Place of taking. — 230. Plea of rien en arrere; illustration. — 231. Specific traverses to declaration little used. — 232. Common to avowry.
(h). Case.
233. General issue, not guilty; its effect; illustration. — 234. What may be shown under not guilty. — 235. Matters forming the inducement not put in issue; illustration. — 236. Scienter put in issue ; illustration.— 237. In case for deceit; illustration. — 238. In case for libel; illustration. — 239. In case for nuisance; illustration. — 240. Specific traverses in case; illustration. — 241. Effect of immaterial allegations on not guilty; illustration. — 242. Specific traverse in case for malicious prosecution.
Section IV. — Special Tbavebses
243. Object and parts of special traverse. — 244. Inducement.— 245. Absque hoc clause; illustration. — 246. Conclusion of special traverse. — 247. Cannot be pleaded to if good; illustration. — 248. When inducement may be pleaded to; illustration. — 249. When bad in form; illustration. — 250. Ditto. — 251. •when absque hoc clause bad in form. — 252. Rules. — 253. Special traverse not a substitute for general issue; illustration. — 254. Nor for rien en arrere.
Section V. — Replication De Injuria
255. Nature and origin. — 256. In what forms of action used ; illustrations. — 257. When cannot be used ; illustrations. — 258. Will not put in issue immaterial matter; illustrations. — 259. Not available where
CONTENTS. XV11
plea amounts to a traverse; illustrations. — 260. Nor where the plea contains a set-off; illustration. — 261. May be used to a part of plea where other part admitted ; illustration.
Chapter V. Duplicity
262. Rule against duplicity; illustrations. — 263. Has no exception; Dame Audley's Case. — 264. Apparent exception; illustration. — 265. Duplicity a formal defect; illustration. — 266. Surplusage will not make pleading double; illustrations. — 267. Pleading double though matter ill pleaded; illustration. — 268. When replication double. — 269. When replication de injuria not double; illustration.
Chapter VI. Departure
270. Rule against departure; illustrations. — 271. Taken advantage of by general demurrer. — 272. Ditto. — 273. When replication a departure ; illustration. — 274. Ditto. — 275. When not a departure; illustration. — 276. Ditto. — 277. Departure from immaterial averment.
Chapter VII. New Assignment
278. Rule as to new assignment. — 279. Only used by plaintiff. — 280. Not an admission of facts in plea; illustration. — 281. When plaintiff cannot new assign; illustration. — 282. Ditto. — 283. When may both plead and new assign; illustration. — 284. Ditto. —
285. Effect of failure to new assign ; illustration. —
286. Ditto. — 287. Monkman v. Shepherdson.
XV111 CONTENTS.
Section I. — Abrest Of Judgment
288. Motion in arrest of judgment; illustration. — 289. Defect cured by answering pleading. — 290. Motion not granted for defect in form. — 291. When motion will not be granted. — 292. Ditto. — 293. In action of debt on a bond.
Section II. — Non-obstante Vebedicto
294. Nature of motion for judgment non-obstante veredicto. — 295. Motion available to either party.— 296. Reason of motion; illustration. — 297. Original scope of motion; illustration. — 298. To what cases extended; illustration. — 299. Ditto. — 300. Limitation of motion.
Section III. — Repleadeb
301. Motion for repleader when granted; illustration. — 302. When not granted. — 303. Ditto.— 304. No real occasion for repleader.
GASES CITED.
Aldredge v. Wood, 93.
Anonymous, 84.
Anonymous, 88.
Anonymous, 157.
Anonymous, 159.
Anonymous, 166.
Anonymous, 172.
Anonymous, 191.
Agar v. Lisle, 40.
91.
Austin V. Moore, 182.
B
Baldwin v. Cole, 43.
Barber v. Vincent, 78.
Barrett v. Barrett, 159.
Barrett v. Fletcher, 187.
Bartlett v. Wells, 175.
Beckham v. Knight, 154.
Bedingfreed v. Onslow, 36.
Bennett V. Filkins, 155.
Bridgewater v. Bythway, 128.
Co., 123.
Brine v. Great Western Ry.
Brikhed v. Wilson, 14.
Brind v. Dale, 108, 135.
Brooke v. Brooke, 185.
Brooks v. Stewart, 105.
Broomfield v. Smith, 138.
Brotherton v. Wood, 60.
Burser v. Martin, 35.
Bussey v. Barnett, 138> 139.
Calverac v. Pinkero, 70.
Chancellor of Oxford's Case, 40 Chance v. Weeden, 161.
Claflinu. Baere, 111.
Clements v. Flight, 117, 146.
Cocker v. Compton, 182.
Cohen v. Home Ins. Co., 165.
Colburne v. Stockdale, 131.
Cole v. Hawkins, 177.
Cole v. Maunder, 79.
Cope v. Lewyn, 10.
Cotton v. Browne, 122.
Couling v. Coxe, 190.
Crogate's Case, 162, 164.
Crouch v. London & N. W. Ry.
Co., 124.
D
Dale v. Vale, 76.
Dalston v. Janson, 20.
Dame Audley's Case, 167.
Dannet v. Collingdell, 35.
Davies v. Penton, 90.
De Pinna v. Pol-hill, 137.
(xix)
XX
CASES CITED.
De St. Aubin v. Guenther, 129.
Dover v. Rawlings, 147.
Dorrington v. Carter, 117, 144.
Duke of Rutland v. Bagshawe, 190.
E
Earl of Manchester v. Vale, 115.
Eavestaff v. Russell, 106.
Ellet v. Pullen, 182.
Erskine v. Townsend, 10.
Everard v. Hopkins, 26.
P
Filliene v. Armstrong, 189.
Fisher v. Wood, 164.
Fletcher v. Wilkins, 48, 52.
Frankum v. Earl of Falmouth,
Freeman v. Crafts, 182.
Fortescue v. Holt, 155.
Foshay v. Riche, 127.
Fursden v. Weeks, 162.
G
Gaile v. Betts, 168.
Galway v. Rose, 166.
Gardner v. Alexander, 138.
Gibbons v. Pepper, 115, 140.
Gilbert v. Parker, 132.
Goodburne v. Bowman, 189.
Goodchild v. Pledge, 19, 103,
105, 139.
Goram v. Sweeting, 131.
Gordon v. Ellis, 186, 194.
Gould v. Lasbury, 104, 106.
Grills v. Mannell, 127.
H
Haiton v. Jeffreys, 70, 74, 75.
Hancocke v. Prowd, 10, 15.
Harrison v. Cotgreave, 167.
Hastrop v. Hastings, 91.
Hayselden v. Staff, 110, 138.
Heard v. Baskerville, 85.
Heath v. Milward, 141.
Hill v. Wright, 148.
Hodges v. Steward, 80.
Holcroft v. French, 25.
Holmes v. Seely, 37.
Horn v. Lewis, 160.
Horner v. Ashford, 23.
Huddart v. Rigby, 183.
Huish v. Phillips, 157.
Humphreys v. Bethily, 169.
In re Wilsons, 55.
Isaac v. Farrar, 161.
Isaak v. Clark, 40.
Ivo de Stokes v. Richard Trint, 14.
Jevens V. Harridge, 14.
Jones V. Brown, 38.
Jones v. Chapman, 141.
J. S. of Dale v. J. S. of Vale, 76
K
Kempe c. Crews, 192.
Kettle V. Bromsall, 12, 20.
King V. Rotham, 84.
Kinneyside V. Thornton, 60.
Knapp v. Salsbury, 140.
Lacy v. Reynolds, 188.
Lambert v. Taylor, 189.
Lane r. Alexander, 128.
Lane v. Tewson, 118, 137.
CASES CITED.
XXI
Latham t?. Rutley, 136.
Leach v. Thomas, 186.
Legg v. Evans, 177.
Lewis v. Alcock, 152.
Lillie v. Price, 151.
Livingston v. Rogers, 184.
Loweth v. Smith, 179, 181.
Lyall v. Higgins, 109, 134.
Me McPherson f. Daniels, 121.
M
Maltravers f. Tuberville, 20.
Marsh v. Bulteel, 92.
Martin t. Kesterton, 178.
Mason v. Farnell, 118.
Mayor v. Richardson, 157.
Mennie t'. Blake, 55.
Metzner v. Bolton, 136.
Miflard f. Baldwin, 81.
Millard v. Caffin, 48.
Mole v. Wallis, 176.
Monkman v. Shepherdson, 183.
Monprivatt f. Smith, 181.
Moore f. Jones, 23.
Morgan »• Pebrer, 111.
N
Nash v. Breeze, 109.
Niblet v. Smith, 173.
Nichols v. Raynbred, 27.
Norman v. Westcombe, 179.
Norton v. Scholefield, 152.
O
O'Brien v. Saxon, 163.
Omalley v. 111. Publishing and
Printing Co., 151.
Owen f. Knight, 144.
Owen v. Reynolds, 177.
Palmer v. Elkins, 158.
Palmer v. Tuttle, 182.
Patterson f . Clark, 141.
Paxton v. Male, 61.
Pearson v. Roberts, 47.
Penn v. Ward, 163.
Penno v. Bennett, 164.
Perring v. Harris, 149.
Petre v. Duke, 51.
Piggot's Case, 87.
Pilgrim v. Southampton, etc.,
Postlethwaite v. Parkes, 38.
Potter v. North, 59.
Prettyman v. Lawrence, 180.
Pullen v. Seaboard Trading
R
Rathbone v. Rathbone, 170.
Rex v. Knollys, 81.
Rex v. Phillips, 192.
Reynolds v. Blackburn, 171.
Richards V. Frankum, 146.
Richards v. Hodges, 173.
Robinson V. Rayley, 169.
Rogers v. Custance, 181.
Russell's Case, 127.
S
Salter f. Parchell, 164.
Saunders v. Crawley, 166, 168.
Scheeline f. Mosher, 99.
Scovill v. Seeley, 82.
Selby v. Bardons, 161.
Sergeant v. Fairfax, 191.
Shephard V. Shephard, 170.
Sieveking v. Dutton. 109, 134.
Sir Francis Leke's Case, 130.
Sir Ralph Bovy's Case, 130.
xxii
CASES CITED.
Slocombe v. Lyall, 141.
Smart v. Hyde, 107, 135.
Smith v. Parsons, 136, 137.
Spencer v. Bemis, 179.
Spencer V. Dawson, 151.
Squires v. Seward, 141.
Staple V. Heydon, 191.
State of Maine v. Peck, 74, 85.
Stephens v. Underwood, 170.
Stinstm v. Gardiner, 83.
Tavernour v. Little, 153.
Taylor V. Markham, 163.
Taylor V. Smith, 180.
Thomas 0. Morgan, 150.
Thorn v. Shering, 156.
Tippet V. May, 93.
Tobey v. Webster, 37.
Tompkins v. Ashby, 83.
Torrence v. Gibbons, 142.
Tresham v. Ford, 80.
Trevilian v. Pyne, 53.
Tryon v. Carter, 192.
V
Vaux v. Mainwaring, 16.
Vere v. Smith, 176.
W
Walden v. Holman, 75, 77.
Walker v. Jones, 128.
Watkins v. Lee, 153.
Wheedon v. Timbrell, 38.
White v. Bodinam, 132.
White v. Teale, 144.
WTilson V. Hobday, 13.
Wilson v. Palmer, 97.
Winchelsea v. Higden, 173.
Winn v. White, 135.
Wise v. Hodsall, 104, 113, 114 Witts v. Polehampton, 191.
Y
Young V. Cooper, 116, 143.
PRINCIPLES OF COMMON-LAW PLEADING.
Chapter I. Introductory
§ !• The word Pleadings in a broad sense and as used at the present time applies to the statements, written or oral, by which the parties to an action formally present the case to the court for trial.1
§ 2. The principles of pleading are the rules which, in the development of the law of procedure in actions, have become established with reference to the form in which the parties shall state their respective versions of the matter in dispute between them, and with respect to the manner in which, and means by which, either party may take advantage of a failure on the part of the other to properly formulate his statements.
One may learn a rule of pleading, such as that a denial must not be made of an immaterial allegation,
1 As early as 1677 we find "Pleadings" defined as including the " count " or declaration as well as to the subsequent statements of the parties. — Euer, Doctrina Placitandi, Preface.
PRINCIPLES OF COMMON-LAW PLEADING.
but to apply the rule one must know what is an immaterial allegation. What is an immaterial allegation in one form of action may be a very material one in another.
Again, one may be told that there is no room for a plea in excuse in the action of trover, but to understand this rule one must know something about the form of action known as trover, as distinguished from trespass, or some other form of action in which he is told that a plea in excuse may be used. A general knowledge of the nature of the different forms of action is, therefore, essential to a proper understanding of the principles of pleading.
§ 3. It is the plaintiff in the action who determines the form which the action shall take : he does it by the first pleading in the action, known as the declaration, a formal statement to the court of the facts upon which he deems he has the right to invoke the aid of the court against the defendant. He must take the responsibility of determining whether he has a cause of action, what relief he is entitled to, and what form of action will fit the case.
The proper determination of these questions is important to the plaintiff in drawing his declaration. A proper determination of the same questions is important to the defendant in deciding what steps to take in reference to the declaration. The declaration will be sufficient if it states a valid cause of action in the form which will give the plaintiff the relief to which the facts entitle him.
INTRODUCTORY. 3
§ 4. To determine whether or not the declaration in any given action, viewed in this light as a statement of the plaintiff's case, is sufficient, obviously requires something besides a knowledge of the principles of pleading. That something is a general knowledge of the rights and obligations of the individual as a member of civilized society subject to the common law, and of the different forms of action in which such rights and obligations are enforced. A study of the principles of pleading will not teach when a declaration is insufficient as a statement of the plaintiff's case, but only how to bring the matter before the court for action, if from his knowledge of substantive law the pleader has determined that the declaration is insufficient.
§ 5. It often happens that the student takes up the study of common-law pleading before he has become familiar with the different branches of substantive law and the various forms of action which have arisen under the common-law system. It is perhaps necessary that this should be so, inasmuch as some knowledge of the different pleadings and their offices is essential to a proper understanding of the cases which are the main sources of the substantive law. It is therefore with a view to helping the student to more readily grasp the principles which govern the decisions of the various questions of pleading arising in the reported cases, that an explanation of the different forms of action, and of the necessary allegations in the declarations of each, is here introduced. The aim has been to present the matter in the briefest form consistent with clearness. The subject of the declaration in each form of action has been taken up in connection with the explanation of such action, in preference to treating forms of action separately, as is usually done.
§ 6. One may justly inquire before entering upon a study of the several forms of common-law actions referred to, wherein a knowledge of the distinction between the several forms will aid in modern practice.
The answer is that whatever form for the statement of his position modern statutory regulations may have imposed upon the party who, as plaintiff or defendant, seeks the aid of the Courts, the principles underlying the relief to which he is entitled must often be sought directly in cases which have " wended their toilsome way through the Courts by means of the old common-law forms." And even when the principles involved have been restated in statutory law it is more than likely the old cases will be resorted to for the purpose determining the proper meaning or application of the statutory provisions. Hence as there can be no escape from a resort to the cases, it is clear that they will be better understood and interpreted if there be a familiarity with the different forms in which they were cast.
§ 7. The different forms of action were the outgrowth of the many and varied states of facts presented to courts by plaintiffs seeking redress against defendants. It became a convenience to designate similar causes of action — i. e., causes of action where the plaintiffs based their rights to relief upon the same theory — by the same name. The result was a number of classes of actions, each with its separate name and
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