dorttfU Ham ^rljonl ICihtaty Cornell University Library KF8870.E92P5 1886 Pleading in civil actions / 3 1924 020 178 475 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020178475 PLEADING IH CIVIL ACTIONS BT HUGH DAVEY EVAJSTS, LL.D. SECOND EDITION, ET WILLIAM MILLER, OF THE CHICAGO BAR. «> CHICAGO: E. B. MYERS & COMPAinr. 1886. Entered according to act of Congress, in the year 1879, By EUGENE B. MYERS, In the office of the Librarian of Congress. PREFACE TO SECOND EDITION. This book, as previously published, was neither arranged in chapters or sections, nor did it contain an index. The present edition retains all the origi- nal text, but re-arranged and divided into chapters and sections. An index has been added; also marginal notes and references to authorities; where may be found a fuller discussion of the doctrines stated. No cases have been cited, as it was not deemed expedient to enter upon such an endless field. The effort has been to improve the ar- rangement of the book, and to facilitate reference thereto, and at the same time not materially to in- crease its size. The work, such as I have made it, is subinitted to an indulgent professional public, in the hope that it may in some measure satisfy the inquiries and lighten the labors of the student, as weU as prove useful to the practitioner. William Millee. Chicago March, 1879. (iii) PREFACE TO FIRST EDITION. There is scarcely a phrase in the English lan- guage which has more completely passed into a by- word of contempt, than that of special pleading ; yet the persons who have devoted most time and labor to the examination of the system designated by that phrase, have bestowed upon it the highest eulogies. These opposite opinions of a science, en- tertained by the public and by its professors, are probably both, to a certain extent, correct. They owe their origin, like the opposite opinions as to the color of the shield, to the different points from which the subject is observed. Special pleading was intended to ascertain the controversy between litigants, and to refer that controversy to the proper tribunal. It was invented by men, doubtless of acute and powerful intellect, but trained in the cumbrous and barbarous learning of a barbarous age. Their invention partook of the character of their learning — of tlie character of their age. They often took a circuitous course to an object which might have been better attained by a direct one. Sometimes forms were introduced for no very good reason, and sometimes for a reason which in time ceased to exist. But when once introduced, they vi PREFACE. were continned for no other reason than that they existed. Those who devoted themselves to the study of pleading, were struck with admiration, of the pre- cision with which it produced its effects, and of the subtlety with which its means were generally adap- ted to their ends. Those who did not so devote themselves, saw only the cumbrous forms, and the contrivances introduced, as it seemed to them, solely to perplex the subject. They saw too, that the rules of pleading occasionally produced the decision of causes upon qiiestions, the connection of which with the merits of the case, they could not discern. They therefore, in the loose and general way in which men sometimes think, confounded special pleading with sophistry. Pei-haps the words are never used, out of a law book, in any other sense. Yet special pleading is the very opposite of sophistry. The object of sophistry is to confound ideas really different, and then by adroitly substitut- ing one of them for the other, to lead the hearer to an erroneous conclusion. The object of pleading is to prevent ideas from being confounded together, and thus to aid the inquirer in the pursuit of truth. Clearness of conception and accuracy of expression, are its essence. It has been, to a considerable extent, proscribed, still its ends must be attained in some mode. The mode most usually adopted, is to carry the whole case before a jury, and separate it into its elements by motions or prayers for the opinion of the court, PREFACE. vii as the questions of law arise on the evidence. But courts are not infallible, and civilized men have never been willing to trust their decisions without the check of a review. It is, therefore, necessary to provide some means of revising those opinions. The English lawyers, after their usual manner, de- vised a fictitious mode of attaining this end. But the diiferent form of the judiciary has, in a large part of this country, prevented its adoption. The object of revision is here attained by means of bills of exception. These prevent the entire merger of the opinions of the court, in an irreversi- ble verdict. But they do not effect that complete separation between the decisions of courts and juries, which would enable appellate courts to re- vise the onewitl^out meddling with the other. This induces a necessity of frequent trials. The prepa- ration of bills of exception, and the re-trials thus produced, take up much time, and contribute more than any single cause to the delay of justice in our courts of common law. They also degrade the trial by jury, by reducing jurymen to the condition of puppets in the hands of the court. To point out remedies for these evils, is the design of this work. The remedies proposed, are the reduction of pleading to its essence, clearness of conception and accuracy of expression, retaining just so much form as is necessary for an outwork to those qualities, and its universal employment as the means of attain- ing the object, for the attaining of which it was de- signed. "When it is reduced to a few principles, rill PREFACE clearly dedueible from the nature of things, there will be no sound reason why it should not be em- ployed. And if it can be made the means of accelera- ting the progress of litigation, and diminishing the burdens by which so many of onr corrrts are now weighed down, there will be great reason for its employment. Tlie writer, after much reflection, has come to the conclusion that such a reform is practi- cable, and that the system of pleading, thus im- proved, may be made the instrument of attaining this desirable object. His ideas he has endeavored to develop in this essay. Although the work is connected with the science of jurisprudence, it is not to be regarded as a mere law book, or as addressed exclusively to lawyers. The community at large have a very deep interest in the subject. Nor is there, in the principles brought forward, anything of more difficult acquire- ment, or more repulsive character, than in the prin- ciples of other sciences. A knowledge of the ends to be attained by pleading, of the means adopted to attain those ends, and their general eifect, can be attained with a moderate degree of labor. This knowledge it is the object of the present writer to impart. For that purpose he has composed this essay, which is directed to the intelligent commu- nity at large, and not solely to the members of the legal profession. Some pains have been taken to divest it of a technical character, and to render the subject intelligible to gentlemen whose minds are, for the first time, directed to such investigations. PREFACE. Ix The reader will not be surprised to find, that the legal positions are not supported by authorities. In works designed as manuals for the student, or as aids to the practitioner, authorities are indispen- sible. They enable the student to verify and to limit the doctrines of his author. They enable the practitioner to establish the position he has taken by the decisions of former tribunals. But this work is not designed for those purposes. The public at large, for whose use it is intended, will have neither leisure, inclination, nor means, for turning to au- thorities. The learned lawyer, who may take it up will, it is hoped, find in his own mind evidence of the soundness of the principles stated. The public attention is now invited to a subject which, although not of a striking or brilliant char- acter, will not be found to diminish in interest or importance upon a close investigation. It is con- fined, it is true, witliin narrowJimits, but its effects upon the general welfare of the community, are more extensive than those who have not considered the subject 'imagine. A system designed for the separation of complex qxiestions into simple points, necessarily deals in minute regulations and distinctions. For this rea- son, some gentlemen are disposed to pass by the whole subject with contempt. To such, the writer will quote the words of Bacon — " He who cannot contract the sight of his mind as well as dilate it, wants at great faculty." CONTENTS. PAOE> CHAPTER I. General view of Pleading 1 1 CHAPTER II. The various kinds of Pleadiugs 17 CHAPTER III Traverses 24 CHAPTER IV. Demurrers 50 CHAPTER V. Dilatory Pleas 55 CHAPTER VI. Qualities of Pleadings in General „. 57 CHAPTER TII. Actions - 75 CHAPTER VIII. Joinder of Counts. ...1 93 CHAPTER IX. Various Systems Contrasted 103 CHAPTER X. Objects and necessity of Judicial Altercation 143 (xi) xii CONTENTS. CHAPTER XI Reforms iu the Rules of Pleading .-. 193 CHAPTER XII. Principles applied to the several Pleadings 225 CHAPTER XIII. Analysis of Injuries and Declarations 264 CHAPTER XIV. Application of several principles to particular actions. . 277 CHAPTER XV.- Conclusion 309 PLEADING IN CIVIL ACTIONS. CHAPTEK I. GENERAL VIEW OF PLEADING. 1. A PHILOSOPHIC inquirer into the various sys- tems of Law, by which the nations of the earth are or have been governed, cannot fail to '^ ill 1 • 1 ilesemblance observe the strong resemblance which of systems ° of Law. they bear to each other. The domestic relations, and the dominion of man over external things, which we call property, are everywhere the same, or nearly the same. The eternal principles of justice, and the natural rules of interpretation, which operate upon the persons, the property, and the contracts of men, are everywhere the same. Hence arises a great sameness in the law of rights, strictly and absolutely considered. The difference between various systems of jurisprudence, so strik- ing on a superficial view, will, on examination, be found chiefly to consist in names, and in different modes of doing the same thing. Thus the incor- poreal hereditaments of the common, and the serv- m 2 EVANS ON PLEADING itudes of the civil law, are in substance the same, although called by different names. They are both rights enjoyed by one man in the property of another. Thus, too, in different countries, the same contract is authenticated by different cere- monies, yet it is still, substantially, the same con- tract. 2. It is not meant to assert, that the snbstance of the law of rights, is always and everywhere identical, but only that the chief difference between different codes, is in names and forms. Still less is it intended to maintain, that the forms of all systems are equally good. On the contrary, no man is more deeply impressed than the writer, with the opinion, that in form there is much importance; much possibility of good and of evil. 3. Some forms are mere arbitrary ceremonies, imposed because it is necessary to decide Form what. ^ . . "^ . between different modes of proceeding, or, perhaps, merely from caprice. Others are chosen, because they are adapted to circumstances, to the state of society, the manners and habits of the people among whom they exist. The change of circumstances frequently reduces this class of forms to like unimportance, with those first men- tioned. Both these classes are liable, by similar mutations, to be transferred to a third; that of forms positively unwholesome and injurious, because not adapted to circumstances. The writer presumes to think that there is a fourth class of forms, which owe their origin to their peculiar fitness to attain IN CIVIL ACTIONS. 3 certain ends. This fitness having its origin in the nature of things, must continue forever, and the form therefore continue important and beneficial, while the end is so, that is, if the end is naturally important and desirable, forever. An instance of this sort is the form of reducing important con- tracts to writing. 4. The professional reader will discover that the word form is not used in its technical, but in a more enlarged sense — in a sense in which the mode of doing anything, which may naturally be done in various ways, is regarded as a form — a sense in which the word form will include much that is usually classed with substance. 5. The foregoing remarks have been made with reference to what is technically called, the law of rights; including as well, rights themselves, as the modes of acquiring, transmitting and „ ^ . relinquishing them. They are equally ^w^,*!'?^ applicable to the doctrine of remedies. By the word remedies, is to be understood the means of redressing an injury sustained by one person at the hands of another. Now there is, naturally, but one conceivable means of doing this; by compelling the wrong-doer either to restore the party injured to his former situation, or to give to him some equivalent for his loss. There is but one means, compulsion, exerted in different modes* Compulsion implies force. The operation of pri- vate force, where law exists at all, is reduced to very narrow limits. The only remedy for wrongs known 4 EVANS ON PLEADING in jurisprudence, is an application to those entrusted with the direction of the public force, for their in- terference. The several modes of applying for this public interference; the modes resorted to, to ascer- tain its propriety, and the modes of actual inter- ference, when its propriety has been ascertained, are susceptible of great variety. The knowledge of those modes, constitutes what lawyers call the doc- trine or learning of remedies. This learning is altogether conversant in forms, in the enlarged sense in which we have explained the word. The forms of judicial altercation constitute, everywhere, one of its most prominent and important parts. By judicial altercation, is to be understood Judicial alter- n ■ t i . i n cation, the alternate alieffations and denials of what. . , . , , . , the parties m a judicial controversy. The common law, for reasons which will presently ap- pear, has subjected these to certain rules, which have grown up into an abstruse and intricate species of knowledge. A species of knowledge, which it has become the fashion to attack with all the weapons of ridicule and declamation, and which cannot be denied, in some of its parts, to lie extremely open to the use of those weapons. It embraces, like every other ancient and extensive system of forms, some of each of the classes above enumerated. Some of its forms were, perhaps, originally capriciously adopted, in a formal age. The mutations of times and manners, have rendered useless and absurd many that were once valuable. The necessary result is, that to a superficial observer, the general appear- IN CIVIL ACTIONS. 5 ance of the whole is somewhat ridiculous. Another misfortune of this system, is the irregular and capricious mode in which the attempts at improv- ing it have been conducted. These attempts have been made by judicial and legislative authority. Judges, fettered by the necessity of conforming to prior decisions, can produce, comparatively, little effect in the improvement of legal systems. Of legislators it is not disrespectful to say, that of this particular subject a majority are profoundly igno- rant. 6. Lawyers, and judges like other lawyers, are, in some degree, divided into two parties on the sub- ject of this system. Some men, pro- foundly versed in all the learning relating judicial to it, and it may be, sometimes, very lit- tle versed in any other, have looked upon all its forms as of equal value. Because the great princi- ples upon which those of most importance rest, are founded in eternal truth, they have trembled at inno- vations on forms, which either originally were or had become mere insignificant ceremonies. Other men, whose attention had been more drawn to other branches of their profession, and who have wanted leisure or inclination to become acquainted with this subject, have condemned the whole system in a mass, and endeavored, as much as they could, to free themselves from its weight. The rest of the pro- fession have been inclined toward one of the two parties, as circumstances induced them. Judges of the opposit,e parties have alternately ascended the 6' EVANS ON PLEADING bencli, and the bias of their minds has affected their decisions. Hence, some useless ceremonies have been retained and some valuable form proscribed or evaded. 1, Legislative interference with this saltxfect has been altogether on what is called the liberal side, but has, perhaps, not always been more judicious than that of the bench. It has been exerted in three modes. First, in abolishing nselesa forms; and in this respect there is no ground of complaint, ex- cept that others, equally useless, were not abolished at the same time. 8ecqnd, in providing that cer- tain steps in the progress of a cause should dispense with informalities that would have been formerly fatal ; and in this respect we can only complain that what has been done, has been done by piecemeal and at hazard, and not by rule, thereby adding somewhat to the difficulty of ascertaining what is the law. Lastly, by introducing and extending the privilege of amending the proceedings. The last class of altercation is, in some degree, to be deplored; since it has had the effect of prolonging litigations, and of loading our system of judicial altercation with the odium of a delay, which is really produced by a departure from its principles. 8. Notwithstanding all tiiis, the system seems to the writer, and has seemed to men with whose names it would be unpardonable vanity for him to connect his own, to contain much intrinsic excel- lence. To separate this from the ceremonies with which it is overlaid, must be the work^f the legis- IN CIVIL ACTIONS. 7 lature; but the majority of that body are too igno- rant of the subject to act usefully upon it, and too much occupied to seek for information in the pon- derous volumes in which only it is at present to be found. A general view of the subject in which the objects and uses of the system should be distinctly stated, the useful forms traced to their principles and the excresences pointed out, appeared likely, under these circumstances, to be useful. This is the task which the writer has undertaken. He pro- poses, first, to give a slight sketch of the system; then, briefly, to explain its terms and its leading principles; observe its operation; and, finally, by the aid of the light thus obtained, to inquire what parts of it may be dispensed with and what legisla- tive provisions may conduce to its improvement. 9. The object of judicial altercation is two-fold; first, to apprise the party of the accusation against him, or of the answer to the allegation he has made; secondly, to .ludiciai , ,, , i.i„. . 1 .J altercation. (o) apprise the tribunal whicrf is to decide the cause, of the true matter in controversy. These are its general objects under every system of law, but under the common law it has a third object — that of ascertaining the tribunal which is to decide the question. Where the right of deciding all mat- ters in controversy, of whatever nature is com- mitted to one tribunal, that tribunal may, with comparative safety, be left to collect the subject of {a) Stephens' Pleading, 134-136; Lawes' PI., 3; Tucker's PI., 1. 8 EVANS ON PLEADING controversy, from the allesjations of the parties, in any manner which it may choose to adopt. But it is the glorious peculiarity of the common law that it divides controversies into two species. Those which are technically called questions of law, relating to the rules by which moral agents are, or ought to be^ governed, it refers to the decision of men who are supposed to have made those rules their principal study. Questions of fact, that is, those which relate to the truth of the ma,tters alleged, and on which the rules of law are sought to be called into opera- tion, it refers to a tribunal taken indifferently from the ordinary classes of society. Under such a sys- tem of jurisprudence, the ascertainment of the sub- ject of dispute, which is the great object of judicial altercation, acquires a new importance since it acquires a new object; the ascertainment of the character of the dispute, and conseqxiently of the tribunal which is to decide. 10. It may be further remarked that the jury, or tribunal for deciding qnestions of fact, is indiscrimi- nately taken from every class of society, and, of course, includes many persons unused to debate and unskilled in the principles upon which controversies are decided. This renders a high degree of sim- plicity necessary in the questions proposed for their consideration. In order to obtain this degree of simplicity, it becomes necessary to reduce the con- troversy before it is submitted to them, to one, or at least to one or more integral propositions, into IN CIVIL ACTIONS. the truth or falsehood of which it becomes their dnty to inquire. 11. The means which the common law has adopted to attain the objects above alluded to, that is to say, to ascertain for the parties and for the tribunal, precisely what is the pleading, ,. . , what matter m controversy ; to reier it to tiie proper tribunal, and if that tribunal should be the jury, to give to the controversy the unity and sim- plicity requisite to enable that body to decide advantageously are peculiar. It compels the par- ties to frame the allegations which they respectively make in support of their demands or defenses, into certain writings called pleadings, agreeably to cer- tain rules. The knowledge of these rules consti- tutes the science of pleading. It may be well to remark here, what has been before hinted, that the leading rules of that science are in no degree arbi- trary, but are judicious applications of the general laws of argument, to the objects of the science of pleading. 12. The different modes of proceeding in the redress of wrongs, are known in the law as " actions," or more accurately as " forms of action," and may for our present purpose be / ■■ ' Actions what.(ft) advantageously divided into two classes, by a division well known in the law — formed actions and actions on the case. The first species are of the greatest antiquity; they are certain pre- scribed forms, adapted each to the redress of a par- (b) Stephens' Pleading, 5-76; 1 Tidd's Practice, 1-27; 1 Burrill's Practice. 5-38; 3 Kobinson's Practice, 358-482. 10 EVANS ON PLEADING ticular class of wrongs, and inapplicable to any other. The actions on the case are of more modern origin; they grew out of the discovery, that it was impossible for a finite intellect to foresee and pro- vide remedies for every possible species of wrong. An action on the case, then, is a proceeding in which the party is at liberty to state his own " case,'^ without being tied down to any prescribed form of words. The forms of pleading applicable to these two descriptions of actions are somewhat different, each partaking, in some degree, of the spirit of the age in which they were invented. The substance of the thing is, however, the same in both. This is the more remarkable as the change of the forms, in the action on the case, was manifestly an attempt to get rid of pleading altogether. 13. The formed actions present the best illustra- tion of the subject of our inquiry; the mode of pleading in them will be therefore first considered. Formed actions, ^^en the defendant in one of these (c) actions is brought into court, the first step which is to be taken is for the plaintiif to declare against him; that is, to state for what injury he has caused him to be brought there. This state- ment is called, in Latin, narratio; in Law French, coun', equal to the modern French contej and in old English, tale; all of which ^mean the same thing — in popular language, the plaintiff's story. In modern law language it is generally called the (c) Gould's Pleading, 14. § 3; Stephens' Pleading (Tyler) G4, 354, Ivi. IN CIVIL ACTIONS. 11 declaration. "When the declaration has been filed the defendant is called on for his answer. It is manifest that he must then either admit the plaintiiF's claim, or make a defense of one of fonr several characters. He may allege that the matters stated as injurious in the declaration, do not, as there stated, amount to an injury for which the law will afford redress. He may deny the truth of all the matters alleged. He may deny the truth of some of them, admitting the others, but implying a denial that they constitute, without those denied, a sufficient cause of action. Lastly, he may allege circumstances not mentioned in the declaration, as a justification of his conduct. The first course is called a demurrer, and the party is said to demur. In the second case, he is said to plead the general issue. In the third and fourth, to plead special pleas. It should be remarked, however, that the iirst sort of special pleas, those which deny a part of the declaration only, are for the most part theo- retical, it being always more advantageous to the defendant to deny the whole by pleading the general issue. Such pleas, although rare, do nevertheless exist in practice; thus when a widow claims her dower of her husband's estate, she must aver in her declaration, both her marriage and the property of her husband in the land in which she claims dower, and it is the usual course to deny one of those facts, admitting the other. 12 EVANS ON PLEADING 14. When the defendant has pleaded, the course of the plaintiff must be determined by the nature of the plea. If the defendant has demurred, the plain tiif must prepare to establish the validity of the legal doctrines on which he relies ; if he has pleaded the general issue, the truth of the facts alleged in the declaration. . If the defendant has pleaded a special plea of the first class, the plaintiff may either prove the truth of the matter denied, or in his turn demur: that is, in effect, suggest to the court that the other facts alleged in the declaration are sufficient to entitle him to recover, without the matters denied by the plea. In all the above cases, the matters in dispute, it will be seen, are ascer- tained, and referred to the proper tribunal, which must then proceed to decide, the objects of pleading being attained. If, however, the defendant has pleaded a special plea of the second class, suggest- ing new matter of defense, the pleadings are neces- sarily more voluminous. The plaintiff's situation would then seem to be the same as that of the defendant after tlie^ declaration was filed, and we might thence infer that he might proceed in any of the modes above pointed out for the defendant. For it will have been observed by the reader that, in the cases hitherto supposed, the party has been left legally at liberty to pursue any course which, in the nature of things, he could adopt if there were no regulations upon the subject. For it is obvious that, in the nature of things, a man who will engage in controversy must deny either the major or minor of IN CIVIL ACTIONS. 13 his adversary's syllogism, the matters alleged, or the law arising on those matters; or he must allege some additional circumstances, bearing upon the controversy, and kept out of sight by the opposite party. That if he denies the matters alleged, he must either deny the v^hole or some select portion of them. That when a denial has been made of that which has been previously alleged, whether the matters denied be of fact or law, the only fair answer to such denial is proof of the matters denied. There is, however, a rule which, even in the case of the defendant, and of his first pleading, in some slight degree restrains this natural lib- si„gienes8in erty. It is this: that if the defendant, Pi^^ding- waiving the general issue, pleads a special plea of the first class, he must confine himself to a denial of a single allegation; although, by the general issue, he might have denied all the matters stated in the declaration. This rule, which seems, at first sight, rather an extraordinary one, is, however, a branch of a more general rule of pleading, to which the permission of general issues is only an excep- tion. This rule is, that whenever a party denies the truth of his adversary's allegations, he must confine himself to some single matter alleged. The object of the rule is to attain the simplicity neces- sary for the jury, by restricting the discussion before them to a single and simple proposition. It was thought no hardship to restrain the party to a single question, while he was allowed the choice of that question from among all the allegations of his 14 EVANS ON PLEADING adversary. General issues were, however, early allowed, as an exception to this rule; probably because in formed actions, the only species then known, the complaint of the plaintiff, in its nature, must generally be, if not single, at least very sim- ple and intelligible. But the defense of the defend- ant might involve a number of propositions, and so become too complex for the undisciplined under- standings of the jury. When the defendant, too, denied only a part of the declaration, it necessarily appeared to the court that such declaration was complex; and, as the defendant had waved his priv- ilege of a general issue, he was compelled to adhere to the rules, adopted for the attainment of single- ness and simplicity. The plaintiff, then, in reply- ing to a special plea, containing new matter, is in the same situation as the defendant in answering the declaration, except that he has not the advan- tage of the exception to the rule, requiring single- ness, which allows of a general issue. He may then either demur, deny any single allegation in the defendant's plea, or state new matter of his own, explaining and doing away the ^force of the new matters stated by defendant. If he pursue the first course, the pleadings are closed. If the sec- ond, the defendant is in the same situation as the plaintiff when the defendant pleads a special plea of the first class, and must pursue one of the courses above marked out in that ease. Either of these, it will be recollected, immediately closes the pleadings. If the third, the ball is precisely thrown IN CIVIL ACTIONS. 15 back to the defendant, who is then in the situation that his adversary was before he pleaded, and must pursue one of the courses marked out for him. It will, however, rarely be in the power of the plain- tiff to reply new matter to a plea containing new matter. The defendant,* by pleading new matter, admits himself to be within the general rules of law, on which the plaintiff relies, and shows the new matter for the purpose of bringing himself within some exception to them. The plaintiff, by replying new matter, in like manner admits the exception, and that the defendant has brought him- self within it; as, otherwise, he, the plaintiff, ought to have demurred, and now shows new matter, by way of bringing himself within an exception to the exception. Now, exceptions to exceptions are things of very rare occurrence. 15. A party, in replying new matter to new mat- ter, would run a great risk of alleging a new ground of action or defense. This would be, in substance, an abandonment of his former one, and, in the nature of things, is a mere giving up of the cause. It is technically termed a departure. If such departures were permitted, it is obvious that no cause could ever be brought to a conclusion, since every plead- ing might entirely change the wliole matter in dis- pute. It would, consequently, be forever impos- sible to ascertain the question to be decided, 16. It may now be useful to go somewhat more into the details of pleading, than has hitherto been done. It is proposed, first, to explain the various species 16 EVANS ON PLEADING of pleadings, and then the principles upon which they are all constructed. The general view which has been taken, will, it is hoped, enable the reader to comprehend the explanation of the details, to which his attention is now called ; and a knowledge of these details will be useful in illustrating the principles of the science. IN CIVIL ACTIONS. 17 CHAPTER II. THE VAKIOUS KINDS OF PLEADINGS. 17. The writing containing the plaintiff's com- plaint, is called, as we have seen, the declaration. The answer of the defendant, is called his plea, or bar, and is his first pleading. The reply of the plaintiff, being his second pleading, is called the replication. The second pleading of the defendant, being the fourth in the series, is the rejoinder. The name of surrejoinder is given to the fifth pleading, being the third of the plaintiff. The sixth plead- ing, being the third of the defendant, is the rebut- ter. The seventh, and last pleading, is called the surrebutter, and is the fourth of the plaintiff. It is, however, very unusual for the altercation to be continued further than the fourth pleading. When it passes the fifth, it is almost always the conse- quence of an injudicious use of the special traverse, a term which it will soon be our business to explain. 18. Besides the various kinds of pleadings above enumerated, which are common to every ^^^^ assign- species of action, there are some kinds ™«i'e. (a) (o) Stephens' PI. 320-338; 1 Chitty's PL 651-670; Lawes' PL 163 ; Gould's PL viiL § 75 ; Bacon's Abr. Title Trespass, I. 4, 3; 3 Black. Com. 311; Archibold Civil PL 386; Doctrina Placitandi, 318. 2 18 EVANS ON PLEADING which are peculiar to particular forms of action. These are novel assignments, avowries, and cog- nizances. Novel assignments belong to the action of trespass, and are a peculiar species of replication. For instance, when the plaintiff in an action of trespass quare clausum fregit., which is an action for breaking his close — in common language, com- ing upon his land — describes the land, which was the subject of the injury, only as his close or estate, lying in such a town, county, or other division of the country, the defendant might plead that the close was his, the defendant's, freehold. If the plaintiff denied that the close was the defendant's freehold, and the defendant proved that he had any land, in the division described by the declaration, the verdict must have been for the defendant. For the plaintiff having neglected to set out what land he meant, the defendant had a right to understand him, of any land which answered the only descrip- tion, which the plaintiff had thought proper to give. The defendant by his plea elected, to understand the plaintiff as claiming his, the defendant's land, in the same division. The plaintiff, by denying the defendant's right to the land, which he has claimed by the plea, confirmed him in this mistake, whether it were willful or otherwise. In order to avoid this inconvenience, the plaintiff, in the case supposed, is allowed to file a novel assignment, that is, a repli- cation, partaking, in some degree, of the nature of a m CIVIL ACTIONS. 19 declaration, and describing more accurately, the lands which he had before described too loosely. 19. Avowries and cognizances are pecu- ... ,^, ° -^ Avownes, (6) liar to the action of replevin. When goods cognizances.^ have been legally distrained, and the party to whom they belong, thinks fit to issue a writ of replevin, and, by that means take them out of the custody of the distrainor, such distrainor becomes the de- fendant in replevin. When the plaintiff, in replevin, declares against such a defendant, the defendant is permitted to file an avowry, or cognizance. When the defendant has acted on his own account, he files an avowry, is called the avowant, and is said to avow. When he has acted as the agent of another, he files a cognizance, and is called the cognizor. The difference between the two is entirely verbal. The avowry avows the taking the goods, the cogni- zance acknowledges it, and avers the authority of the agent. Both then go on to show the cause of the distress, and to complain of the plaintiff, whose misconduct or neglect gave occasion to the proceed- ing. The avowant or cognizor is thus converted into a plaintiff, and the original plaintiff is driven to excuse himself by a plea, as though he were a defendant. To this plea, the avowant or cognizor replies, the plaintiff rejoins, and so on until the case is brought to an issue. (6) Stephens' PI. 195, 403; 1 Chitty PI. 533; Lawes' PI. 35-86. (c) 1 Ch. PI. 486 ; Comyn's Digest Pleader, 3 K. 14; 4 Bouv. Inst. 3571 ; Morris on Replevin, 186-163. 20 EVANS ON PLEADING 20. In addition to the terms above i explained, there are several others of frequent use in pleading, Profertand ^°^''^ ^'"^ pTofert and oyer. A profert is, oyer, (d) -^^riien g party resting his demand or de- fense upon an instrument of writing .under seal, states in his pleading that he brings such instru- ment into court, in Lsitin profert in citriam. When a profert is made, the other party has a right to demand oyer of the writing; that is, to have it read to him. When it has : been; so read, he may set it out at length in his answer to the pleading in which the profert is made, and make such us© of it as to him may seem proper. When this is done, the in- strument is considered as a part of the pleading in which the profert is made> From- this account of oyer it will be seen,^^ that it is only necessary or useful in two cases. The first, when the instrument of which profert is made, varies from the descrip- tion of it contained in the pleading. The second, which is of more frequent occurrence, when it con- tains a condition of the performance of which, or of a legal excuse for the non-pertbrmance of which, the party intends to avail himself as an answer to the allegations of his adversary. Oyer is never necessary when the answer intended to be given to the charge or defense of the adversary, can be made intelligible without the use of more of the instru- ment of which profert has been made, than is set out in the pleadings. If more of that instrument {d) Stephens' PI. 66, 69, 436; 1 Ohitty's PI 378-386; Com- yn's Dig. Pleader, 6; G-ould's PI. viii. g 33-35, and seq. IN CIVIL ACTIONS. 21 is wanted, oyer is the only legal method of obtain- ing more. The party relying on a deed is generally bound to make profert, and it" he does not, it is a ground of demurrer; but he may have a legal ex- cuse for not making it, in which case such excuse must be stated instead of the profert. "When there is no profert, there can be no oyer. If a party pleads without profert or excuse for one, or with an insufficient excuse, when there Ought by law to be a profert, the other party must demur or lose the advantage of oyer. "When the excuse is sufficient, he may deny its truth, or avail himself of it in his answer by pleading the facts which would have appeared upon the instrument if oyer could have been had. This, in that case, and in that only, he is from necessity permitted to do. 21. The reasons of all this are now to be sought. Of profort it may be inquired, why is it made at all? "Why is it made at the time of pleading, and not of trial? Why is it made of a deed, as an instrument under seal is called, and of nothing else? And why is it not made of a deed incident- ally introduced into a cause, and not the direct ground of demand or defense? The reason of pro- fert is to be found in the fundamental principle of the law of evidence, which is that the best evidence that can be obtained must always be produced. The party claiming the benefit of a deed must then make profert, or bring his deed into court, because it is the best evidence of its own existence and con- tents. If this be impossible, he is excused, because 22 EVANS ON PLEADING tlie best evidence that can he obtained is sufficient; but he must state the impossibility that it may appear — and when stated it must, if denied, be proved like any other fact. With respect to the time of making profert, it may be observed that the time of pleading and the time of trial were formerly the same. When they were separated profert of the deed was required to be made in the pleading, in order that the opposite party might have an opportunity of ascertaining precisely its import. Profert was required of a deed only, because in the case of no other species of evidence was it possible. Contracts are divided, in the common law, into three classes: those of record, those by deed, and those by parol. Wrongs must always be proved by oral testimony. All writings authenticated by a seal are, in law, deeds; all not so authenticated, were mere memorandums to refresh the memory of witnesses. A signature anciently, when few could write, and fewer could judge of handwriting, was a more imperfect mode of authentication than a seal. For a man might procure a distinct seal who could not write a legible hand, and all could judge of the similarity of impressions — few of that of writing. Records were writings in public custody, which the party could not bring into court, because they were confined, by law, to some certain place, and which, for the same reason, he need not bring into court, since the other party might consult them at such place. Of oral testimony, for obvious reasons, pro- fert could not be made, nor could it have been nee- IN CIVIL ACTIONS. 23 essary or useful. Unsealed writings were, at the time of the invention of profert, no evidence at all. Frofert was then to be made of a deed, and of nothing else, because a deed was the only descrip- tion of evidence of which it was possible, or could be useful. Profert is not made of deeds which are only incidentally brought into a cause, because upon the original and strict principles of pleading, neither a deed, nor any other matter, could come incident- ally into a cause, or in any other manner, than by being directly pleaded. 22. The law of oyer is to be explained upon similar principles. If, when a deed has been brought into court by one party, the other party has, by not craving oyer, ^ neglected the means of keeping it there, he has suf- fered the best evidence to escape him. He is, there- fore, not allowed to aver matters of which, it judici- ally appears to the court, he can no longer obtain the legal, that is, the best evidence. But where the deed cannot be produced, he is at liberty to allege and prove, as he can, facts, the best evidence of which is lost, not by his fault, but his misfortune. («) Stephen's PI., 50,66-72; 1 Chitty's PI., 445-453; Comyn's Digest Abatement, I, 32, Pleader, P.; S Robinson's Practice, 131-151. 24 EVANS ON PLEADING CHAPTEE III. TRAVERSES, (a) 23. Pleadings are also divided, into pleadings showing new matter, and traverses or denials. Pleadings showing new matter, are sufficiently ex- plained by their name. Traverses are of three des- criptions. First, General Traverses; Second, Com- mon Traverses, and Third, Special Traverses. A traverse is the legal word for a denial. A gen- eral traverse, is the general denial of all the matters alleged by the adversary. This is only proper when the pleading is, strictly speaking, a plea, or the answer to a declaration General Trav- '■ erse. — SO that, correctly speaking, a general issue and general traverse are the same thing. But general denials in subsequent stages of the pleadings are tolerated, not indeed by the law, but by the practice of the profession, and may be still called general traverses. Such general traverses are, how- ever, subject to demurrer. Common traverses are denials of a particular matter, averred by the other party. Both general and common traverses, are dis- tinguished from pleadings showing new matter, by (a) 1 Chitty's PI., 631-651 ; Lawes' PI., 116; Gould's PL, Ch. VII.; Stephen's PL, 153-198; Arch. Civ. PL, 194; Bacon's Abr. Pleas, H; 1 Saunders, 103; 20 Viner's Abr. 339-414; 5 Robinson's Practice, 203-211. IN CIVIL ACTIONS. 25 their conclusion. The office of the conclusion of a pleading, is to refer the controversy to the proper tribunal: Declarations do not do this, c^^,,^^,,,^, „, but conclude with an averment, that the §^1?^''^^^^' plaintiff " brings suit and good proof," w* "^e. generally abridged into " suit, &c." — thereby inti- mating his readiness to establish his case, but offer- ing no reference of the controversy to any tribunal. This is probably because there having, as yet, been no altercation, the plaintiff is not to anticipate that there will be any controversy. In all subsequent stages of the cause, pleadings disclosing new matter, invariably conclude with what is technically called a verification. This is a declaration of the party's readiness to prove what he has averred, in this form, " and this he is ready to verify," followed by a prayer to the court of judgment, if the pleading be one of the plaintiff, whether he ought to be pre- cluded from having his action, upon the supposition that the facts stated are true. If the pleading is one of the defendant's, the statement of readiness to verify the facts alleged, is followed by a correspond- ing prayer of judgment, whether the plaintiff ought to recover. A general, or common traverse, always concludes to the country— that is, by referring the controversy to the country, which is, for that pur- pose, represented by the jury. A general, or com- mon traverse, are both, we have seen, simply denials of matters alleged by the adversary. The only con- troversy admissable upon them, is as to the truth of the matter alleged on one side, and denied on the 26 EVANS ON PLEADING other, of whicli a jury are the proper and legal judges. The form by which it is referred to them, must be one of these two, either " And of this he puts himself upon the country," or "And this he prays may be enquired of by the country." The last of these forms is properly appropriate to the plaintiff, and the other to the defendant; but the use of either, by either party, although an irregu- larity is not one of which any advantage can be taken. If a plea concluding to the country, do not amount to a traverse or denial, or if the fact trav- ersed be immaterial, that is unimportant to the decision of the cause, the party opposed to him who files such irregular pleading, may demur — in the first case specially, in the last generally. He by that means draws the validity of the pleading into controversy before the court. If, however, it be really a traverse of a material fact, the only answer which the law allows, is that which, in what- ever stage of the case it occurs, is called the ^^ similiter." It is in these words, " And form and the Said doth the like ; " that is, prays that the truth of the matters alleged by one party, and denied by tlie other, may be enquired of by the country, or puts himself upon, or refers himself to the country, as to the truth or falsehood of such matters. This confinement of a party, the truth of whose allegation is denied, to the proof of such allegation, is founded upon the best principles of morals and of logic. The rules of sound morals prohibit the deliberate assertion of IN CIVIL ACTIONS. 27 matters not known to be true — and those of logic are equally peremptory, in forbidding a change of the ground once assumed. It will be readily seen, that any other reply to a pleading, denying the allegation of that which it professes to answer, would be at once an abandonment of the ground assumed, and an admission of the falsity of the matters alleged. Hence that fundamental rule of pleading, that a traverse or issue well tendered must be joined. 24. We come now to the special traverse, a form of pleading, the rules governing which, special Trav- have been supposed the most intricate in '""*°' ^"^ the whole science. A special traverse is a pleading, which sets out with a detail of circumstances, incon- sistent with those stated in the one to which it pur- ports to be an answer, then directly denies some fact therein stated, and concludes with a verification. The detail of inconsistent circumstances, with which it commences, is usually termed the inducement to the traverse; the denial, as in other cases, ^^^ j^^^^^ is called simply the traverse. The legal , ™«°'- signification of the word inducement, is nearly the same with the popular signification of the word introduction. It is a rule that the inducement, or introduction of a special traverse, must aver matters inconsistent with those stated in the pleading to which the traverse applies, but not directly con- (a) Stephens' PI. (Tylers), 181-231; Lawes' PI., 116-180; 20 Viner's Abr., 339 ; 1 Saunders, 32, n. 2 ; 3 Tliomas' Coke Little ton, 363, n. (D.) 364 and n. (E.) ; 5 Robinson's Practice, 2U9-21 ] . 28 EVANS ON PLEADING tradictory of them. If the inducement contain a direct contradiction of the preceding pleading; it is itself a traverse, and the proper traverse being another, the pleading would contain two traverses, that is, two substantial defenses. This would be inconsistent with the simplicity and singleness required in pleading. If the inducement directly admit the truth of the whole pleading, it is incon- sistent with the traverse which it introduces. Special traverses may be considered as of three descriptions, according to the character of the matter traversed. One when the matter traversed is material or important to the decision of the cause, upon the face of the pleading in which it is alleged. A second, when the matter traversed is immaterial or unimportant to the decision of the cause, upon the face of the pleading in which it is alleged, but appears upon the disclosure of the matters stated in the inducement of the traverse, to be material. A third is, when the matter traversed, upon every view of the subject, is immaterial and unimportant. It will b^ at once seen, that the last is no legitimate traverse at all. Yet it is permitted to produce an effect upon the pleadings, somewhat different from that produced by a common traverse, under sim- ilar circumstances, which effect will be ■ hereafter explained. The first species is believed; by the writer, to be illegitimate as a special traverse, being only a common traverse with an inducement prefixed. It is, however, generally considered as a species of special traverse, although now deservedly much IN CIVIL ACTIONS. 29 disused. We shall now proceed to illustrate the somewhat difficult doctrine of special traverses by examples. 25. In so doing, we will first direct our attention to that species which we have placed second in our enumeration, that being regarded as the only legitimate species of special trav- ^g^ed^l^trav- erse. The plaintiff, in an action for ondc^Ls?"^' false imprisonment,, declares that the defendant, in Harford county, on the first of May, arrested him and detained him for two hours. We must here observe that, in law, time and place are generally immaterial, it being manifest that what is an injury at one time or place, is, generally speak- ing, equally so at another. Bat the defendant, in the case we have supposed, may have several defenses to which they are material. He may, for instance, have been the sheriff, and may have arrested the plaintiff by virtue of a writ, which had no existence on the first of May. Yet he cannot simply deny the truth of the plaintiff's declaration, because the declaration is true, all but the circum- stance of time, which being, as we have seen, gen- erally immaterial, and not having been shown to be material in this special case, need not be proved as alleged. He cannot detend himself by pleading the writ as a justification, because the writ had no existence at the time of the alleged arrest, and his plea would appear to apply to a different and sub- sequent arrest. His only course, then, is a special traverse. In his inducement he states that, on the 30 EVANS ON PLEADING tenth day of May, he was the sheriff of the county — that a writ had on that day been legally issued, and placed in his hands, by virtue of which he afterwards, upon that day, arrested the plaintiff, which is the same arrest complained of in the declaration. Here is a statement of facts, incon- sistent with that of the plaintiff. For if the arrest stated in the inducement be the same with that complained of in the declaration, the time of the arrest is differently stated in the two pleadings, yet there is no direct denial of any matter stated in the declaration. It may be observed that this state- ment of inconsistent matters shows that the time of the arrest, although generally immaterial, is in this special case material. For if the writ was issued upon the tenth of May, as is stated in the inducement, it cannot afford any justification to the arrest, if that took place on the first of May, as is stated in the declaration; but if it took place on the tenth of May, it may and does afford a justifi- cation. The time of the arrest now appearing to be material, the defendant goes on, and traverses or denies that he arrested the plaintiff on the first of May. Such a special traverse as this, is a pleading of a peculiar character; it both discloses new mat- ter, and denies matter previously alleged by the other party. The plaintiff in the supposed case is, however, not obliged to join issue upon the traverse, because the matter traversed only appears to be material upon the supposition that the matters stated in the inducement to the traverse are true — all of IN CIVIL ACTIONS. 31 wliich, for auglit that appears, may be false. He is then allowed his choice of three modes of reply. If he believes that the fact traversed is not material in itself, and is not made so by the matters disclosed in the inducement to the traverse, he may demur. Should the arrest have really taken place, at the time alleged in the declaration, he may re-aver that fact. He cannot, at once, join issue upon the trav- erse, because a special traverse proffers no issue, but concludes with a verification. When, therefore, a party is disposed to go to tainingan the iury, upon a matter of fact specially special 1 , . ^ , . ^ traverse. traversed, the course is tor him to re-aver such matter of fact, and conclude to the country. The other party, who has previously traversed such matter of fact, is then bound to put in the similiter. This is upon precisely the same principles as a party is obliged to join issue who has alleged mat- ters that are traversed, by a general or common traverse. If the supposed plaintiff, then, re-avers that the arrest took place on the first of May, an issue will be joined on that fact, which will deter- mine the cause. For the defendant, by restricting his defense to the tenth of May, admits he had no right to make the arrest before, and that, if he made it on the first, he committed an injury to the plain- tiff On the other hand, the plaintiff, by insisting that the arrest took place on the first of May, has admitted that, if it took place on another day, it was lawful. Our plaintiff has. also, a third course, if he should happen to think that the inducement, 82 EVANS ON PLEADING or any part of it, is untrue. He may traverse any part of the inducement which he pleases. He may deny the existence of the writ, that the defendant was slieriiF, or that the^ arrest was after the issuing of the writ. The last would seem to be the proper course, where the arrest was on any day other than the first of May. Upon any of these traverses, the defendant must join issue, unless he rather chooses to demur. 26. In the course of the preceding remarks, it has been stated that a special traverse never concludes to the country, or tenders an issue. The tavorse reason of this is tliat, in the description does not ,, . i , i . i • i tender 01 Special traverse, which we are consider- ing, and which has been already said to be the only one which the writer considers legiti- mate; the other party has a right to traverse the inducement, if he think proper. He is not bound to join the issue, because. Upon his view of the case, it may be an immaterial one. The rule, by which a party is compelled to join issue, when a fact he has alleged is denied, we have seen, is derived from certain principles of logic and ethics. J3ut no rule of logic forbids the abandonment of a position taken with respect to a collateral matter, under- stood not to affect the merits of the controversy. And although a rigid moralist might condemn the assertion of even an unimportant falsehood, it would be too severe a punishment for such a delin- quency to compel a party to adhere to such a false- hood, to the destruction of a cause in the main, just. IN CIVIL ACTIONS. 33 We may also observe that it is the universal prac- tice to insert false circnmstances of time and place in the declaration. This being known, such false- hoods lose that which constitutes the criminality of falsehood, since they deceive no one.' Besides, the adoption of a different rule would operate as a bounty to falsehood. For suppose the party whose allegation is specially traversed, were not allowed to traverse the inducement, but compelled to join issue on the traverse. The traverser might, then, by stat- ing falsehoods in his inducement, make that appear to be material which was really otherwise, and so procure the cause to be unjustly decided upon an immaterial issue. 27. "We will now illustrate special traverses of the same class from which the preceding instance was selected, by another imaginary cause. We will sup- pose the declaration to be the same as before. The defense, however, will now be that the arrest was in Baltimore County, of which the defendant was Sheriff. The arrest was made as before, by virtue of a writ. The defendant cannot, any more than before, deny the truth of the declaration, because it is true, all but an immaterial circumstance. Place, as well as time, is immaterial. An arrest in Balti- more County is as injurious as in Harford. For the very same reasons he cannot deny that the arrest was in Harford. He cannot plead his authority as a justification, because the arrest will not appear to be the same. He is again driven to a special trav- erse. His inducement must state that he was Sheriff 3 34 EVANS ON PLEADING of Baltimore County, that a writ had been regularly issued and placed in his hands, by virtue of which he arrested the plaintiff, which is the same arrest complained of in the declaration. His traverse must deny that the arrest was in Harford County. The plaintiff has again his choice of three courses: to demur, to reaver that the arrest was in Harford County, or to traverse some material fact alleged in the inducement. The material facts in the induce- ment are that the defendant was Sheriff of Balti- more County; that a writ was issued and placed in his hands which authorized the arrest, and that the arrest was in Baltimore County. If the arrest was in Harford County the plaintiff must reaver that fact; if it was in a third county, he must traverse that it was in Baltimore; if it was in Baltimore, he must attack some other part of the plea. The reader will here observe that, if the arrest was in a third county, the plaintiff may traverse that it was in Baltimore, and that without an inducement or introduction. Although place is generally imma- terial, it appears on the face of the plea that it is in this instance material, since the limits of Baltimore County are stated to be the limits of the defendant's authority. 28. So admirably is the special traverse adapted to answer the legitimate purposes for which it was designed, that the early pleaders, who were fond of reasoning, refined, even beyond the limits of the human understanding, were induced to apply the same forms of pleading, in cases to wliich they IN CIVIL ACTIONS. 35 did not properly belong. They thus gave origin to the two other species or classes of special trav- erses, which have been enumerated. The ^ , , - , Exam])1e of last ot these m order, is the next which special tmv- ' erse of the we shall discuss. It is universally twrd class. agreed not to be legitimate, yet it is allowed to have an operation on the pleadings, which it seems neces- sary to explain. To illustrate this, we will have recourse to another imaginary case. The declara- tion may be the same that has already been twice used for a similar purpose. The inducement to the traverse, may be the same as in the first case sup- posed. The traverse itself may deny that the de- fendant detained the plaintiff two hours. This is an immaterial traverse, upon the view of the case presented by the declaration ; because the time for which the plaintiff was detained, is only matter in aggravation of damages; the detaining him, for an instant, being illegal, and an injury, for which he is entitled to redress. It is equally immaterial on the view which is presented by the inducement of the traverse. Because if the arrest was legal, as by the inducement it appears to have been the time which the defendant detained the plaintiff, could not make it illegal, unless he detained him after the writ was countermanded, which is not alleged. This traverse is, then, totally immaterial, and like every other immaterial traverse, is the subject of a demurrer. It would seem that this ought, both upon principle and analogy, to be the. only reply the plaintiff should be permitted to make. But it will be re- 36 EVANS ON PLEADING marked, that the inducement contains a defense to the action, for the arrest is justified by the circum- stances stated therein, and is stated to be the same arrest complained of in the declaration. If any one of the matters stated in the inducement is fal^e, the plaintiff is permitted to traverse it, and thus make a material issue, instead of closing the pleadings by a demurrer, to an immaterial one, as he must do in every other case. This privilege, however, seems to be useless, since the party, to avail himself of it, must be prepared to show, that the traverse is im- material. For the first traverser may demur, and assign for cause, that the replication is a traverse after a traverse. In answer to which, the second traverser must show, either that the inducement to the first traverse renders that traverse material, in which case we have seen, that the traverse is legiti- mate; or that the first traverse is altogether imma- terial, which brings the case back to the same groimd as if he had himself demurred. If, how- ever, the first traverser makes up an issue upon the second traverse, and the decision is in favor of the second traverser, the public are put to the expense of a trial by jury, to decide a cause which might ^s well have been disposed of upon demurrer. . If the decision be in favor of the first traverser, the second loses his cause, by using his privilege, al- though he might have gained it had he demurred. Upon the principle of self-defense, then, a party whose pleading is traversed, will rarely, if ever avail himself of this privilege, which, in its result, must IN CIVIL ACTIONS. 37 be injnrions to himself, or to the public. The rule only serves to add intricacy to a subject, already sufficiently intricate. The doctrine is usually stated in law books, as it is stated above, that is, the right of a second traverse is spoken of as the privilege of the party. It is, nevertheless, probable, that the rule is one of the operations of a general rule to be mentioned hereafter, that judgment on a demurrer, must be given against the party who committed the first fanlt in pleading. The whole amount of it then will be, that the first traverser having com- mitted a fault, is no longer in condition to except to the faults of his adversary. The only remaining species of special ^^^^ ,^ ^^ traverse, is that which stood first in the "?f5''*l''',^^" 6rS6 OI bile enumeration, which has been made. It ^"'' °'''^^- was there described to be a special traverse, in which the matter traversed is material or important to the decision of the cause upon the face of the pleading, in which it is alleged. It has been before observed, that this species is illegitimate as a special traverse, being only a common traverse, with an inducement prefixed. The inducement not being necessary to show, that the traverse is material, is without an office, and the other party is not permitted to treat it as an existing thing. A fact alleged by him, and admitted by himself to be material, has been denied, he is not then, upon principles already discussed, at liberty to evade the task of proof. He cannot, however, put in the similiter, for the party plead- ing the traverse, having chosen to put an induce- 38 EVANS ON PLEADING merit to his traverse, is obliged to conclade with a verification, not being permitted to treat his own inducement as a nullity. The party whose allega- tion is traversed, is then driven, as before, to a re- averment, concluding to the country, upon which the issue is joined. The whole eifect, then, of the inducement, is to add to the volume of the record; first, by its own bulk, and then by that of the re- averment. This mode of pleading has, therefore, very properly been generally laid aside, but is still continued in a few instances, of which the plea of property in replevin, is, perhaps, the most com- mon. The plaintiff in replevin, demands certain goods of him, the said plaintiff, described in the writ. The defendant pleads that they are the goods of him, the said defendant, and not of the plaintiff, or that they are the goods of a third person, and not of the plaintiff. In either case, the first part of the plea, the inducement of the traverse is unnecessary, be- cause the denial that they are the goods of the plaintiff is the defense, and is equally good, whoever may be the real proprietor. Unless they are the goods of the plaintiff, he can have no right to disturb the pos- session of the defendant. Accordingly, the plaintiff is bound to re-aver that they are his goods, upon which re-averment the issue is joined. 29. It has been said, that the use of the induce- ment to a special traverse, is to qualify the denial. To this phrase there are two objections — that it is almost unintelligible, and that it is altogether un- true. For explaining what is meant by it a better IN CIVIL ACTIONS. 39 method can scarcely be suggested than an example. A most apposite one is to be found in "Wentworth's System of Pleading. A plaintiif declared against the defendant for warranting an unsound horse, which he had sold him, free from all defects. The defendant pleaded a special traverse; the induce- ment set out that the defendant had warranted the horse free from all Ttnovm defects — the traverse de- nied that he had warranted him free from all defects. Now, if this plea be looked at alone, it may be well said that the inducement qualifies the traverse. But that this effect is only apparent is manifest the moment it is recollected that the plain- tiff is not permitted to take any notice of the in- ducement. The plaintiff re-avers the warranty that the horse was free from all defects, and upon that re-averment the issue is joined. The question be- fore the jury is, did the defendant warrant the horse free from all defects. The jury never hear of the inducement — they do not even suspect its ex- istence. In fact, in this very case, at this day, the course would be to plead the general issue; this would put the plaintiff on the proof of his whole case — the allegations and the proofs must agree, and proof of a warranty free from all known de- fects would not support an allegation of a warranty free from all defects. 30. Mr. Stephen assigns the above erroneous reason for a special traverse. This is the more remarkable because he gives the form of a re-aver- ment, upon which the issue is joined, without any 40 EVANS ON PLEADING regard to the qualification of the denial said to be produced by the inducement. His supposed case is this: A tenant for life makes a lease for years, reserving rent to him and his heirs, taking a cove- nant for the payment of such rent. The tenant for life dies during the lease, and his heir brings covenant for rent in arrear, accruing after the death of the lessor. The declaration states, among other things, that the lessor being seized, that is, pos- sessed, in fee simple, made the lease, and that the lessee by force thereof entered, the reversion then belonging to the lessor and his heirs. The defend- ant, the lessee, pleads a special traverse. The in- ducement states the truth of the case — that the lessor vfas seized for life only, and died before the rent demanded in the action became due, whereby the lease was at an end. The traverse denies that the reversion belonged to the lessor and his heirs. To this the plaintiff replies that, after the making of the said lease, the reversion in the premises be- longed to the lessor and his heirs. The replication concludes to the country, and the only admissible rejoinder is the similiter. The issue is thus joined, and is, whether, after making the lease, the rever- sion belonged to the lessor and his heirs. This issue is precisely, and without any qualification, the same as would have arisen upon a common traverse of the same averment. 31. The special traverse is of that class which has been described as legitimate. It is a principle of law that, if a lessee enjoys the thing leased, he IN CIVIL ACTIONS. 41 shall not question his landlord's title when that landlord comes to demand his rent. If, through the defect of the landlord's title, the lessee has not enjoyed the thing leased, the lessor cannot recover his rent. But for the time during which the lessee has enjoyed, he is considered bound by his contract to pay rent, whether the lessor had any title or not. Hence it is unnecessary for a lessor, in an action for rent, to set out any title. When it is set out, it is an immaterial averment, as much so as time or place. But when the action is brouglvt, as in this case, by the heir, and not by the original lessor, it is necessary for him to set out such a title in his ancestor as will authorize the heir to sue. For if the lessor's own estate were for years, the reversion which he had will go to the executor. If for life, the lease is determined by his death, and the rent is gone. It is then necessary, to entitle the heir to recover, that he should set out a title in the lessor, which is descendible, and has descended to him. So far the averment, that the reversion belonged to the lessor and his heirs, is material. But, in another point of view, it is immaterial, for if the lessor had no title whatever in the premises leased, the I'ever- sion did not belong to him and his heirs, yet he is entitled to recover. The general rule is that the lessee cannot dispute his lessor's title. But the case of a tenant for life is an exception to that rule. The lessor had, and is admitted to have had, a title suffi- cient to authorize the lease when it was made. But that title has since been determined. If the trav- 42 EVANS ON PLEADING erse was taken without the inducement, the same issue would be joined as with the inducement, and in the case supposed the same result would be pro- duced. But another case might exist — the lessor might have had no title to the reversion at all; in that case, if the traverse had been pleaded without the inducement an immaterial issue must be joined. For in that case the plaintiff is entitled to recover, altliough the lessor had nothing in the land, and yet, if the jury are not satisfied that the reversion belonged to him and his heirs, they must find for the defendaTit. Upon the verdict rendered on this immaterial issue, a judgment must be pronounced, which cannot be reversed, for it is conceivable that the issue might be material, and it cannot be shown that it was not. The law will not compel the plaintiff to join such an issue. But if issue be joined upon the re-averment, after the traverse with the inducement, precisely the same consequence will result. If the plaintiff fail to establish the lessor's title to the reversion in fee, his allegations and proofs vary, and there must be a verdict against him. Here, then, there is no qualification of the issue — no qualification of the traverse. The in- ducement produces no effect on the issue. It merely discloses facts that show the issue to bo material — without which facts the issue is immaterial, and, if joined, might decide the cause contrary to law. The plaintiff, therefore, may, unless such facts exist, refuse to join such an issue. The inducement, by averring the facts, gives the plaintiff an opportu- IN CIVIL ACTIONS. 43 uity of denying them, if false. It takes away from him, then, the right of demurring to the traverse, as one which may be immaterial and is not shown to be material. He has still two courses left — either to re-aver that the lessor held the reversion to him or his heirs, or to traverse that he was tenant for life. If he traverses the averment that the lessor was tenant for life, the proof of that fact must be made by the defendant. And that is the proper question in the cause. If he re-avers that the reversion belonged to the lessor in fee, lie must prove a title precisely as if there had been no inducement. If the lessor had the fee simple, the proper course would be the last. If he had no title whatever, the proper course would be to traverse his estate for life. The issue would then be whether he had such an estate, and would exactly coincide with the legal merits of the case. For if he had such an estate, his lease, made by virtue thereof, is determined; if he had not, the lease is still in force; and if the tenant be in possession, he must pay his rent to his landlord, whether that landlord's title be good or bad. Such are the true reasons of this pleading, which is thus explained upon the principle, before laid down in these pages, without any reference to the doctrine of qualifying the issue. 32. Mr. Stephen assigns another use for the special traverse, to carry the question before the court instead of the jury. The case by which he illustrates the idea is the following. In an action of trespass for entering upon the plaintiff's land, the 44 EVAKS ON PLEADING defendant in the plea makes title to the land, by a lease from a beneficed clergyman, who was seized in right of his benefice, and whose lease, therefore required by the English law, the confirmation of his bishop. The plea states, among other things, that the bishop had confirmed the lease. The plaintiff replies by a special traverse. The induce- ment states, that when the bishop confirmed the lease, there was no number of years written in that instrument, and that the blank was filled up after confirmation. The traverse denies the confirmation by the bishop. The reason assigned, for questions to this Special traverse, is to transfer the decision of the question from the jury to the court. This is a loose and inaccurate, though usual, technical phrase. Accurately speaking, it is impossible to transfer any question from the jury to the court, or from the court to the jury. The rule of law is clear and distinct; it is, that in civil causes, the jury answer questions of fact, the court questions of law. No change of trib- unal can take place without a change in the char- acter of the question. To understand what is meant by such transfer, we must observe, that owing to some defects in the system of plead- ing, which will be explained hereafter, an issue sometimes presents a mixed question, of law and fact. For instance, certain facts are alleged on one side and denied on the other. The evidence to establish such facts, may be only that certain other facts exist, from which the law infers the existence IN CIVIL ACTIONS. 45 of the facts, alleged and denied. Or, it may be, that the issne involves certain acts, the vah'dity of which is denied, on the ground that they were done under circumstances, which deprived the agents of the legal power of action. In both these cases it will be seen, that there arises a mixed question of fact and law. Whether certain facts exist; and what is the legal consequence, supposing them to exist. When an issue of this sort is joined, it is supposed that the facts or acts, alleged and denied, are to be the subjects of direct proof, and that infer- ences and conclusions in law have nothing to do with the matter. It is regarded as a simple question of fact, and referred to a jury. When on the trial, the question as to the conclusions and inferences of law arise, they are referred to the court in a manner hereafter to be discussed. What is meant by trans- ferring the question from the jury to the court, is to state the real facts, that they may be admitted, and so the questions of law seperated from those of fact, and referred alone to the court. To illustrate this, we will suppose the case we have been stating, to be brought to issue by means of a re-averment and similiter. The issue would be, whether the bishop confirmed the lease, and the same as would have been produced by a common traverse of the same averment. It appears upon the face of it, to be a very simple question of fact. But when the circumstances alleged in the inducement to the special traverse, are taken into consideration, its appearance will be much changed. It is really a 46 EVANS ON PLEADING mixed question of law and fact. Involving several inquiries, whether the bishop confirmed the lease — under what circumstances the confirmation was made — and whether the confirmation, under those circumstances, was valid. It may be remarked, that the issue involves these inquiries equally, whether raised by means of a common or a special traverse. This issue, then, in either case, presents a mixed question of law and fact. There neither is, nor ouo^ht to be, any mode of transferring the wliole of this mixed question to the court. What is meant by transferring the question to the court, is re«lly the separation of the two questions, and referring each to its proper tribunal. The special traverse does not do this — it makes a seperation between the two questions, and enables the defendant, if he will, to refer the question of law to ,the court. But it does not compel him to do so, for if, instead of demur- ring, he re-avers, which he may do, he produces pre- cisely the same complex issue, or mixed question, as before. The true method of separating the question, is a special pleading showing new matter — a plead- ing which was contrived for that purpose. The plaintiff in this case might, by way of replication, have shown to the court, that at the time of the confirmation by the bishop, there was a blank in the lease for the number of years, and there stopped, concluding with a verification. If the fact averred in this replication was true, the defendant would have had no choice but to demur. For, if he trav- ersed the averment, the issue would be found against IN CIVIL ACTIONS. 47 him. If there were a doubt about the fact, he might traverse, and if a verdict were found against him, move in arrest of judgment. Thus both questions would be referred to their proper tribu- nals. It has been said, that the supposed replication would be bad, becatise a violation of the rule that pleadings must be direct, not argumentative. But the meaning of this rule is, that the existence of the facts relied on, must be directly alleged, and not inferred by argument; not that an inference of law, may not be drawn or assumed in the plead- ing. It is true, that if such a pleading be consid- ered as a traverse of the averment of a confirmation, it is argumentative, because it is not so intended. It can, indeed, only be made so by very subtle, perhaps fallacious, arguments. But considered as a confession and avoidance of that averment, it is not argumentative. It is a direct averment of a fact, which, in the opinion of the pleader, shows the confirmation to be void, while it confesses it to exist; it is precisely analogous to the plea of usury or infancy to a bond, both of which admit the physical existence of the bond, but imply it to be void for the reason assigned in the plea. If the averments of such a replication be traversed, the issue will be as direct as an issue can be. It appears, then, that this second reason for special traverses, is also insuflicient and errpneous. 33. The usual form of a special traverse is some- what remarkable. The party, having completed 48 EVANS ON PLEADING the inducement of the traverse, adds the words, " Without this ; " in Latin, " Absque hoo" and Form of a spe- states, affirmatively, the matter intended ciai traverse, ^q j^g denied. How this Strange phrase- ology came to import a denial, it is now neither easy to learn, nor important to know. That it has at- tained such a signification, and, moreover, given rise to one of the names of a special traverse, which is frequently called an '■^Absque hoc" is certain. The word traverse, too, is occasionally used alone, in law books, as the name of a special traverse; an ambiguity which is sometimes very perplexing to a student. 34. It may, perhaps, be well here to remark, that •when the fact traversed is matter of record, the Traverse of a ^''^'^^I'se docs uot concludc to the couutry ; Kecord. bccause, neither in contemplation of law, nor in fact, are jurymen competent to decide such matters. The traverse simply denies the existence of such a record as is alleged. The party alleging it must then prove its existence, by the production of the record itself, or of a copy, legally authen. ticated. The court, by inspection, ascertain the identity of the record produced, with that alleged. 35. The office of a traverse is to refer to a jury, the inquiry into the truth of some matter alleged on one side, and denied on the other, '^of a'^t?aTC?se. which allegation and denial constitute an issue. The parties by the conclusion of the traverse and the similiter, if the traverse be general or common, or by the conclusion of the re- IN CIVIL ACTIONS. 49 averment and the similiter, if the traverse be special, agree to refer the issue to the jury. The jury by their verdict settle the question, and if the issue be a material one, decide the cause. If the issue, however, be immaterial, and the pleadings present. a sufficient cause of action uncontradicted, to entitle the plaintiff to recover, he is not bound ■ by the verdict, if against him, but may apply for and obtain a judgment notwithstanding the verdict. In like manner, if a verdict on an immaterial issue, be found against a defendant, he may move for and obtain an arrest of judgment. It is sufficient, in this place, to mention these proceedings, and observe by the way, that thfe first is of rare, the last of con- tinual occurrence. 50 EVANS ON PLEADING CHAPTER IV. DEMURRERS, (a) 36. After the doctrine of traverses, naturally fol- lows that of demurrers. Demurrers close the alter- Form ana effect nation, by bringing the ease to an issue ofDemun-ers. jjj jg^^^ g^g tj-averscs do by bringing it to an issue in fact. Demurrers are of two kinds — general and special. The first is the only species known to the common law— the other owing its origin to statutory provisions. A general demur- rer is a pleading, in which the party demurring, avers that the pleading of his adversary does not contain sufficient matter in law to debar him, the party demurring from his action, or to authorize the recovery of the other party, and that he is not bound bj' law to answer. It concludes with a veri- fication and prayer of judgment, like a plea dis- closing new matters of fact. The answer to a demurrer, is called a joinder in demurrer, and merely reverses the allegations of the demurrer, concluding also with a verification and prayer of judgment. The issue in law is thus made up, and referred to the court, who are not supposed to require the same simplicity, in an issue submitted to them, as a jury. The issue in law is whether (a) Stephens' PI. 140-148; Chitty's PI. 693-702; Thomas' Coke's Littleton, 438-353 ; Gould's PI. IX. ; Bacon's Abr. PI., ISr. ; 5 Robinson's Practice, 188-186. IN CIVIL ACTIONS. • 51 upon the whole matter as disclosed in all the plead- ings, the plaintiif is entitled to recover. In order to clear the case of all controversies, about matters of fact, the demurrer and joinder in demurrer are construed, as mutual admissions, of all facts well pleaded. The court are then to consider, that every fact properly averred, is true, and upon that suppo- sition, are to decide the cause. In order to ascer- tain what iacts are properly averred they 1,004^,^ ^f must look at the whole record. Hence fauit°o'n de^' the rule of going back to the first fault, "'"'•er- The meaning of which is, that if the declaration is defective, the plaintiff is not entitled to recover, although no good defense is stated in the plea. The defendant was not bound to answer a defective declaration, and if he did, his answer, be it as de- fective as it might, could be no worse than an admission of the truth of the defective declaration, which would have been the effect of no answer at all. The plaintiff, not having been entitled to any answer, is not allowed to except to any answer, and judgment is given against him for the defect in his declaration. So if the declaration be good, and the plea defective, judgment must be given for the plaintiff, no matter how bad the replication. For the declaration has shown a good cause of action, which is unanswered. The same rule prevails throughout every stage of the pleadings, and for the same general reason. 37. Such was the nature and effect of a demurrer at common law — such still is the nature and effect •52 EVAWS ON PLEADING of general demurrers, except that upon general - demurrer, no advantage can be taken of errors in mere form. The word form is here used in a sense, different from that in which' it was used in the commencement of this essay. It was then used in a sense, in wiiich the mode of doing any thing, which might naturally be done in several ways, was regarded as a form. In this sense, judicial alterca- tion is itself a form. The object to be attained, is the ascertainment of the subject of controversy^ Now this may be done, and is done in some inferior tribunals, by liearing the evidence and learning the controversy from it, or it may be done by judicial altercation. Hence in relation to the general end to be attained, judicial controversy is itself btfta form. Tet considered in itself it may be divided into that which is, of -its substance or essence, that which is absolutely necdssary to its existence, that without which it would not be judicial altercation, and that which with relation to judicial altercation is form, that which may be done in various modes without djBstroying the existence of judicial altercation, although some of those modes may be preferable to others. Thus judicial altercation, not pertinent to the controversy, is not properly judicial altercation. That which is so loosely expressed as to be scarcely intelligible, is in effect impertinent. Pertinency and precision, are then the essence of judicial con- troversy. Other matters are regarded as form. It is in this sense that the word form is here used, and is generally used in the law of pleading, al^uough IN CIVIL ACTIONS. 53 with a laxity of application, and interpretation, much to be regretted. No advantage can be taken of offenses against form in this sense, by way of general demurrer, since the statutes have introduced special demurrers. 38. A special demurrer is a general demurrer, and something more, both in its form andin its effect. In form it is the same as a general . . . , , , J J • . • J- Special demnr- demurrer, with the addition oi an enum- rer form and « n 1-1 effect of. eration of the errors of form, to which the party intends to object. — It produces the same effect as a general demurrer as described above, upon all errors in substance. That is to say, upon all defects in any pleading, in consequence of which it does not show a right in the party to recover, or to resist the claim of his adversary. "With respect to formal errors, all those which are not set down in the special demurrer, are cured by the omission. Those only can be so set down, which are contained in the last pleading, the former errors having been cured by the omission, to demur sooner, or, as it is technically called, by pleading over. The rule of o-oing back to the first fault, does not apply to formal errors. Tlie theory of all this is, that form being only intended as a security for substance, the party who, by answering a pleading, has admitted it to be good in substance, and that he understands it, cannot afterwards object to a want of form, which, as to him, was not necessary to the purposes of justice. If the observation of any form be important to him, he has a right to insist upon its 5i EVANS ON PLEADING observance, by way of a special demurrer. The effect of a special demurrer, on the enumerated errors, is the same with that of a general demurrer, on substantial errors. The joinder in demurrer, and other proceedings, are the same as upon general demurrer. IN CIVIL ACTIONS. 55 CHAPTER Y. DILATORY PLEAS, (a) 39. The pleadings, hitherto spoken of, are those in use, when the controversy relates to the right of the plaintiff to recover. There is another class, known bj the name of dilatory pleas, because while they do not deny the right of the plaintiff to recover ultimately, they delay the recovery, by defeating his present action. It is sufficient to mention them, and their distinguishing peculiarity, which is, that they must always point out to the plaintiff, some better mode of proceeding. The most usual varie- ties of them, are pleas to the jurisdiction, which allege that the action has been brought in a wrong court; and pleas in abatement, alleging some error in the number or names of the parties. "When a dilatory plea is filed, the plaintiff must either demur, or traverse its allegation. If the plea is insufiicient in law, judgment is given that the defendant answer over, that is, file a better plea. If the plea is untrue, in fact, and so pronounced by a jury, the plaintiff has absolute judgment. If the plea is (a) Stephens' PI., 46-52; 1 Chitty's PI., 456-485; Goulds' PI., II, § 83; 3 Black. Com.. 301 ; Comyn's Dig. Abatement 0. etseq.; 3 Thomas' Coke's Littleton, 380 ; Gilbert's Com. Pleas, 302 ; 5 Robinson's Practice, 23-3, 80, 36, etc. ; Bacon's Abr. Aliens, E., Release A. 3. 56 EVANS ON PLEADING sufficient in law, and true in fact, judgment is given for the defendant absolutely, and the plaintiif is to seek another remedy; in which the defendant may, if he will, dispute the right to recover. IN CIVIL ACTIONS. 57 CHAPTEE VI. QUALITIES OF PLEADINGS IN GENERAL. 40. There are certain qualities which are requisite to constitute a good pleading of any denomination. They are generally supposed to be six in number, and may be thus enumerated in the order of their relative importance: truth, materiality, certainty, singleness, formality and brevity. For our present purpose, they may, perhaps, be best considered in an inverse order. 41. The least important quality of a pleading is brevity. It is one which has been more generally neglected than any other, and is, prob- ably, the last object to which anybody "^^^^ ^' will accuse the profession of the law of paying too much attention. The brevity which is required in pleading consists in brevity in stating each partic- ular which it is thought necessary to state, and in omitting, altogether, to state unnecessary matter. It is not a brevity which will limit the party as to the number of material particulars which he may state in support of his demand or defense, or even as to the number of modes in which he may be able to present such demand or defense. This species of brevity, limited as it is, has been and still is very much neglected, because it cannot be en- forced by the same means as the other qualities of (a) Stephens' Pleading, 410^36; 1 Ohitty PI. 311. 68 EVANS ON PLEADING a good pleading. Indeed, in this country, there can be scarcely said to exist any means of enforcing brevity in pleading. In England, where prolixity Brevity how ^nhances the expense of litigation, there euforced. jg niore attention paid to brevity, and the increased expense furnishes the courts with a means of enforcing it, by throwing the burden of such in- creased expense upon the faulty pleader. Although, in compliance with custom, brevity has been enu- merated among the necessary qualities of a good plea, the truth seems to be that it is rather recom- mended than required. Prolixity is nowhere re- garded as a defect in the plea, but as an offense in the j)leader. The rules under wliich it is punished belong rather to practice than pleading. 42. Formality may be defined conformity to cer- tain rules of mere form, by which are to its nature be Understood rules which have no direct aud use. , -t , ,. i tendency to secure any oi the more valu- able qualities of pleading, although their indirect tendency may be, and sometimes is, very important. The object of such rules is to throw an outwork around those qualities which are directly useful. Formality is, in itself, a thing of small importance, but of great value as a security to very important principles. It is almost peculiar to the system of altercation adopted by the common law. It is, therefore, easy for any one to satisfy himself of its (6) Stephens' PL 393; 3 Thomas' Coke's Littleton 406; Rdinhurgh Annual Register, 1834, Part II. p. 38-31; Comyn's Dig. Abaement, G. 7. IN CIVIL ACTIONS. 59 value, as sucli an outwork, by glancing his eye over a French or Spanish criminal proceeding. There, for want of such an outwork, he will find the un- fortunate prisoner called upon to answer a long and multifarious detail of unimportant and immaterial matters, among which it requires some acumen to detect the real accusation. Another illustration of the importance of formality is to be found in the Scotch courts of justice; of which it has been the sub- ject of complaint, in an official report, that owing to the loose narrative style in which the altercation is carried on, the judges themselves sometimes find it difficult to ascertain the precise subject of the con- troversy. It is remarkable that the remedy pro- posed is precisely the one prescribed by the common law, of throwing the altercation into a precise and defined form. The rules of mere form to which pleadings are subjected are of course too numerous to be detailed in an outline like this. However valuable some of them may be, it is not to be de- nied that others have \become useless or hurtful, and ouo'ht to be abolished. As an instance of useful rules of form, those already mentioned, relating to the conclusions of pleadings, may be adduced. 43. Singleness, the next quality in the inverse order we have adopted, is entirely peculiar to the common law. It is, in fact, one of the singieness.cc) distinguishing features or specific differ- ''^ ""'"'■'=• (c) Stephens' PI. ] 30-132, 251 at seq. ; 1 Chitty's PI. 249-251 ; Gould's PI. VII. §1-32; 3 Black Com. 311; Bacon's Abr. Pleas K. ; 8 Thomas' Coke's Littleton, 407. 60 EVANS ON PLEADING ences of special pleading. Notwithstanding which, it is regarded as merely formal, perhaps because with regard to judicial altercation it is really so. Special pleading being only one mode or form of judicial altercation, singleness is one of the qual- ities by which special pleading differs from every other form of judicial altercation. It owes its exist- ence, as has been already hinted, to the necessity of obtaining a simple issue or question for the jury. When the distinction between form and substance in pleading was first practically introduced into the law, singleness was classed with the latter. But as the growing intelligence of juries rendered its object less important, it has been transferred to the class of forms, and a violation of its rules is now a defect to be taken advantage of by special demurrer only. The singleness required in a pleading maj' be vio- lated in two ways : By denying the truth of several matters stated by the other party, or by inserting in a pleading showing new matter two or more sub- stantial replies to the preceding pleading. In plead- ing new matter all the circumstances necessary to make out a complete defense or claim may be Singleness in stated, but not two Or more distinct de- ?ho°\^n|new fsnscs Or claims. The first could not matter. perplex the jury, because the other party must deny some one simple proposition. The other would probably perplex them, because, if such pleading were permitted, it would be requisite for the opposite party to deny the truth of all the grounds of action alleged, or defenses taken, or oth- jlenesB m traverses. IN CIVIL ACTIONS. 61 erwise to answer them, and so produce a compli- cated issue. The party must, if such pleading were allowed, deny the truth of all the grounds of action alleged, or defenses taken, or otherwise answer them. If he left any of them unanswered there would ap- ])ear upon the record a sufficient ground of demand or defense, undenied and unexplained, which must determine the cause. 44. We may remark, that singleness in a plead- ing showing new matter, is properly unity, and is violated by the setting up of two or more defenses or answers to a defense in one pleading, which is, strictly speaking, duplicity. In traverses, gjj^g,^ singleness is properly simplicity, and is violated by traversing two or more of the facts stated in the affirmative pleading, to which it is an answer. This is properly multifariousness or com- plexity, since only one demand, defense, or answer to a defense, is submitted to discussion, although many propositions, going to make up such demand, defense or answer, are discussed, when the discussion of one might have sufficed. The terms singleness and duplicity are, however, the legal terms, by which the qualities of singleness proper and sim- plicity, on the one hand, and of duplicity and mul- tifariousness or complexity on the other, are known. 45. There is a third kind of single- gij^gi^ness as ness, which was formerly required in all i°er'Sf pS: the stages of the cause, and is still re- *°g'- quired in some of them. It consists in filing one pleading only in each stage of the altercation. Its 62 EVANS OK PLEADING object was, that as the issue was to be single and sim- ple in itself, so there should be but one issue in each cause. So much care was formerly thought neces- sary, to avoid perplexing the jury. It was then generally necessary to present to the jury one, and but one, very simple proposition, into the truth or falsehood of which, they were to inquire. But even at common law, the courts were driven to the neces- sity of permitting two exceptions to the last men- tioned rule, although none to the rule of filing, bnt one pleading in one stage of the altercation. Now, since knowledge is more diffused, and juries more intelligent, it is permitted to present them in most cases, where it is naiturally possible, several ques- tions, or, as they are technically called, issues. But it is still required that each of those issues should, in itself, be single and simple. Various modes have been accordingly devised, by which issues may be multiplied. The parties, however, are carefully confined to the known exceptions from, and relaxa- tions of the ancient law. 46. The first exception is the joinder of several counts in one declaration. Count is an old French Joinder of w ^ord, signifying a tale, and, technically, counts. ^jjg ^^]g Qj. complaint of the plaintiff. It is now used for such a portion of the declaration, as contains a complete statement of a cause of action, and the plaintiff is at liberty to join as many causes (d) Stephens' PI. 267, cxvii ; 1 Chitty s PI. 425, 434 ; Gould's PI. iv, § 4, 5; Lawe's PI., 73; Bacon's Abr. Pleas, etc. B. 1; 3 Thomas' Coke's Littleton, 861. IN CIVIL ACTIONS. 63 of action, or, which is more common, as many varied statements, of a cause of action, as he pleases, in one declaration; provided they are all proper to one form of action. 47. Each of these statements is a count, and tliey having one general commencement and conclusion, and being coupled together by the copulative con- junction, are regarded so far as one declaration, that they may be all filed at once; and so far as different declarations, that they may receive different answers. If the defendant have one defense to all the counts, which, when they are only varied statements of the same cause of action, is generally the case, he replies to them all in one plea. If that be a plea showing new matter, the cause is restored to its pristine con- dition, 'and will terminate in one is^ue; if it be a ireneral traverse, there is still, in form, but one issue; which, however, really involves as many issues as there are counts. The defendant is, how- ever, at liberty to plead a several plea to each count; in which case, the pleadings proceed as if each count were a separate declaration; and there will be as many issues as counts. Bat all the rules of plead- ing, as well that of singleness as the others, apply to each set of pleadings, as fully as though each set were the only one in the cause. The probable origin of several counts in one declaration is this. But one action of one form, between the same parties, could, formerly, be brought at once. Where a plaintiff then had really several causes of action, proper to the same form, he was obliged to state 64 EVANS ON PLEADING them all in one declaration. The use of several counts Avas an invention, intended to meet this diffi- culty, but was soon employed as a means of secur- ing a conformity between the allegations and the proofs, by varying statements of the same cause of action. 48. The second exception is this, that when a single cause of action, is susceptible of division, and the defendant has several defenses, to several parts Several issues of it, he may in one plea set out all his in one plea, (jefenses. This however must be done in such a way as to violate, as little as possible, the rule of singleness. The defenses taken together, must precisely cover the cause of action and no more. No two of them, must cover any one portion of the cause of action, and each defense must be in itself single and entire. By observing these rules, although several issues may grow out of one plea, none of them will be deficient in that internal singleness, to which, in the system called special pleading, so much importance is attached. 49. The case in which the benefit of this exception is usually claimed, are only two, and a statement of them as examples, will perhaps illustrate a sub- ject, in itself somewhat obscure. The first, is where the plaintiff alleges that the defendant has com- mitted an injury with force, and the defendant is prepared to allege circumstances, which will justify his conduct, but will not justify the use of force. In this case, he may deny the force, and then pro- ceed to allege the circustances, on which he relies IN CIVIL ACTIONS. 65 for justification. Two issues are thus presented for the consideration of the jury, first, whether force was used; second, whether the justifying circuirk- stances have an existence. This is the most com- mon form in which the exception appears; most pleas, in justification of a defendant's meddling with the property of another, commencing with a denial of the force. But tlie plurality of issues, in this case is rather apparent than real; for the force alleged in the ordinary form of a declaration, is understood to be an imaginary force, inferred by law from an illegal, direct intermeddling with the plaintiff's property. Its existence, then, . depends upon the legality or illegality of the defendant's interference, and the first issue is, in effect, involved in the second. But where the plaintiff has expressly alleged actual force, the same mode of pleading must be adopted, if actual force has not been used, and two real issiies will then exist, arising out of the same plea, 50. The other case referred to, is where the plain- tiff complains of an injury to a divisible portion of his property, and the defendant has a justification for meddling with only a portion of that portion, or two or more justifications for meddling with several of its parts. He may then allege, in one plea, his justification, or his several justifications, applying each to the portion of the complaint to which it belongs. In the same plea, he may deny that he has intermeddled with those portions of the prop- erty, to which the circumstances he has alleged in his 5 66 EVANS ON PLEADING justification, do not apply. This may be better understood by an example. The plaintiff alleges 'that the defendant, with force, took from him two horses, two cows, and twenty sheep. The defendant may deny tlie force, allege that he took the horses as a distress for rent due to himself, the cows and ten of the sheep, by virtue of a writ of replevin, for two cows and ten sheep, which the sheriff had authorized him to serve, and deny that he took the other ten sheep. This plea gives rise to four issues. The first an apparent one following the fate of the others. The second, relating to the horses, will be whether the rent was due, should the plaintiff deny that allegation, or whether the defendant had a right to distrain for such rent, if the plaintiff demurs. The third may, by the plaintiff's pleadings, be determined upon the existence of the writ of replevin, of the deputation of the sheriff to the defendant, on the right of the person stated to be sheriff, to that office, or on the legal effect of either of them, or of all taken together. The fourth, as to the ten sheep not covered by the replevin, is, in substance, whether the defendant did, or did not, take more sheep than the replevin authorized him to take. It will be seen, that although four issues here grow out of one plea, all that can go to a jury are single and entire within themselves. Several ^^- '^^® "^^^ ^lode of multiplying breaches, igg^es, is authorized by an English stat- ute— (SifA and 9tk Will. III. chap. 11, sect. 8.) It is confined to the action of debt, and to one IN CIVIL ACTIONS. 67 particular class of the cases, to which that action is applicable. That is, to the action of debt, upon a bond with collateral condition. A bond with col- lateral condition, is a bond by which the party binds himself to pay a sum of money, with a stipulation annexed, that the bond shall be void if a particular event does, or does not occur; or if the parties, or one of them, or some other person or persons, do or abstain from some particular action, or course of action. When the defendant, in his plea, alleges performance of the condition or stipulation of such a bond, the plaintiff at common law was obliged to assign some one single breach thereof, which the defendant might traverse, and so produce a single issue. But by the statute of "William III. he may assign as many broaches as he will, and each breach gives rise to a seperate issue. 52. The fourth mode of multiplying issues, is also provided by an English statute — {4:th Anne, chap. 16.) The effect of this statute is, that the defendant may plead as many pleas as he will, to the declaration, or to each of its counts. This will, of course, give rise to as many issues as there are pleas. 53. The fifth and last mode, is confined to the action of replevin, and owes its origin to the last mentioned statute. In replevin, if the defendant avows or acknowledges the taking of the goods, and sets up a legal right to take them, by way of dis- tress, the plaintiff may plead as many several pleas, eS EVANS ON PLEADING to snch avowry or cognizance, as he will, each of which will give rise to an isene. 54. But, although it is thus allowed to multiply issues to an almost unlimited extentj because the Doable plead- J"'".! ^an Consider each issue succes- ing. («) gively, it is not allowed to perplex them, in their deliberations upon any one issue, by ren- dering it either complex or double. 55. The doctrine of precision, or distinctness in pleading, usually called by lawyers certainty, now claims our attention. There is a great er a n y. ( ^^^| ^^ pedantry in the law books, abont the degrees of certainty, of which they enumerate three, and require different degrees in different cases. But notwithstanding that the old lawyers, according to their custom, have perplexed the sub- ject with useless refinements, the principle is of vital importance to the interests ol justice. It is manifest, that without some degree of precision or certainty, judicial altercation cannot exist. The lowest degree that can be thought sufficient, is that which will render the pleading easily intelligible by ordinary minds. This seems to be that degree of distinctness which the old writers have designated To a common ^J *^^® barbarous phrase, "certainty to a intent. common intent." Without this it is (e) Stephens' H. 251-279; Bacon's' Abr. Pleas. E; 1 Com- yn's Dig. Pleadur. (/) Stephens' PI. 379-334; 1 Chitty's PI. 356-260; Gould's PI. lii. § 52, 101, iv. § 33-37; Lawe's PL 54-60; Comyn'a Dig. Pleader, C. 17 ; Thomas Coke's Littleton, 361. IN CIVIL ACTIONS. (59 impossible to answer tlie pleading, or to inquire into its truth. This degree may be then safely re- garded as of the essence of pleading. Every system of iudicial altercation has two objects in view, to apprise the parties and the tribunal of the precise subject of the controversy. Special pleading adds to these, two o hers — to refer the controversy to the proper tribunal, and to simplify the inquiries of the jury. For all these objects, a great degree of pre- cision is highly convenient — some degree absolutely necessary. The importance of certainty *', . ^ .Its importance. or precision is not peculiar to special pleading, although it is among the merits of that system, that it, more effectually than any other, provides for its preservation. There are three causes which combine to produpe this effect. The excellence of the rules, adopted directly to enforce precision. The formality required in special plead- ing, which, by furnishing the pleader with set phrases, increases the facility of writing with pre- cision, since such phrases, even when ill-chosen, as in the case already mentioned of "Absque hoc," acquire a technical precision of meaning. Lastly, the habit of accurate thinking, which it is the ten- dency of the whole system, and particularly of the doctrine of singleness, to produce, in the minds of those who make it their study or practice. 56. The materiality of pleadings, is j,^,,,j^iny. ^^^ the next subject for consideration. A (ff) Stephens' PI. 240-247; 1 Chitty's PI. 253; Tucker's PL 95; Gould's PI. ill. § 28-35. 70 EVANS OK PLEADING material pleading is one wliich avers material or important facts, or which denies the material aver- ments of the preceding pleading. Materiality is, then, of the essence of judicial altercation, for it is manifest that if the averments and denials be not important to the decision of the cause, no matter how concisely, formally and precisely they may be drawn, no matter with what care and success they may be arranged under the heads of supposed sepa- rate defenses, and no matter how true they may be, although they may perplex, they can never assist the tribunal, which is to make the decision. Im- material pleadings may impede, but they cannot advance the administration of justice. Immateri- ality is, then, an unpardonable fault in pleading, and is always the subject of a general demurrer. It is a disease which no circumstance whatever, not even the verdict of a jury, and the judgment of a court, can cure. 57. A pleading must be material in itself; that is, it nmst, if a declaration, state an injury for which the law affords a remedy, or if it be a subse- quent pleading, an answer to the next preceding pleading. A pleading must also be material with relation to the parties. It must also be material with relation to the form of action. 58. Pleadings must be material in Several kinds ° of material- themsclves, and this with relation to the several stages of the cause; for a plead- ing may be material in one stage of the cause, and may be immaterial in another. That which is a IN CIVIL ACTIONS. 71 good defense in one state of a case, if it be not then made, cannot be made in another. To understand this, it is necessary to recollect that pleading is al- tercation; that whatever fact or principle is stated by one party, and not denied by the other, is to be taken as admitted. Hence, every pleading alters the state of the argument. The reason of the rule is to be found in the same logical and moral princi- ples which bind a party, whose pleading has been traversed, to join issue upon the traverse. "When a party has once rested his defense iipon an averment, or series of averments, or upon a denial, he cannot afterwards change his ground without admitting one of two things — that he has averred a falseliood, or denied the truth, as the former pleading was af- firmative or negative — or that he has rested his defense or demand upon an unimportant or imma- terial fact. In the one case he offends against moral, in the other against logical principle. Be- sides, sound policy forbids any such departure, for, if permitted at one stage of a cause, they must be permitted at all, and the altercation could never be brought to a close. The party who felt himself in the wrong might, by continual changes of his ground, forever protract the preparatory discussion. The case would never be prepared for a decision, and, therefore, never decided. A pleading which assumes a new ground admits that the former was untenable, for if it had been tenable the party would have adhered to it. If it was not tenable, judgment ought to have been given for the other 72 EVANS ON PLEADING party, and would have been so given had the conrt been aware of its defects. Those defects are now admitted, and the same judgment is given which would have been given before had they been before discovered. 59. We shall, as usual, illustrate this by an ex- ample. To an action of debt on bond, the defend- ant, having had oyer, by which it appears to be a bond with collateral condition, may plead perform- ance of the condition. To this the plaintiff may reply, assigning particular breaches of the condi- tion. The only answers wliich the defendant can make are a demurrer or a traverse. That is, he must deny the truth of the matters alleged as breaches of the condition, or that they are such breaches. For, having once alleged that he has performed the condition, he has narrowed the con- troversy to this question, has he performed the condition or not? He cannot, therefore, rejoin that the plaintiff has released him, or that the bond is not his deed, or any alleged reason why he is not bound to perform the condition, technically called an excuse, for non -performance. Yet all these would have been good answers to the declaration, and might have been pleaded instead of perform- ance, or with it, under the statute of double plead- ing. They cannot, however, be used in this stage of the cause, because they do not show that the de- fendant has performed the condition. Thus, in' a case actually decided, where the plaintiff declared on a bond, the condition of which, on oyer, ap- IK CIVIL ACTIONS. 73 peared to be that the defendant should indemnify a parish from any expense on account of a certain child. The defendant pleaded that the parish had not been damniiied. The plaintiff replied, showing damage. The defendant rejoined, that he was will- ing to have maintained the child, and so have pre- vented the damage. This was adjudged a departure, because it had no tendency to show that the par- ish had not sustained damage. 60. A pleading must also be material with rela- tion to the parties. That is, it must, if a declaration, make the proper persons plaintiffs and .\, , , T Materiality defendants : if a subsequent pleadmg, with relation ' 1 ° to parties. relate to matters transacted among the persons whom the declaration has made parties to the cause. 61. A pleading must also be material with rela- tion to the form of action. That is, if a declaration, it must show that the injury complained Materiality of is one for which the law allows the roformo*fac° party to seek redress in the form of ac- '""'■ tion which he has adopted. If a general issue plea, it must be the one which the law has appropriated to the form of action used. 62. Of the qualities of a pleading, which we have enumerated, the only one, remainibg ' 11 Truth. (A) undiscussed, is truth. And this, not- withstanding we have, in compliance with custom, so enumerated it, and notwitlistandiug its impor- tance, is not, properly, a quality of a pleading. It (A) Stephen's PI., 441 ; Bacon's Abr. Pleas, G. 4. 74 EVANS ON PLEADING is, strictly, a quality of the matters set forth in the pleading. The science of pleading has no rules, whereby truth can be ascertained. The court can- not, by themselves, inquire into its existence; that is the province of the jury, and tlieir inquiries are conducted, not according to the rules of pleading, which are not intended or adapted for aiding them, but according to the rules of evidence. The only rule on the subject, which can be said, with any shadow of propriety, to belong to the science of pleading, is this : that the facts alleged must be true, at the time of action brought. But even this is not so properly a rule of pleading as of evidence. Since a demurrer, the proper mode of enforcing attention to the rules of pleading, is here powerless, and a disregard of the rule operates only as a variance between the allegation and the proof. IN CIVIL ACTIONS. 75 CHAPTER YII. ACTIONS, (a) 63. The wisdom of our ancestors provided, for the redress of the injuries which most frequently occurred in their time, certain forms of proceeding, utility of forms *^ which the name of formed actions has of action, ^^ggjj giygQ^ The action on the case has, with no less wisdom, been since provided, for the redress of such injuries as were not known to, and could not be foreseen by, the original framers of formed actions. The policy of separating each class of cases from all others, by a form of action, and thereby giving the defendant some notice, from the very commencement of the cause, of the nature of the complaint, and precluding the plaintiff from changing entirely the ground at first taken, has been observed, with more or less rigor, by all civilized nations. It may, therefore, properly be assumed, that it is consistent with the notions generally entertained by mankind of what is riglit and fair. Yet we continually hear complaints of it, as an useless and unwholesome rigor. It can scarcely be thought, however, by any impartial man, that the common law, in its present state, is too strict upon this subject. The action on the (a) Stephens' PI., 9-20; 1 Chltty's PI., 106-110; 3 Black. Com., 270; Gilbert Hist. C. P., 2, 4, 5; 3 Thomas' Coke's Lit- tleton, 348 et seg ; 1 Tidd's Practice, 1-27 ; 1 BurriU's Prac- tice, 5-28; 3 Robinson's Practice, 358-482. 76 EVANS ON PLEADING case, which, in its various modifications, is the remedy for the larger part of the injuries committed in modern times, is only described in the writ as an action on the case. The defendant may conjecture, if he can, whether the plaintiff feels himself aggrieved by some remark injurious to his character, or by the non-performance of some supposed agree- ment, or by some other of the almost innumerable occurrences which furnish legal ground for an action on the case. The formed actions, it is true, are less liberal in this respect, and compel the plain- tiff, in the writ which commences the proceedings, to give some notice of the nature of the complaint. That the want of such notice is an evil, from which the defendant has some right to be protected, the legislature of Maryland seem to have believed, when they forbid sheriffs from taking bail in more than fifty pounds in any action on the case, unless a copy of the declaration containing the true cause of action, should be sent with the writ. Tlie English leeisla- ture still more effectually protected the defendant, when they required an affidavit to be filed of the true cause of action, before any bail could be required. What the Maryland act of assembly does in actions on the case, by sending a copy of the declaration, the common law does in formed actions, by means of the writ itself. Forms of action ^^- ^^^ ancicut formed actions have, in use. most of them, fellen into disuse, with the injuries for which they sought redress. There only remain in use in Maryland, although others are IN CIVIL ACTIONS. 77 doubtless in force, dower, ejectment, trespass, vi et armis, replevin, covenant, debt and scire facias. Of these, the four first are regarded as actions for wrongs; the three last, as actions upon contracts. This division, as to the three first and fifth, is strictly accurate. Replevin, however, may in Mary- land be used as a means of enforcing a contract of sale. Debt is sometimes brought in cases scarcely reducible to the head of contract. And, in modern times, there are very few cases of contracts to which scire facias is aj^plicable. The division, however, is accurate enough for most purposes, and in formed actions particularly, is to be regarded as important. For although the different actions of each class, as above designated, have among them some common ground, where a man may elect his remedy, no election is, in formed actions, ever given between the two classes. This remark does not a^^ply to the action on the case, which is also divided into the two grand divisions of actions of assumsit, or actions on the case upon promises, and actions on the case for wrongs or torts. Yet a party may, sometimes, elect under which division he will class his case. He may also, sometimes, elect whether he will seek redress — by a formed action, or an action on the case. 65. We must now endeavor to ascertain the boundaries of the several actions. The action of dower is one provided to enable a (6) Stephens' PI., 10; 1 Thomas' Coke's Littleton, 585 & n. (R) ; 1 Lomax Dig., 118-19. 78 EVANS ON PLEADING ■widow to recover lier dower, or third part for life of her husband's real estate. It is entirely restrained to this object, and can be applied to no other, nor can any other action attain this object. Dower has, then, no ground in common with any other action. 66. Ejectment, in its present state, is the remedy for detaining land belonging to another. This injury can be redressed by no other of the enum- Ejectment. (c) , ■■ . . . ,, . . erated actions, nor is any other action than ejectment ever resorted to, for that purpose, in Maryland. Ejectment may, then, also be considered as having no common ground, with any other action. It is, indeed, sometimes employed as a means of compelling the payment of rent. But when it is so employed, it is because the interest of tlie tenant in the land, is considered as forfeited, by non-pay- ment of rent, and the action is brought by the landlord to recover possession. The rent is paid by the tenant to save the forfeiture. The payment is a collateral matter, which is not directly enforced by the action. 67. The action of trespass, or, more accni-ately, of trespass vi et armis, is an action devised to give Trespass m«< redress for a direct unlawful intermed- armis. (_d) (Jjing with the property or person of an- other. In the days of ancient violence, such injur- ies were generally accompanied with force, or were at least committed in the confidence that the wrong- (c) Stephens' PI., 13-14; 1 Chitty's PI., 209-315; Hales' History E. L., 176 ; 3 Thomas' Coke's Littleton, 308-213. (d) Stephens' PI. 17 ; 1 Chitty PI. 186-209. m CIVIL ACTIONS. 79 doer was backed, and would be borne out by su- perior force. Hence, they are always stated in the writ and declaration to have been committed "w et armis "— in English, " with force and arms." This phrase constitutes the verbal difference between this action and the action on the case for a wronsr. The real distinction is in the thing signified by the phrase. The thing signified is a technical or imag- inary force, inferred by the law from every direct unlawful intermeddling with the person or property of another. The distinction is in the intermeddlins being direct, for the law supposes that no man will tamely permit a direct interference in his concerns, and therefore that no man will attempt such direct interference unless he is prepared with a force to support his intrusion. This inference, it will be seen, arises out of the notion that the plaintiif will resent the attack upon himself or his property. We are, therefore, to look at the condition of the plaintiff", not of the defendant, to ascertain whether the law will impute force to the defendant. If the plaintiff or his property he directly attacked, al- though by the indirect procurement of the defend- ant, the law implies force. Thus where the defend- ant has employed other persons as the agents in the attack on the person or property of the plaintiif, the law will imply force. Thus, also, if a direct interference with the person or property of another be produced in consequence of ray act, although there may have been several intermediate actors, the law presumes that I would not have done 80 EVANS ON PLEADING such act had I not been supported by a competent force. In the case which is considered as the lead- ing one upon this subject, the defendant threw a lighted squib in a crowded market place; several persons, in self-defense, threw it from their respect- ive vicinities, until it struck the plaintiif, and put out his eye. Here was no act of the defendant di- rectly interfering with the plaintiff, but a direct interference with the plaintiff was the indirect con- sequence of the defendant's act, and trespass vi et armis was adjudged to be the proper remedy. So where one man whipped a horse ridden by another, and drove him over a third, trespass vi et armis was held to lie. 68. From these principles we may infer that no action of trespass vi et armis, will lie for sny injury to incorporeal property, such property not being susceptible of a direct interference. For the same reason, no such action will lie for any injury to reputation. Where the injury, although direct, is committed by means of legal process, the action must be case. Because it is manifest that the de- fendant, instead of relying on his own force, resorted to improper means for availing himself of that of the public. But where the officers of the law, entering the property of a person by means of legal process, abuse that entry to an improper pur- pose, the action must be vi et armis. The reason is that in directing the public force, of which they have the command, to objects not warranted by the process under which they profess to act, they ren- IN CIVIL ACTIONS. 81 der it, for tlie time being, a private and nnlawfnl force, applied to the purpose of supporting them in their unlawful conduct. In the other case, the public force is employed for its legitimate purpose, of enforcing the public process, although that pro- cess itself has been misapplied and abused. There is, however, a verj numerous class of cases which are exceptions out of our rule. Cases in which an action on the case niav be brought, although there has been a direct intermeddling with the per- son or property of the plaintiff. These are cases in which the injury was the result of negligence, for the law will not generally presume that a man pro- vides himself with force before he ventures to be negligent, although in some anomalous cases it does so presume. 69. Such is the boundary between actions of trespass vi et armis and actions on the case; but, although it seems tolerably well defined, they have some common ground between them. Both actions will lie, for criminal conversation with a plaintiff's wife. Trespass vi et armis, because there is a di- rect intermeddling with the person of the wife. Case, because the affections of the wife, the subject of the real injury, being incorporeal, are not sus- ceptible of a direct interference. 70. Where the injury is taking the plaintiff's goods, there is a direct interference which is the subject of an action of trespass vi et armis. But the plaintiff is permitted to wave that injury and bring an action of trover, which is an action on the 6 82 EVANS ON PLEADING case for detaining the goods. The mere detaining of goods which have come lawfully to a man's hands is not regarded as a forcible injury, since it is not an interference with the plaintiff's property, in his possession, and there is, consequently, no occa- sion for a force to overawe him. But the unlawful taking, which the plaintiff is supposed to waive in bringing his suit, he is permitted on the trial to prove as evidence of a conversion of the goods to the nse of the defendant. 71. Keplevin is an action which can only be brought to recover goods which are unlawfully taken, or detained from the plaintiff. It has no exclusive ground of its own; be- ing concurrent throughout with trover, and fre- quently with trespass. It affords, however, when the goods can be found, a more efl&cient relief than either of those actions, since it puts the plaintiff' in possession of the property in dispute at the com- mencement of the proceedings, upon his giving security for its return should he fail in establishing his right. 72. The action of covenant is a form of proceed- ing devised to recover damages for the non-perform- ance of contracts in writing, under the seal of the party. In the ancient state (e) Stephens' PI. 19, xcii. cx.-cxiii.; 1 Chitty PI. 181- 185; Morris on Replevin, 68, et seq.; BuUer's Nisi P. 52; 3 Black Com., 140. (/) Stephens' PI, 16; 1 Chitty PI. 139-134; Fitzherbert's Nat. Brev. 340. IN CIVIL ACTIONS. 83 of society, when the majority of the people were ignorant of the art of writing, their acts could only be authenticated by the impressions of seals. The memories of illiterate witnesses were not to be trusted with the particulars of contracts. For these reasons, those under seal were the only con- tracts, not of record, which the law enforced, with the single exception of a contract for the payment of a liquidated sum of money. With this last it was thought the memory of a witness might be trusted, if the plaintiff was able to show any consideration or reason wherefore the defendant should pay him such a sum. Hence, probably, the action of cov- enant, which is universally applicable to contracts under seal, and the action of debt, which is uni- versally, applicable to the recovery of liquidated sums of money, covered, in ancient times, the whole ground of contracts remediable by the law. Other means have since been found for the enforce- ment of other contracts, but the boundaries of the action of covenant remain undisturbed. It is still appropriated to the enforcement of contracts under the seal of the party. It has no ground in common with any of the actions founded upon wrongs, be- cause they are not applicable to contracts — it is applicable to nothing else. It has no ground in common with scire facias, because that action lies only upon a record — covenant only upon a contract under the seal of the party. Having now men- tioned records, it will be well to remark that the technical signification of the word " record " is 84 EVANS ON PLEADING confined to the proceedings of courts, and does not extend to matters transacted out of court, although they may be afterwards recorded. Hence the re- cording of a written contract does not convert it to a contract of record. To entitle it to that charac- ter, it must have been first made in a court of record, or under its authority, in the ordinary course of its proceedings. To return to the action of cov- enant. It occupies no ground in common with assumpsit, because 'assumpsit lies only on contracts not under seal — covenant only on contracts under seal. Debt is the only action with which covenant has any common ground, or which can, together with cov- enant, be brought under consideration in the act of electing a remedy. It may be gathered from what has been before said that wherever a party has, by a contract under seal, bound himself to pay to an- other 3 liquidated sum of money, and violates his engagement, that the injured party may elect be- tween the actions of covenant and debt. To this rule, however, the case of a covenant to pay a liquidated sum as rent, seems to be an exception, No instance is recollected of an action of debt being brought on such a covenant, although the same rent may be recovered in an action of debt, without taking notice of the written obligation. 73. The action of debt is intended to enforce the payment of money, which a party owes, in Latin Debt. (0) <^^i^t- Now, in the judgment of the law, a party owes all sums of money (g) Stephens' PL 14; 1 Chitty's PI. 131-129; 2 Greenleaf Ev., 279. IN CIVIL ACTIONS. 85 which he is bound to pay, jn consequence of the judgment of a court of law, of the directions of competent legislative authority, of the relation which a tenant bears to his landlord, which the law calls privity, and regards as something diiferent from a mere contract, or lastly, in consequence of his own contract, whether of record, in writing under seal, in writing without seal, in words, or merely implied from the equity and good conscience of the case. In all these cases, the action of debt will lie. It also lies in two cases not naturally re- ducible, under any of the classes above enumerated. One of these, is the case of penal actions of debt, which owe their existence, not only as a class, but in every particular instance, to express statutory provisions. The legislature imposes a pecuniary penalty on a certain otfense, and by express words authorizes its collection by action of debt. The other class of cases, is that of actions iipon bonds with condition. It is very common to enter into a bond or written obligation under seal, to pay a liquidated sum, with a condition annexed to it, that if the obligor or party entering into the obligation, or another person, paid a less sum of money at a iixed day, or did or did not some other act or acts, the bond should be void. At common law, unless the condition was performed, the bond was forfeited; that is, became absolute, and an action of debt would lie upon it, as a stipulation to pay a liquida- ted sum. But, at present, the penalty of the bond, as the sum which the obligor engages to pay is 86 EVANS ON PLEADING called, is only regarded as a security for damages to the extent of the injury actually sustained by the plaintiff. A regulated action of debt, however, may be still sustained upon such a bond. If the condition be for the payment of money, the party injured by the non-payment, recovers out of the penalty, the sum which was, according to the con- dition, to be paid, with interest from the time when it should have been paid, and nominal damages be- yond the penalty for the detention of the debt. For in the action of debt, some damages are always given for the detention of the debt, although they are frequently nominal; that is, of no value. If, however, the real debt and interest exceed the penalty, the surplus is recovered as damages beyond the penalty. When the condition is that any per- son shall do or omit any act, other than the pay- ment of money, the bond is called a bond with col- lateral condition. The penalty is then regarded only as the utmost limit of the damages, and the plaintiff recovers no more out of the penalty, than a fair compensation for the loss he can prove him- self to have sustained, by the breach of the condi- tion, with nominal damages beyond the penaltj'. On a bond with collateral condition, more cannot be recovered than tlie amount of the penalty and nom- inal damages, although less may. 74. The action of debt occupies but very little exclusive ground. It is almost always an elective remedy. When the evidence of debt is a record, it is concurrent with scire facias; when it is an in- IN CIVIL ACTIONS. 87 strnment under seal, with covenant; when it is an instrument not under seal, or when it is not in writing, with assumsit. The only remaining grounds of the action of debt are statutes, and the privity between landlord and tenant. Where a man is bound to pay a sum of money by a statute, upon any other principle than that of a penalty, the action oi assumsit will lie as well as that of debt. With respect to the privity between landlord and tenant, it may be observed, that, technically speaking, it is an exclusive ground of the action of debt; yet, in fact, few instances occur of rent in arrear, in which there is not an election of actions. The action of assumsit, indeed, will not lie directly for rent, but if the demise or contract of renting has not been by deed, a compensation for the use and occu- pation of the property, which is precisely the same thing, may be recovered in assumsit. If the demise be by deed, the deed generally, indeed always, con- tains a covenant express or implied, iipon which an action of covenant may be brought. It may be well to remark, that no instance is recollected of an action of covenant being brought upon a bond with condition. If such an action were brought, the breach coiild not be assigned in the non perform- ance of the condition, because the party has not bound himself to perform the condition, but only to pay a sum of money if he does not. The breach could not now be assigned in the non-payment of the penalty, because, since the statute, the whole penalty is no longer to be paid, and, by bringing 88 EVANS ON PLEADING covenant, the defendant is deprived of the advan- tages he enjoys in the regulated action of debt. It is then remarkable, that penal actions and bonds with condition, the two cases which we observed did not naturally fall within the limits of the action of debt, are the only exclusive grounds of that action. This peculiar character they owe to their statutory origin. Statutes regulating their subjects arbitrarily, and not like unwritten laws upon sys- tematic principles. 75. We may also remark, that where the actions of debt and covenant are concurrent, debt is generally brought, except in the case of rent, in which instance, covenant is usually, but not always pre- ferred. When scire facias or assumsit are concur- rent with debt, debt is rarely brought. We have said, that debt lies upon a written contract, not under seal; yet there is high authority, that debt will not lie upon a promissory note. The meaning of this, however, seems to be only, that in debt a promissory note cannot be declared upon as a substantive cause of action, as a sealed instrument may, and as a promissory note may, in assumsit. It may, nevertheless, be used as evidence of a debt, which has been declared upon in another form. Debt is classed as an action, founded upon contract, because it is generally so founded; yet it lies upon a judgment, rendered against the will of the defendant, even though the original action were not upon a contract, upon penal statutes, and in some IN CIVIL ACTIONS. 89 other cases, scarcely reducible to the class of contracts. 76. Scire facias is an action which must be always founded upon a record, in the sense in which that word has been above defined. It ^i « » . SoireFacias. (A) is the proper means oi enforcing com- pliance, with all obligations of record, which do not furnish ground for an immediate execution ; whether from lapse of time, change of parties, or their own inherent nature. If the obligation, imposed by the record, be that of paying a liquidated sum, the party may, generally, elect between scire facias and debt. If the obligation be of a different nature,. scire facias is the only mode of proceeding. It is classed with actions founded upon contracts, but is not any more than debt, exclusively confined to injuries, reducible to violations of contract. Scire facias has no ground in common with any action but debt; they are the only actions which can be grounded upon a record. 77. The action on the case is divided into two grand divisions — the action on the case upon promises, and the action on the case upon /• 1 ■ Asaumpeit. (i) torts or wrongs. The nrst of tliese is more usually called the action of assumsit. The word assumsit means undertook, and the language of the declaration is, that the defendant promised (h) 3 Black. Com., 416-431; Coke 3nd Institutes, 469-472; 1 Chitty's PI, 26, 125, («•) Stephens' PL, 18; 1 Chitty's PI., 110-131, 148-163. 90 EVANS ON PLEADING and undertook. The legal definition of a promise or undertaking, is a contract not under seal, as that of a covenant is a contract under seal. In the gradual progress of civilization, a period arrived at whicli contracts were frequently made without seal, because the art of writing had become common among the business doing classes of society. The memories of witnesses also became more trus- worthy, as the bulk of mankind grew more intelli- gent. It then became necessary and proper to pro- vide some new means of enforcing the new species of contracts. The flexibility of an unwritten system, a quality certainly desirable, but unattainable in a written code, supplied the want, by adapting the action on the case to the purpose. The action of assumsit is precisely the counterpart of the action of covenant; both lie upon contracts of whatever nature the substance of the contract may be, pro- vided it be in the form to which the action has been appropriated. Covenant lies upon any contract under sqbI, assumsit uponany contract neither under seal, nor of record. The one exactly supplies the deficiencies of the other; they have, therefore, no ground in common, and no man can ever be called upon to make an election between them. There is no ground in common between scire facias and assumsit, because scire facias lies only upon a record, and assumsit •w\W,{-a. no case, lie on a record. Assumsit will not lie for any injury, other than a breach of contract; it has, therefore, no ground in common with any other of the formed actions. IN CIVIL ACTIONS. 91 except debt. The ground occupied in common by debt and assumsit, is very extensive; for it has been adjudged, that wherever a debt is proved to exist, the law will imply a promise to pay that debt, unless the party be under an obligation to pay, of a more solemn nature than a bare promise. Upon every such promise, assumsit will lie. It has been hinted, that the action of debt would lie only for a liqui- dated sum, and this was anciently true. At this day, a more liberal construction of the word debt is adopted, and every sum of money which one man owes to another is regarded as a debt, whether the precise amount be ascertained or not. This modern construction was first adopted in the action oi assum- sit, although not without hesitation. It has since been extended to the action of debt. It is, still, always necessary in debt, and frequently in assumsit, to declare for a liquidated sum, which sum it is, how- ever, not now necessary to prove, precisely as laid. For all debts then, according to the last definition of the word, assumsit will lie, unless the obligation upon which they arise is of a higher nature than a bare promise. The obligations which the law regards higher than promises, are judgments, con- tracts of record, or under seal, and the privity between landlord and tenant. The last differs only nominally from a promise, and we have seen that for the purpose of extending the remedy of assumsit, this technical difiiculty is permitted to be tech- nically evaded. Statutes directing the payment of money not as a penalty, are held to create a debt, 92 EVANS ON PLEADING and tlie law will imply a promise to pay such debt. Where the sum is directed to be paid as a penalty, assumsit will not lie, because the law will not imply a promise to pay a penalty, before the party has been convicted of the offense, and when he is con- victed the obligation to pay is of record. Assumsit has some ground in common with action on the case for wrongs. Where a party to a contract, not of record or under seal, has sustained damage, through the fraud, negligence, or unskilfullness ot the other party to the contract, the injured party has generally his election either to regard such injury as a breach of the contract, or as a snbstantive wrong, and consequently to choose his remedy between assumsit and case for the tort. 78. The action on the case for torts, lies for all injuries which consist in non-feasances or omissions, for injuries committed through negligence, for injuries to the property of the plaintiff in the defendant's possession, for all injuries to incorporeal rights, including reputation, for most injuries to the domestic relations, for the detention of personal property, for injuries effected without a direct interference with the person or property of the plaintiff, and, in general, for all injuries for which there is no other remedy. It occupies some ground in common with the actions of assumsit, and tres- pass vi et armis, as has been already stated, but none in common with any other action. IN CIVIL ACTIONS. 93 CHAPTEE VIII. JOINDER OF COUNTS, (a) 79. Intimately connected witli the subject of forms of action, is the docrine of joinder of counts, by which is meant the knowledge of what injuries may be joined together in one action. This is a doctrine by which the writers on pleading have been somewhat perplexed. Sir Francis Buller, m Brown vs. Dixon, 1 T, B. 276, lays down the following rnle: That whenever two counts admit ot the same plea and the same judgment, they may be joined. This, liowever, is a very imperfect rule. The converse of it is not true, and counts may be joined which do not admit of the same plea. In the action of debt, counts may be joined upon records, upon contracts under seal, and upon contracts without seal. Yet these counts require three general issues. To the first class, nul tiel record, no such record; to the second, non est factum, that the writing alleged is not the deed of the defendant; to the third, nil debet, that the defendant owes nothing to the plaintifi". That the plea meant in the rule is the general issue, is manifest from the context. 80. Doubtless the original rnle was, that counts {a) Stephens' PI. 33,367, cxvii.; 1 Chitty's PI. 331, 339; Gould's PI. iv. 5! 4; Bacon's Abr. Actions in General, C. ; Idem Pleas, etc., B. 1 ; 3 Thomas' Coke's Littleton, 361. 94 EVANS ON PLEADING in the same form of action might be joined, but that those in different forms of action might not. And the foundation of the rule was this: Every individual action, that is, every proceeding for set- tling a particular controversy, was anciently founded upon an original writ, issued out of chancery, di- rected to some sheriff, and returnable to the court which was to decide the controversy. Every form of action, had its peculiar form of original writ, and the form of the writ determined the form of the action. It was impossible that one action could be grouiided on two writs, or that one writ could be in two forms ; consequently there could be no joinder of counts, sounding, as the phrase is, in two differ- ent forms of action. This reason applies to all actions, except scire facias^ which has no original writ, but which may be regarded as out of the ques- tion, since in scire facias there can be no joinder of counts, because every ^^r(^ facias must be founded on a distinct and individual record. 81. The doctrine of original writs, perhaps, re- quires some further explanation, to make intelli- gible what has been said. This expla- Origmal writs, ° . .,, , , . . t ,. nature and nation Will be bcst ffiveu by the aid of form of. mi c n 1 examples. The form of the original writ in debt, is a command to the sheriff, to com- mand the defendant to render unto the plaintiff' such a sura of money, which to him he owes, and from him unjustly detains; and if he will not, to summon him to court to show his reasons for re- fusing. The form of the original writ in covenant, IN CIVIL ACTIONS. 95 is a command to the sheriff, to command the de- fendant, that he perform to the plaintiff the cove- nants which he has made with him; and if he will not, to summon him to court to assign his reasons for refusing. Now it is manifest, that if the plaintiff has obtained an original writ in debt, he may, when he comes to declare, break down the sum into smaller ones, and frame a count upon each of those smaller sums, in any manner which he may choose, that is consistent with the averment, upon which the original writ was grounded. It is equally mani- fest that he is not warranted by his writ, in com- plaining of the non-payment of the money as a breach of a covenant or promise, and still less, in complaining of any other injury than the non-pay- ment of money. As the writ is the only founda- tion of the action, counts not warranted by the writ are impertinent. So if he has obtained an original writ in covenant, he may, in his declaration, espe- cially if the word in the writ, be covenants in the plural, state as many different covenants as he may think proper, and as many breaches of each cove- nant as it may be possible to imagine. All of which will give rise to so many different counts. But he cannot insert a count complaining of the non-pay- ment of money or any other act, considered in any point of view, other than that of a breach of cove- nant, because his original writ only complains of a breach of covenant. 82. In the action of trespass, the form of the original writ is somewhat different. That action 96 EVANS ON PLEADING Subdivision of applies to so great a variety of injuries, actions. tjjat it was not practicable to invent any general phrase describing them all, as has been done in the cases of debt and covenant. It then became necessary, after stating the general character of the action, by the phrase vi et xrmis, to give a short statement of the particular injniy which was in- tended to be the subject of complaint in the action. Approved forms of such statements, in the cases of most frequent occurrence, were inserted in the Register of writs. The necessity of speaking fre- quently of such usual modifications of the action of trespass, procured for some of them particular names, as assault and battery, quare clausum fregit, de bonis asporiatis. Some modiiications of the action on the case have, from similar causes, at- tained the dignity of names, as slander, trover. But these actions, as they are improperly termed, for they are only modifications of the two actions of trespass vi et armis, and trespass on the case, were susceptible of being joined with each other, and with other forms of their respective actions, which being of less frequent occurrence, have not acquired distinguishing appellations. For the origi- nal writ after its usual formal beginning, might recount as many injuries, as the plaintiff" thought proper to suggest; always, however, taking care, tliat none of them were at variance with the com- mencement of the writ. That is to say, if the writ commenced vi et armis, that all tlje injuries enu- merated, were such, as in contemplation of law, are m CIVIL ACTIONS. 97 committed with force, and if it commenced without those words, that no injury was inserted, whicli the law considered forcible. This was considered a sufficient compliance with the rule, that no writ could be in two forms. The party who obtained such a writ, could, of course, insert in the declara- tion, counts appljnng to every injury, stated in the writ, and to no other. Afterwards, the form of the original writ, in case, was changed, and the writ, instead of setting out the injury complained of, only described the action as an action of trespass on the case, etc. The plaintiff, in such an action, was then held to be within the bounds of his writ, while he kept within those of the action on the case, and might vary his counts as he pleased, taking care that every one of them was a count in case. But the action on the case having tliis peculiarity, that it lies both for torts and upon contracts, the judges thought the old rule too loose, with relation to an action of so extensive a nature. They, therefore, undertook to restrain its vagrant character, by de- ciding, that although he who had obtained an original writ, in case, might elect between the two great divisions of the action, he should not elect to use them both. Still confining himself to the divis- ion which he had chosen, he might vary his counts as he thought proper. 83. The original writs are now generally disused. In most of the United States they are abolished; in England the issuing them is evaded °S*a7£i^ by a variety of ingenious contrivances, fllf^ v^ac- 98 EVANS ON PLEADINa to which the courts lend all the countenance they can. Causes are now generally commenced with a writ icontrived formerly to punjsh the contempt of court committed by the defendant in disobeying the mandate of the original writ. In this writ the English courts tolerate the union of all kinds of actions, or the reciting of such a sup- posed original writ as never could have existed. When the defendant has been brought into court they permit the plaintiff to declare against him for injuries, and in forms of action not mentioned in the writ. The only check to this license is that furnished by the statutes regulating bail. These compel the insertion in theTwrit of the true form of action and the filing an afGdavit of the cause of action, under pain of losing the security of bail. But if the plaintiff is satisfied with the defendant's own security, he may issue a writ in one form of aqtion, and file a declaration in another. But still, when the declaration is filed, it is necessary that it should be confined within some limits, and the same courts which permit the joinder of inconsist- ent actions in a writ, forbid it in a declaration. But as the original writs no longer issued, and the writs by which causes were really commenced, were not subject to the rule wJiieh confined the old orig- inals to a single form of action, it is not wonderful that men lost sight of the ancient rnle and its reason. The courts were then to seek a new rule. The difficulty about one seems to have arisen chiefly from considering the several varieties of trespass IN CIVIL ACTIONS. 99 and case as diflferent species of actions. The rule which has been adverted to is formed precisely to meet such a difficulty. That branch of it which relates to the plea serves to distinguish between the two grand divisions of the action on the case. The other branch of the rule, which relates to the judg- ment, serves to distinguish between case and tres- pass. For in trespass, it was usual, formerly, be- sides the damages, to impose a fine for the unlawful force; and the traces of this practice are still to be perceived in the form of the judgment. Beyond the limits of trespass and case, this rule is entirely useless. 84:. The ancient rule is still sufficient and the best. It may be stated in this form — that no two or more counts may be joined which Baron Giibcfs do not belong to the same form of ac- ^^^- ^*^ tion, but that all counts may be joined which do belong to the same form of action, except in actions on the case, where counts sounding in tort cannot be joined with counts sounding in contract. The substance, though not the language of this rule, has the authority of Chief Baron Gilbert, in the beginning of his Hiatory and Practice of the Common Pleas. The forms of the original writs are there also assigned as the reasons of the rule. 85. To this rule, it is said, there are two excep- tions. The first is, that detinue, an obsolete form of action for the recovery of personal 1 . . 1 V,, 1 ,\ T, , BxceptiopB. property, may be joined with debt. But (6) Gilbert's Com. Pleas, 5, 6, 7. 100 EVAKS ON PLEADING tbia exception, a& it ia called, proceeds on the strp- position that detinue is a variety of debt, and this supposition i& borne out by the form of original writs in the register. This case, however, though not properly an exception to the received rule, is not governed by it; for the general issue, in detintie, differs from that in debt, 86. The other exception to the old rule is eject- ment. Ejeetment, in its origin, was, certainly, a modification of trespass m et armis, and yet it can- not now be joined with other varieties of that action. Ejectment, in its primitive form, might, certainly, so have been joined, and might probably still be so joined, if anybody thought proper. But the primitive form of ejectment has been, in prac- tice, entirely superseded by the modern fictitious form of ejectment. This modern form cannot be joined with other varieties of trespass vi et armis, because its fictitious parties, and the other fictions of law connected with it, have made it the creature of the courts, who will not permit tiiose fictions to be applied to any purpose other than those for which they were originally contrived. For these reasons, ejectment is now treated as an independent and distinct form of action, and it is so practically, although in theory only a modification of trespass. 87. The origin of the joinder of counts has been explained, and the rule by which it is governed laid Use ana effect d recuparet, 254. curing defects by, 263. arrest of, 48. nan ohstante, 48. INDEX. 321 Juries, infallibility of, 1S5. hypothetical dlrectioas confuse, 185. Judges, fallibility of, 134. Matekialitt, what it is, 69. several kinds, 70. with relation to parties, 73. with relation to the form of action, 73, 105. proposed reform in, 193. Mixed questions of law and fact, 144. causes of, 151, 183. prevention of, 163. Negative, pregnant, 156. New matter, pleadings showing, 24. singleness in pleadings showing, 60 New assignments, 17. OB.TECTS of pleading, 130, 143. Objections to special pleading, 133. Oyer, 30, 33, 330. Original writ, nature and form of, 94. disused; English practice, 97. Peksonal injuries and declarations for, 366, 369, 371. Pleas in bar, 333. Profeit, 30, 339. Protestation, 333. Pleading, objects of, 7, ISO, 143 science of, 9. various kinds of, 17. objections to, 138. qualities of, in general, 57. looseness in, 108. 31 322 INDEX. Pleading over cures defects, 348. on plats, 287. conclusions of, 25. complexity of, 139. redundancies of, 151. and hypothetical directions compared, 149. reforms in the rules of, 193. Property, injuries to and declarations for, 375. Quod recuparet, judgment of 254. Qualities of pleadings in general, 57. Repusnahcy, 204 Replevin, 82. Record, traverse of, 48. Remedies, doctrine of, 3^ Revision of decisions, 126. in England, 127. in the United States, 139. 1-teputation, injuries to and declaration for, 369. Relative rights, injuries to and declarations for, 3G3. Scire facias, 89. Singleness, its nature, 18, 59, 305. in pleadings showing new matter, 69. in traverses, 61. as to the number of pleadings, 61. several issues in same plea, 64. several breaches, 66. Similiter, its form and use, 36 Special traverse, 37. the inducement, 37. issue in, 31. form of, 48. examples of, 39, 35, 3T. IKDEX. 32a Special traverse, how to obtain an issue on, 31, does not tender issue, 32. of irrelevant averments, 313. Stephen's Rules, 200. Systems of law, resemblance of, 1. Technical terms, ambiguity from, 175. origin of ambiguity, 181. double construction, 180. Torts, distinction between actions on contract and, 265. Trover and conversion, 103, 300. declaration and issue, 302. proposed reform, 303. trespass contrasted with, 103, 116. Traverse, 24. objects of common, 24. singleness in, 61, universal general, 199. general, 24. special, 27, 31. the inducement of a special, 37. of a record, 48. Trespass on the case, 103. ««■ et armis, 78. contrasted with trover, 103, 116. Truth of pleadings, 73. Venue, 235. Wager of Law, 305. Writ, nature and form of original, 94, 196. disused, English practice, 97. i