^Sf3r.:Ki^i3 v>. - ». QJorupU ICaui Btl^aal ICibtary Cornell University Library KF 8870.B64 A treatise upon the law of pleading unde 3 1924 020 178 780 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020178780 A TREATISE trPON THB LAAV OF PLEADING ■UNDER THE CODES OF CIVIL PROCEDURE OP THE STATES OF New Tokk, Ohio. Tntiivxa. Tvkxtucky, Wiscon-sin, I^rtNxEsoTA, Iowa, Missotjri, Arkansas, Kansas, Nebraska, California, Nevada, Ouegox, Col- orado, XoRTH Carolina, South Carolina, and Florida, AND THE TkRRITORIES OF DAKOTA, WYOMING, Montana, and Idaho. By PmLP:MUN BLISS, LL. D., Professor of Law in the Misauuil State University, and late Judge of the^Siiprenne' Court of Missouri, '^ "'' ' •' ST. LOTUS: F. H. THOMAS AND COMPANY. 1879. S^4 mif^n Entered according to Act of Congress, in the year 1879, l)y PHILEMON BLISS, LL. D., In the office ol the Librarian oJ Congress, at Washington. St. Louis: Press of G. I. Jones and Company. PREFACE. Instead of looking upon the code system of pleading, so called, as rationalising that of the common law, as still being precise and rigid in its requirements, but as basing them upon the strict rules of logic applied to the facts and the legal principles in- volved, instead of a logic founded, to a great extent, upon forms, formulas, and fictions, it is often, if not generally, regarded as an abandonment of all system. The law of pleading, when fol- lowing the common-law mode of statement, commanded the earnest attention of every student. No one felt himself pre- pared to enter even upon the threshold of the profession until he had mastered the subject, and to be a good pleader gave one an advantage and a rank among his fellows to be acquired by no other single accomplishment. But the new system has by many been supposed to be so simple as to require no previous study. All forms are abolished. It is assumed that any one can state the facts which constitute his cause of action in ordinary and concise language, and, with this idea, young men rush to the bar without any intelligent conception of the multitude of questions involved in a statement of a cause of action , or in meeting such statement. It is bad enough for those who have a reasonably good academic education ; how much worse for those who crowd the profes- sion without any adequate knowledge of language, and with but the faintest notions as to sequence of ideas. They might learn something of forms, and would be compelled to under the old system ; but logical conceptions connected with the sub- stantive facts of each case involve something more than forms, iii IV PEEFACE. and the power to grasp them seldom comes by nature. It is much easier for a person of dull apprehension to become a toler- ably good pleader under the old system than under the new. Influenced by these considerations, upon the opening of the Law Department of the Missouri State University, I determined to give special attention to the subject of pleading, and in pur- suance of this design, in addition to the study of the common- law and equity systems, I have given a yearly course of lectures upon the changes made by the Code. Encouraged by the solic- itations of those who had heard the lectures, as well as the sueo-estions of some of the leading members of the Missouri bar, I soon determined to embody their substance in a Treatise upon Pleading applicable to all the states whose system conforms sub- stantially to that of New York. With this view I examined the several Codes of Procedure and the local decisions concerning them, arranged the plan of the work, and had a little more than half completed it when the Treatise of Mr. Pomeroy appeared. Its perusal gave me the liveliest pleasure ; I felt that a great want had been supplied, suspended my own work, and it was a long time before I could obtain my own consent to resume it for other than class purposes. With regard to the manner of discussing the subject, I have had a twofold object in view : iSrst, to make the work a practical one by giving the ruhngs of the courts when called on to give a construction to the provisions of the Code, and also to aid the bar in viewing the new system from a scientific stand-point by giving the foundation and object of its rules ; and to this end I have not hesitated to criticise judicial views when they did not seem in harmony with the system. We have two classes of text- books — digests and commentaries ; the object of one being to embody judicial opinion upon given subjects, and of the other, to discuss principles, although always with deference to such opinion. The brief period since the adoption of the new system PREFACE. V in some of the leading states — long enough, one -would think, yet brief compared with the reign of the old — has not afforded time for a full settlement of the questions involved. It took centuries to crystallize the common-law system, and with no dis- turbance from independent jurisdictions, while that we are now considering has been followed, even in New York, but a little over twenty-five years, and in most of the states for a much shorter period. Instead of a single authoritative tribunal, whose decisions alone are reported, we have had, and still have, in New York alone, the Supreme Court, with its many circuits, and the courts of New York City, all whose decisions, with their multitude of judges, and necessarily conflicting opinions, are regularly re- ported. Then we have the appellate court of the state, and the appellate courts of seventeen other states whose Codes of Pro- cedure conform substantially to that of New York, each ex cathe- dra delivering opinions by the volume. There has been more harmony than could have been expected, and yet there has been harsh discord. There has been not only a want of harmony, but almost a universal halting, in fully accepting the new system with all its logical sequences, and the chief reason — that which rendered it impossible at once to appreciate the full scope of the change — was the fact that the profession had become saturated with the learning of the old . It was universally looked upon as embody- ing the perfection of logical statement, and there was hardly an English or American writer upon general jurisprudence who could resist the temptation to go out of his way to eulogize it. Its logical character, its singleness of issue, — a mere form when tendered by the general issue, — its artificial style, its classifica- tion of actions with corresponding formulas, even the fatal efiect of an error in selecting a form of action which ought in no way to aflfect the plaintiff's right or the defendant's liability, and other peculiarities of a merely technical and artificial character, were 71 PREFACE. themes of universal praise. It is no wonder that the legal mind became inspired with reverence for the system, and that propo- sitions for disturbing it seemed like attacking the bulwarks of the law itself. When bold reformers succeeded in so influencing legislation as to afiect the change, they did not always find a cor- responding sympathy in the courts, and it is believed that a majority of the judges in the several states viewed it with dis- favor. Familiarized with the technics and formulas of a sys- tem to a large extent artificial, deeply impressed with its real excellencies, and confounding with them what was merely formal, at home upon all questions that could arise under it, it is no wonder that so many looked upon its loss as upon the burial of an old friend, and upon the novel substitute with timidity and distrust. Most, perhaps all, have sought in good faith to give effect to the new legislation, but it would be too much to expect at once a cordial sympathy ; far too much to look for an imme- diate surrender of habits of thought that had become part of their intellectual constitution. It is right, it is necessary, under our system, that judicial opinion should be treated with more than mere respect. It is one of the recognized sources of law. It is called interpreta- tion ; it is often legislation. The courts are not unfrequently called on to apply principles to new classes of facts, and thus to make new rules — analogous they should be to the old, but still they are new. And they are sometimes called on, in view of new conditions, new developments, or enlarged ideas of justice, to change those which have been hitherto followed. The in- stincts of the bar and the bench are eminently conservative, and there is little danger of going too fast or too far in this direction. Courts sometimes, and especially when judges are chosen by political caucuses, are expected to echo party or popular senti- ment, and without much regard to law or justice ; but the in- stances where they have thus yielded are exceptions. That rev- PEErACB. Vll erence for law wMcli has so distinguished English-speaking peoples, and without which free government is impossible, has hitherto preserved us from many gross instances of the betrayal of judicial trusts. Courts are far more prone to look with jeal- ousy upon radical legislation, and to limit as much as possible the scope of fundamental changes. The statute expressly re- quires that the provisions of the Code shall be construed hberally in furtherance of its ends, and still, the notion that statutory changes in the common law must be construed strictly has be- come so ingrained in the legal mind, as, in spite of the require- ment, to be often unconsciously applied to the Code. To this conservatism, as well as the disfavor or timidity with which the new system was received, we owe the fact that some of the rules peculiar to that of the common law, and opposed to the spirit of the new, are still cherished by some of our best courts. Judicial opinion is becoming more and more harmonious ; it will necessa- rily follow the progress of the bar ; and, to aid in viewing the new rules from a rational stand-point, I have felt at liberty occa- sionally to give my own conclusions with more freedom, although differing from the conclusions of some who, for the time, are clothed with judicial power, than I would have ventured to take in regard to any other title of the law. The author fully appreciates the difficulty in procuring the full appreciation of a system apparently new, and, anticipating the subsequent confusion, would have preferred such a modification of the old as has been adopted in England. But this system is in fact not new ; it is not even wholly so as compared with that of the common law, and scarcely a rule is embodied in it the substance of which had not long prevailed in the courts of equity. This fact it seems almost impossible to appreciate, and the chief trouble has arisen from forgetting it, from viewing the Code in the light of common-law learning, from not being able at once to take in the idea that a statement of facts which con- Vlll PREFACE. stitute a cause of action instituted for the recovery of money, or of specific property, can be governed by the same rules, so far as applicable, that control the pleader when seeking equitable relief. And yet we no longer have the bill in chancery. The common-law and equity systems cpnverge in that of the Code. We have the frame-work, the directness, of the former, its dif- ferent statements or counts, its ultimate instead of probative facts, and the truthfulness, the reasonableness, the realness of the latter. I have given no precedents. Indeed, had I room, I know not how they could be of much real service. The pleader has to do with substance and not with forms. There are no "approved modes of expression" to be copied ; no formal general statements which are assumed to cover the cause of action whether they do or not; no formulas or fictions as applied to, and to distinguish, diiferent forms of action ; no crystalized modes of opening and closing ; no constantly recurring venue, whether real or fictitious ; and it was chiefly these which rendered precedents necessary. It is more necessary than before for the pleader to be a good and careful lawyer ; also that he should be able to write good English. His knowledge must be substantial, and, in studying his state- ment, he studies his case. He must know what issuable facts will constitute a cause of action, and must put them on paper, and put there nothing else. One who becomes thoroughly familiar with- the principles illustrated in this work cannot but become a good pleader — that is, if he understands his case. But an occasional reference will not answer. He must study them, and with the earnestness formerly brought to bear upon Grould, Stephen, Chitty, Mitford, and Story. I have endeavored to avoid questions of practice, except where their consideration seems to be necessary, as in treatino- of reme- dies for defective pleading. My original purpose was, after the manner of Mr. Stephen, to give, in a separate part, the proceed- PEEFACE. IX ings in an action, and I went so far as to write it out. But I have been induced to omit it ; first, because it would swell the boolt to an inconvenient size, my desire being to make it as small, and convenient to handle as is consistent with its object; second, the fact that practice and pleadings are distinct subjects, though closely allied ; and, third, the difficulty in giving the his- tory of an action that could be of much value outside of one or two states. The practice so varies as to render a book of practice necessary in each state, and there is scarcely one that does not possess such local works as meet all practical wants. The reader in each state will find that I have passed by, with- out special notice, some provisions relating to pleading, and per- haps some pet ones, found in his own Code. It would be impos- sible to note every thing ; but I have endeavored to discuss the general principles of pleading common to all the Codes, at the same time noting such peculiarities in each state as seemed called for in the discussion of any particular subject. I would have done more but for two reasons : first, I have desired to discuss the code method as a system without much regard to local pecu- liarities ; and, second, I have been constantly apprehensive of malving the work too large. But for the desire to keep it within reasonable limits I should not only have given more attention to such peculiarities, but should have given more examples of the application of general rules, and ha,ve been more full in my cita- tions. In regard to authorities, the reader will note that, as to many elementary matters, I have sometimes cited none, and at other times only one or two, where they could be given by the page ; it would seem that, by this time, some things might be taken for granted. And I have also not hesitated to cite standard works of recognized authority, as Chitty's Pleadings and Story's Equity Pleadings, rather than to unnecessarily lumber the notes with cases. But upon new questions, and all questions involved in X PREFACE. the construction of the Code, I have relied upon no text-book, but have carefully studied the reports. As to points that are undisputed, the citations are not full — it would be folly to give decisions that simply affirm the language of the statute, as much so as those which only recognize legal truisms — but when there is a doubtful or disputed point, where there is room for construc- tion, I have endeavored to give all the authorities. My citations from Chitty's Pleadings are from the fifteenth American edition. In the sixteenth edition many things are omitted pertaining to common-law pleading as it existed in England before the changes made by the Hilary Eules, and the paging is also changed. I have used Heard's edition of Stephen on Pleading; unfortunately Tyler's edition has omitted the original paging. I have cited most of the State Codes by the number of the section when they are numbered consecutively, and without reference to the editions of general statutes in which they may be found. "Where there has been a revision and a change in the numbering within a few years past, I have given the year, as well as the number of the section. The word " complaint" is the statutory term in most of the states for the plaintiff's first pleading, and for that reason I have generally used it instead of " petition." P. BLISS. Columbia, Mo., October 1, 1878. TABLE OF CONTENTS. PART I. OF THE ACTION. Chapter I. Of the Natttkb Aino Eokm of Actions. n. Of Electiok between Actions. m. Of Parties to Actions. 1. Parties Plaintiff in Actions founded on Torts. IV. Of Parties to Actions — Continued. ^. Parties Plaintiff in Actions founded on Contract. V. Of Parties to Actions — Continued. S. Parties Plaintiff in Actions for equitable Relief, VI. Of Parties to Actions — Continued. 4. Defendants in Actions founded on Torts. Vli. Of Parties to Actions — Continued. 5. Defendants in Actions founded on Contract. VIII. Of Parties to Actions — Continued. 6. Defendants in Actions for equitable Relief. 12. Or Joinder of Causes of Action. CHAPTER I. Of the Nature and Foem of Actions. Section 1. The Terms "Civil Action" and "Cause of Action" defined. 2. Common-law Actions, how instituted and named. 3. Equitable Actions. 4. Name and Form of Actions under the Code. 5. Continued. 6. Classification not dispensed with. 7. Continued — Illustrated hy Suits in Equity. 8. The Distinction between Covenant, Debt, and Assumpsit not preserved- 9. The natural Classification of Actions. 10. We still may speak of legal and equitable Kelief. xi Xli TABLE OF CONTENTS. CHAPTER II. Of Election between Actions. Section 11. The Eight of Election distinguished. 12. The Right not essentially changed. 13. The Eight to waive the Tort in Conversion of personal Property. 14. Where there is both a Contract and a legal Duty. 15. Election in fraudulent Sales, and for Money obtained by Fraud. 16. Where the Wrong-doer has repudiated the Contract. 17. Election between Actions upon Contract of a different Nature. 18. Election between Actions for Money and for equitable Relief. 19. Considerations that should control the Election. CHAPTER III. Of Parties to Actions. 1. Parties Plaintiff in Actions founded on Torts. Section 20. Scope and Order of the general Inquiry. 21. The general Rule. 22. Plaintiffs in Trespass upon Land. 23. Plaintiffs in Injuries to Personal Property where the Owner is not in Possession. 24. As to Joinder of Plaintiffs. 25. Continvied — In Real and Mixed Actions. 26. Continued — In personal Injuries. 27. Continued — In Injuries to married Women. 28. Injuries to Servants — Seduction — Rights of Parent for Injuries to Minors. 29. The Minors may also sue. 30. Parties as authorized by Statute. 1. In Seduction. 31. Continued — 2. When the Injury causes Death. Lord Campbell's Act. 32. Continued — 3. Other similar Provisions. 83. Continued — 4. In Waste. 34. Continued — 5. Joinder of Husband and Wife. 35. Continued — 6. In Injuries to separate Estate of married Women. 36. Continued — 7. In Injuries to same held under Married Women's Acts. 37. The statutory and trust Estate further considered. 38. As to Assignees of Rights of Action arising from Torts. 39. What Eights of Action so arising survive under the Statute of 3 Edw. III. 40. Statutes in the several Code States — New York, Missouri, Arkansas. 41. Same Subject — Statutes in Ohio, Kansas, Nebraska, Indiana, and Iowa. 42. Same Subject — Statutes in Wisconsin, Kentucky, Oregon, and Min- nesota. 43. Construction of these Statutes. 44. When does a personal Claim become a Debt. TABLE OF CONTENTS. XUl CHAPTER IV. Of Parties to Actions, continued. 2. Parties Plaintiff in Actions founded on Contract. Section 45. In Actions by Assignees, the equitable Kule adopted. 46. The Exceptions. 47. What Contracts are assignable. 48. Contracts not assignable. 49. Indorsements and Assignments by Executors and Administrators. 50. The Mode of Assignment. 51. Indorsements and Assignments without actual Sale. 52. Who may be Plaintiffs other than Parties in Interest. 53. 1. Actions by Executors and Administrators. 54. 2. Actions by Trustees of an express Trust. 55. 3. By Persons with whom, or in whose Name, a Contract is made for the Benefit of another. 56. 3. Continued — An Agent merely, not authorized to sue. 57. 3. Continued — Cases where the Eepresentative may sue in his own Name. 58. 3. Continued' — May the Beneficiary also sue? 59. 3. Continued — The Extent of the Change made by the Code. 60. 4. By Persons expressly authorized by Statute. 61. Joinder of Plaintiffs — The general Rule. 62. Joinder of Plaintiffs in Common-law Proceedings. 63. Whether the Right is joint or several. 64. Assignment of joint Rights. 65. Parties in partial Assignments. 66. How should joint Obligees assign. 67. As to Joinder in Recovery of Rent by Tenants in Common. 68. Continued. 69. Continued — Parties under the Code. 70. Joinder in Actions by Distributees and Legatees. 71. Parties in Action concerning the separate Property of married Women. CHAPTER V. Of Parties to Actions, continued. 8. Parties Plaintiff in Actions for equitable Relief. Section 72. General Considerations. 78. Plaintiffs having a common Interest. 74. Continued — Legal Claims. 75. Continued — The Decisions as to Legal Claims. 76. The Principle governing the Joinder. XIV TABLE OF CONTENTS. Seotioit 77. Can an unwilling PlaintiflF be made Defendant in a legal Action? 78. Continued — The negative Answer considered. 79. Representation — The Kule. 80. Application of the Rule. 81. Representation in Actions to restrain illegal Acts of Public Officers. CHAPTER YL Of Parties to Actions, continued. 4. Defendants in Actions founded on Torts. 82. As to Injuries by more than one. 83. Instances of joint Liability, and when it is only several. 84. Slander necessarily single. 85. Injuries by the Wife. 86. As to Torts by the Wife in respect to her separate Estate. 87. Liability as Owners of Land. 88. Several Liability — Its Extent. 89. Indemnity and Contribution. CHAPTER VII. Of Parties to Actions, continued. 5. Defendants to Actions founded on Contract. Sbction 90. The general Rule. 91. Obligations, whether joint or several, or both. 92. Parties at Common Law, where the Obligation was joint. 93. Certain States make joint Obligations several as well. 94. Statutory provisions making several Obligations joint. 95. Construction of the Provisions named in the last Section. CHAPTER VIII. Of Parties to Actions, continued. 7. Defendants in Actions for equitable Belief. Section 96. Parties in Equity. 97. The statutory Rules. 98. Mortgages — Actions concerning them. 99. Parties in Suits to redeem. 100. Parties in Suits to foreclose. TABLE OF CONTENTS. XV SKCTloif 101. Continued — Subsequent Incumbrancers, and others. 102. Continued — In Case of Death of, or Assignment by, Mortgageor. 103. Continued — Other Interests 104. Statutory Foreclosure. 105. "When the Liability is joint. 106. Continued — The Rule under the Code. 107. The Decisions upon this Question. 108. In Suits for specific Performance. 109. Continued — As to outstanding Titles. 110. Multifariousness by an improper Union of Defendants. 111. Parties in other Actions, and whether one should be made Plaintiff or Defendanlj. CHAPTER IX. Or JoiNDEK OF Causes of Action in one Complaint or Peti- tion. Section 112. The Language of the Codes. 113. A Cause of Action — Facts constituting a Cause of Action' — Meaning of the Terms. 114. Different Modes of Eelief do not make different Causes of Action. 115. Continued — Illustrations. 116. Continued — The judicial View. 117. The Cause of Action must be between the same Parties in the same Eight. 118. As to splitting a Cause of Action. 119. The separate Statement. 120. Continued — Where there are two Causes of Action and one Eelief. 121. Completeness of each Statement. 122. The Causes of Action must be consistent. 123. Each Party must be affected. 124. Joinder under the old Systems. 125. First Class: Union of Causes of Action under — Meaning of the Term " Ti-ansaotion." 126. Continued — What is the Subject of the Action. 127. Second Class : Joinder of Causes arising out of Contract. 128. Implied Contracts. 129. Third Class : Injuries. 130. The Joinder where the Tort may be waived. 131. Fourth Class: Injuries to Character. 132. Fifth Class: Ejectment. 133. Eeplevin. 134. Claims against Trustees. XVI TABLE OF CONTENTS. PART II. OF PLEADINGS. Chapter X. General Considerations. XI. Of the Complaint ok Petition. The, Title — The Statement. Xn. Oe the Complaint — Continued. The Relief— The Oath. XTTT. Bulbs governing the Statement. 1. What should not be stated. XTV". Oe the Statement — Continued. S. Wh.at Facts must be stated. XV. Of the Statement — Continued. S. Mode of stating the Facts. XVI. Of the Answer. 1. The Denial. XVII. Of the Answer — Continued. S. Of the Defense of new Matter. y V III. Of the ANSWER' — Continued. S. Of Counter-claim.s. XIX. Of the Beply. XX. Of the Bembdies for defective Pleading. XXI. Defective: Pleading, how cured. CHAPTER X. General Conside rations. Section 185. Definition of Pleadings. 136. Pleading Facts necessarily implies a Proposition of Law. 137. The logical Formula — Illustration. 138. "Why are written Pleadings required? 139. Their JSnd not attainable under the Common-law System. 140. But Evidence need not be pleaded. 141. The old Systems must be understood. 142. Singleness of Issue a Fiction. CHAPTER XL Of the Complaint or Petition. The Title — The Statement. Section 143. The Order of its Parts. TABLE OF CONTENTS. XVU 1. The Title. Section 144. The Court and County. 145. The Names of the Parties. 146. The true Name should be given. 147. "Where the Name is unknown. Z. The Statement. Section 148. Scope of the present Inquiry — The introductory "Words. 149. The Inducement and Gist. 150. What Classes of Facts are Matter of Inducement. 151. Fictitious Allegations. 152. 1. The Fictitious Promise. 153. 2. In treating a Tort as a Contract, liow should the Facts be Stated? 154. The Right to so treat it inferred from an Enlargement of the Kemedy. 155. The Inquiry resumed. 156. 3. The common Counts — "When are they still permitted? 157. The judicial View. 158. 4. As to pleading Matters according to their legal Effect. CHAPTER XII. Of the Complaint, continued. The Relief— The Oath. 1. The Relief. Section" 159. The Eelief must follow the Statement. 160. When confined to the Eelief prayed for. 161. The Relief upon Answer, etc. — The general Prayer. 162. As to Mistakes — Whether the Relief should be legal or equitable. 163. Each Forum confined to its own Relief. 164. Inconsistent Eelief. 165. The full Demand to be stated. v 166. Full Relief in so-called equitable Causes — The old Eule. 167. The Eule undef the Code. 168. Continued — The Ruling in New York. 169. Continued — The Ruling in other States 170. Continued — The Doctrine in Missouri. 171. The Objection to this View. 2. The Oath. Section 172. Its object. 173. The Oath as required in certain States. CHAPTER XIII. Rules governing the Statement. 1. What sh,ould not he stated. Section 174. Classification of the Subject. XViii TABLE OP CONTENTS. RULE I. Facts which the Law presumes should not le stated. Section 175. Scope of the Kule. RULE IL Facts necessarily implied should not he stated. Section 176. Scope of the Rule. RULE in. Facts should not he stated of which the Court will take judicial Notice. Section 177. Classification of Matters to -which the Eule applies. 178. 1. Laws — International, commercial, ecclesiastical. 179. The Common Law, and old English Statutes. 180. When differently held in different States. 181. Of what Statutes will the Court take Notice — The best Source of Li- formation. 182. When are Statutes public? 183. As to private and foreign Statutes. 184. Private Statutes and the Code. 185. Treaties — Proclamations. 186. Civil Divisions within the State. 187. 2. Matters of general Notoriety, including the recognized Facts of Science. 188. The general Course of Nature. 189. Pacts of Geography — Existence and Location of Places. 190. Pacts of current History. 191. The Meaning of Words and Computation of Time. 192. 3. Pacts of a mixed legal and public Nature. 193. The Existence, Eelations, and Symbols of civilized Nations. 194. Legislative Bodies and their Journals. 195. Officers of State. 196. Courts — Their Otficers and Kules. 197. Official Seals. 198. Other Matters of Law and Notoriety. 199. 4. Matters peculiarly within the Court's Knowledge. RULE IV. One should not anticipate a Defense. Section 200. The Rule not a new one — Its Application. 201. Apparent Exceptions. 202. As to Exceptions and Provisos in Contracts and Statutes. 203. The Exception may be in a subsequent Clause. 204. The Eule as applied to the Statute of Prauds. 205. The Eule as applied to the Statute of Limitations. RULE V. Evidence should not he pleaded. Section 206. The Rule reasonable — Facts distinguished. 207. Illustrations. 208. Difficulties in applying the Eule. 209. Still, Matters of Law are not pleaded. TABLE OF CONTENTS. XIX RULE VI. Conclusions of Law should not be pleaded. Section 210. To be distinguished from Conclusions of Fact. 211. The Distinction in pleading Fraud and Negligence. 212. Some Instances of legal Conclusions. 213. A Pleading with this Vice sometimes held sufficient. RULE VII. No Fact should be stated which is not pertinent, and whose Statement is I not necessary. Sbctiok 214. Irrelevancy, Redundancy, etc. 215. Surplusage. CHAPTER XIV- The Statement, continued. 2. What Facts must he stated. Sectiok- 220. The class of Facts referred to. RULE I. The Complaint must show Title. Section 221. Definition of Title — To what applied. 222. 1. Title to real Property; and, first, in real Actions. 223. Continued — Statutory Action in Missouri, Ohio, Kansas, and Nebraska. 224. Continued — Statutory Action in New York. 225. Continued — Statutory Action in Indiana, Wisconsin, Iowa, Oregon, and Arkansas. 226. Continued — Kentucky, California, North Carolina, South Carolina, Nevada, and Minnesota. 227. Title to the Realty in other Actions. 228. Title in Actions founded on Leases. 229. When Title need not be shown. 230. 2. Title to Personal Property- — General Allegation sufficient. 231. 3. Title to Choses in Action — Non -negotiable Instruments. 232. Continued — Negotiable Paper — Striking out Indorsements. 233. Continued — Mode of alleging Title. RULE II. In Actions on Contract the Complaint must show Privity. SeCTIOK 234. Twofold Application of the Term. 235. Different kinds of Privity. 286. Privity between Landlord and Tenant. 237. Same — Created by Statute. 238. No Privity between Owner and adverse Holder. 239. Privity in commercial Paper. 240. No Privity in Torts. 241. Privity arising from Duty. 242. The two Branches of the Question considered. XX TABLE OF CONTENTS. Skctioit 243. Duty arising from domestic Obligations. 244. Privity by Election and Estoppel. 245. The Doctrine as applied to adverse Claimants to Land. RULE [II. In an Action by or against a Corporation, its legal Existence should be shown. Section 246. The Kule imperative, except when. 247. The Foundation of the Rule. 248. How shown in Common-law Practice. 249. This Practice not to be followed. 250. The New York Rule. 251. The Kule in certain other States. * 252. Etfect of acknowledging the Incorporation. 253. Language of the Courts upon this Question. 254. Welland Canal Company v. Hathaway — Its Points. 255. Continued — The Points examined. 256. As to Defendant's Interest in having tbe Plaintiff sue in his true Name. 257. Whether called Estoppel or Admission, the Pleading the same. 258. Otherwise, the Averment necessary. 259. Conclusions. 260. Eule as to Corporations Defendant. RULE IV. When Persons sue or are sued in a representative Capacity, the Authority or Relation must be shown, Sbction 261. Persons embraced in the Kule. 262. 1. Trustees of an express Trust, and Persons to whom a Promise is made for the Benefit of another. 263. 2. Assignees in Bankruptcy, or Insolvency, and Receivers appointed by the Court. 264. 3. In Actions by Executors and Administrators. 265. 4. Partnership Demands and Liabilities. 266. 5. In ordinary joint Eights and Obligations. 267. 6. Husbands, Committees, etc. RULE V. In Actions upon Contract, Consideration must be shown. Bkctioh" 268. The Rule and Exceptions at Common Law. 269. Exceptions by Statute. 270. Insufficient Consideration. 271. Consideration frivolous and impossible. 272. Illegality of Consideration. 273. Considerations immoral, or against public Policy. 274. Mr. Smith's Classification. 275. A Moral Consideration. 276. Instances of sufficient Consideration. 277. Why are executed Considerations insufficient? 278. Contracts executed by the Statute of Uses. 279. Contracts in Restraint of Trade. TABLE OF CONTENTS. XXI RULE VI. In seeking Relief other than by a Judgment for Money or for speeific Property, the Pleading should show that such Judgment cannot be obtained, or that it will not afford adequate Relief. Section 280. An old Eule in New Words. 281. Application of the Eule. RULE VII. When they are Material, Time and Place must be stated, and truly. Section 282. As to Time. 283. When is Time material? 284. The Rule as applied to Place. 285. Statutory Provisions in regard to Actions affecting the Realty. 286. Same in regard to other Actions. 287. Contracts, when enforced according to foreign Law. CHAPTER XV. Of the Statement, continued. 3. As to the Manner of stating Facts. RULE I. The Statement must not be double or multifarious. Section 288. Duplicity in Common-law Pleading. 289. Multifariousness in Equity. 290. The Eule under the Code. 291. The View in Wisconsin. 292. Same in New York. 293. The view in other Courts. 294. Certain Rules concerning Duplicity. 295. But one Statement is allowed of one Cause of Action. RULE II. Facts should be stated with Certainty. Section 296. Certainty as to Time and Place. 297. Property should be described with Certainty. 298. The common Counts. 299. Continued — The Count for Goods sold. 300. Certainty in pleading Estates. 301. Statutory Exceptions — 1. Conditions precedent. 302. Scope of the Provision. 303. Statutory Exceptions — 2. Pleading Judgments. 304. Statutory Exceptions — 3. Pleading private Statutes. 305. Statutory Exceptions — 4. In Libel or Slander. 806. Statutory Exceptions — 5. Pleading by Copy. 307. The Exception only applies to the Statement that "there is due him." 308. Other Exceptions — 1. In pleading Consideration. 309. 2. "No greater Particularity is required than the Nature of the Thing pleaded will conveniently admit." XXU TABLE OF CONTENTS. Section 310. 3. "Less Particularity is required when |the Pacts lie more within the Knowledge of the opposite Party." 311. 4. "LessParticularity is required in pleading Matter of Inducement." 312. 5. Sufficient to plead as before the Statute of Frauds. RULE III. Every Statement of a Fact should be direct and positive. Section 313. Scope of the Rule. 314. Ambiguity — Its Effect. 315. Repugnancy — Negatives pregnant. 316. Argumentative Pleading. 317. Hypothetical Pleading. 318. Recitals of Pacts. RULE IV. Facts should he stated in plain, ordinary, and concise Language. Sbotioh" 319. The Old Formulas abolished. CHAPTER XVI. Of the Answer. 1. The Denial. Section 323. The Statute. 324. The old general Issue. 325. The Denial— Its Object and Form. 326. Denial of Knowledge. 327. Pacts which may be proved under a Denial. 828. Continued Illustrations. 329. Continued. 830. Instances of Pacts which may not be proved under a Denial. 881. The Denial should be specific. 332. The Negative pregnant. 1 338. Argumentative Denials. 834. Denials of legal Conclusions. CHAPTER XVII. Of the Answer, continued. 2. Of the Defense of new Matter. Section 339. New Matter — Its Classification. 340. New Matter of Defense gives Color. 341. Nature of the Admission. 342. Consistent Defenses — The Rule in Equity. 348. Inconsistent Defenses under the Code. 344. Continued — The j udicial View. TABLE OF CONTENTS. XXUl Section 345. All Defenses should be in the same Answer. 346. As to the Manner of stating several Defenses. 347. Equitable Defenses. 348. Continued — Sometimes embraced in a Counter-claim. 349. Continued — Illustrations. 350. Continued — The View taken by the Courts. 351. The judicial View continued. 352. Defenses — When to be pleaded — The Rule. 353. The Statute of Frauds not to be pleaded. 354. Continued. 355. The Statute of Limitations. 356. Continued — In Ejectment. 357. Payment. 858. Continued — The judicial View. 359. In Libel and Slander — The old Law. 360. The Change made by the Code. 361. The Pleading — 1. The Justification. 362. Continued — 2. In Mitigation. 363. Continued — Must the mitigating Circumstances be pleaded? CHAPTER XVIII. Or THE Answer, continued. 3. Of Counter-claims. Section 367. Some general Considerations. 368. The Counter-claim not a Defense, except, etc. 369. The Statutes. 370. Recoupment and Set-off. 371. The first Class of Counter-claims in the first Subdivision. 372. The second Class in the first Subdivision. 373. The third Class in the first Subdivision. 374. Continued — The Authorities. 375. Continued — The Rulings in New York. 376. Continued — Indiana. 877. The second Subdivision. 378. Continued — Must the Demands be liquidated? 379. Continued — The Decisions. 380. Continued — Continued. 381. Continued — As to waiving a Tort. 382. Continued — Some Rulings not classified. 883. Equitable Counter-claims. 384. Continued. 385. Some so-called equitable Counter-claims are really Defenses. 886. A judicial Limitation upon Counter-claims made in New York. 387. Continued— Other Cases. 388. The View elsewhere. 389. Upon what is the Qualification based? 390. Cross-complaints or Petitions, XXIV TABLE OF CONTENTS. CHAPTER XIX. Or THE Reply. Section 393. The Statutes. 894. New Assignment. 395. Some general Considerations. 396. The Reply to the Defenses of Eraud, etc., in negotiable Paper. CHAPTER XX. Or THE Remedies for defective Pleading. Section 401. Object of this Chapter. 402. The Common-law remains. 403. Remedies under the Code. 1. The Demurrer. Section 404. Its Object and Scope under the Code. 405. 1. First, that the Court has no Jurisdiction over the Person of the Defendant. 406. Second, that the Court has no Jurisdiction over the Subject of the Action. 407. 2. That the Plaintiff has not legal Capacity to sue. 408. Continued. 409. Continued. 410. 3. That there is another Action pending between the same Parties for the same Cause. 411. 4. That there is a Defect of Parties Plaintiff or Defendant. 412. 5. That several Causes of Action are improperly united. 413. 6. That the Complaint ( Petition ) does not state Pacts sufficient to constitute a Cause of Action. 414. Continued. 415. Additional Grounds in certain States. 416. The Demurrer must distinctly specify the Grounds of Objection. 417. Some general Considerations. 418. What does a Demurrer admit? Section 419. Defects met by Answer. S. Motions. Section 420. Most formal Defects met by Motion. 421. Motion to strike out a frivolous Pleading. 422. Sham Pleading. 423. Irrelevant and redundant Matter. 424. Continued — Answers. 425. Uncertainty. TABLE OF CONTENTS. XXV Section 426. In respect to filing the Writing sued on. 427. Misnomer. 4. Amendments. Sbction 428. Amendments discretionary. 429. Limitations upon the power of Amendment. 430. Continued — As to Defenses. 431. Continued — As to unconscionable Defenses. CHAPTER XXL Defective Pleading — How cured. Section 435. The Basis of the Doctrine. 436. Defects that are Grounds of Demurrer. 437. Aider by the Pleading of the opposite Party. 438. Intendment after Verdict. 439. Continued. 440. Statutes in aid of defective Pleading. 441. The more specific Enumeration of Defects cured. 442. Aider after Verdict, as held under the Code. TABLE OF GASES CITED. Note. — The references are to the sections. Ahadip v. Carrillo, 32 Cal. 172. 299 Abbotts V. Barry, 5 Moore, 98, 154 Abraham v. Pleston, 3 Wend. 540, 263 Acheson «. Miller, 2 Ohio St. 203, 89 Acker v. McCuUough, 50 Ind. 447, 417 Ackley v. Tarbox, 31 N. T. 564, 36 Adams. I'. Bissell, 28 Barb. 382, 126 V. Childers, 10 Mo. 778, 23 V. Hall, 2 Vt. 9, 83 V. Holley, 12 How. Pr. 326, 212, 213 V. Sage, 28 N. Y. 103, 15 V. Sherrill, 14 How. Pr. 297, 802 Adams Express Co. v. Eeno, 48 Mo. 264, 273 Adamson v. Jarvis, 4 Bing. 66, 89 Agard v. Valencia, 39 Cal. 292, 109 Agate V. King, 17 Abb. Pr. 159, 887, 389 Agnew V. Bank of Gettysburg, 2 Har. & G. 493, 248 Ainsworth v. Bowen, 9 Wis. 348, 374 Akerly v. Vilas, 21 Wis. 88, 374 , 25 Wis. 703, 412 Alder v. Bloomingdale, 1 Duer, 601, 302, 306 Alderson v. Bell, 9 Cal. 315, 199 Alexander v. Burnham, 18 Wis. 199, 199 Allaire v. Whitney, 1 Hill, 484 ; s. c, 1 Comst. 305, 370 Allen V. Brown, 44 N. T. 229, 51 „. Fosgate, 11 How. Pr. 218, 95 „. Haskins, 5 Duer, 832, 367 V. Maddox, 40 Iowa, 124, 382 V. Patterson, 8 Seld. 476, 152, 207, 213, 299, 814 V. Randolph, 48 Ind. 496, 424 V. Hanson, 44 Mo. 263, 430 V. Shackelton, 15 Ohio St. 145, 374, 383 Allen V. Watson, 16 Johns. 205, 176 Allis V. Leonard, 46 N. T. 688, 831 Allison V. Chicago & Northwestern E. Co. 42 Iowa, 274, 352 All Saints Church v. Lovett, 1 Hall, 191, 252, 253 Alnutt V. Leper, 48 Mo. 319, 411, 415 Alpin V. Morton, 21 Ohio St. 586, 41 Alston V. Wilson, 44 Iowa, 130, 418 Amburger v. Marvin, 4 E. D. Smith, , 893, 812 Ammerman v. Crosby, 26 Ind. 451, 145 Ancell V. City of Cape Girardeau, 48 Mo. 80, 411, 415 Anderson v. Biddle, 9 Mo. 580, 188 V. Hill, 53 Barb. 238, 125 V. Johnson, 8 Sandf. 1, 339 Andrews v. Bond, 16 Barb. 633, 328 V. Gillespie, 47 N. T. 487, 350 i;. MoDaniel, 68 N. C. 385, 50 V. Mokelumne Hill Co., 7 Cal. 830, 77 Andrus v. Foster, 17 Vt. 556, 128 Anonymous, 2 Halst. 160, ' 421 Anson v. Anson, 20 Iowa, 55, 101 Appleby v. Elkins, 2 Sandf. 678, 233, 421 Armstrong v. City of St. Louis, 3 Mo. App. 100, 165 V. Hinds, 8 Minn. 254, 182 V. Miller, 6 Ohio, 118, 80 Armington v. The State, 45 Ind. 10, 417 Armitage v. Pulver, 37 N. Y. 494, 162 Ashby V. Winston, 26 J\Io. 210, 411, 415 Atkins V. Amber, 2 Esp. 493, 59 Attorney-General v. Poote, 11 Wis. 14, 418 Atwater v. Schenck, 9 Wis. 160, 198 Atwell V. Cook, 9 B. Mon. 358, 51 xxvii xxvm TABLE OP CASES CITED. Atwell V. Forbes, 2 Myl. & Cr. 123, 81 Atwinger v. Pellner, 46 Mo. 276, 305 Austin V. Monro, 47 N. Y. 360, 117 Averett v. Thompson, 15 Ala. 678, 180 Avery v. Tyringham, 3 Mass. 160, 438 Ayres v. O'Farrell, 4 Robt. 668, 375 B V. I , 22 Wis. 372, 863 Babb V. Maokey, 10 Wis. 371, , 417 Baby v. Dubois, 1 Blackf. 255, 185 Bachman v. Everding, 1 Sawyer, 70, 422 Badger v. Benedict, 4 Abb. Pr. 176, 126 Bailey v. Clay, 4 Rand. 346, 442 Bailey v. Hyde, 3 Conn. 463, 359 Baker v. Bailey, 16 Barb. 54, 332 ■ V. Connell, 1 Daly, 469, 371 V. Jewell, 6 Mass. 460, 24 V. Kistler, 13 Ind. 63, 358 V. Robbins, 2 Denio, 136, 15 Baldwin v. Martin, 14 Abb. Pr. (n. s.) 9, 355 ■ V. New Tork & Harlem Nav. Co., 4 Daly, 314, 149 V. United States Tel. Co., 54 Barb. 517, 346 Ball V. Bennett, 21 Ind. 427, 85 Bangs V. Mcintosh, 23 Barb. 591, 262 Bank of Augusta v. Earle, 13 Pet. 590, 190 V. Weis, 19 Johns. 303, 248, 250 Bank of Galliopolis v. Trimble, 6 B. Mon. 599, 50, 65, 253 Bank of Geneva v. G-ulick, 8 How. Pr. 51, 302, 306 Bank of Havanna v. Magee, 20 N. Y. 355, 427 V. Wickham, 16 How. Pr. 97, 250 Bank of Kinderhook v. GiflFord, 40 Barb. 659, 431 Bankof Lowvilleu. Edwards, 11 How. Pr. 216, 176 Bank of Stockton v. Howland, 42 Cal. 129, 107 Bank of The State of Missouri v. Parris, 35 Mo. 371, 411 V. Smith, 33 Mo. 364, 421 Bank of Utica v. Smedes, 3 Cow. 662, 182 V. Smalley, 2 Cow. 770, 250 Barber v. Reynolds, 33 Cal. 497, 73, 123 Barclay!!. Quicksilver Mining Co., 6 Lans. 25, 409 Barfield v. Price, 40 Cal. 535, Barker v. Barker, 14 Wis. 131, V. Braham, 3 Wils. 368, V. Lade, 4 Modern, 151, v. Reynolds, 33 Cal. 497, Barlow v. Scott, 12 Iowa, 63, Barnard v. Macy, 11 Ind. 536, Barner v. Morehead, 22 Ind. 354, Barnes v. Harris, 4 Oomst. 374, ■ V. Smith, 1 Eob. 699, V. Smith, 17 Abb. Pr. 420, Barnett v. Meyer, 17 N. Y. Sup. Ct. 109, Barron v. Frink, 30 Cal. 486, Bartges v. O'Neil, 13 Ohio St. 72, Bartlettu. Benson, 14 Mee. & W. 733, V. Judd, 21 N. Y. 200, Bartholow v. Campbell, 56 Mo. 117, Bass V. Comstock, 38 N. Y. 21, Bassett v. Warner, 23 W^is. 673, Basten v. Butter, 7 East, 479, Bates V. Pilling, 6 Barn. & Cress. 38, Bateson v. Clark, 37 Mo. 31, Battermann v. Pierce, 3 Hill, 171, V. Eosekranz, 37 N. Y. 409, Baum V. Mullen, 47 N. Y. 577, Baxter v. The State, 9 Wis. 38, Beach u. Bay State Steamboat Co., 30 Barb. 433, 287, 314 V. Fulton Bank, 3 Wend. 573, 431 - — ■ V. King, 17 Wend. 197, V. Eanney, 2 Hill, 303, Beale v. Hayes, 5 Sandf. 640, Beardsley v. Bridgman, 17 Iowa, 290, Beattie v. Lett, 28 Mo. 596, Becker v. German Mut. Fire Ins. Co, 68 111. 412, V. Sweetzer, 15 Minn. 427, Beeson v. McConnaha, 12 Ind. 420, Belknap v. Trimble, 3 Paige, 577, Bell V. Barnet, 2 J. J. Marsh. 516, V. Brown, 22 Cal. 671, V. Morehead, 3 A. K. Marsh. 158, 232 Bendernagle v. Cocks, 19 Wend. 207, Benedict v. National Bank, 4 Daly, 264, 409 852 88 158 73 107 108 417 303 123 123 431 442 414 232 350 418 412 110 870 83 158 370 367 86 423 264 27 417 362 51 146 331 422 73 190 344 118 171, «. Seymour, 6 How. Pr. 298, 328, Bennett v. Judson, 21 N. Y. 238, V. Matthews, 64 Barb. 410, 15 352 158 360, 861 TABLE OF CASES CITED. XXIX Bennett v. Preston, 17 Ind. 291, 411 Berkshire v. Shultz, 25 Ind. 523, 414 Beriy v. Taylor, 5 Hill, 577, 13, 15, 244 Berry v. Brett, 6 Bosw. 627, 382 Betts c. Gibbins, 2 Ad. & E. 57, 89 Bidwell V. Astor Ins. Co., 16 N. Y. 263, 116, 168 • ■ V. Madison, 10 Minn. 15, 379 Bigelow V. Bush, 6 Paige, 343, 102 1-. Hartford Bridge Co., 14 Conn. 579, 81 V. Jones, 10 Pick. 161, 238 Bird V. Cotton, 57 Mo. 568, 264 V. Mayer, 8 Wis. 362, 152 Birdseye v. Smith, 32 Barb. 217, 120 Birt V. Eothwell, 1 Ld. Raym. 210, 194, 343 Bisbey v. Shaw, 12 N. Y. 67, 360 Bishop V. Price, 24 Wis. 480, 371 Bissell V. Michigan Southern North- ern Indiana E. Co., 22 N. Y. 258, 83 Bitting 0. Thaxton, 72 N. C. 541, 374 Blake v. Sanderson, 1 Gray, 332, 236 V. Van Tilborg, 21 Wis. 672, no, 123 Blankman v. Vallejo, 15 Cal. 638, 332 Bledsoe v. Simms, 53 Mo. 305, 328, 356 Blickenstaff v. Perrin, 27 Ind. 527, 363 Bloodgood V. Bruen, 4 Seld 362, 205 Blum V. Kobertson, 24 Cal. 127, 351 Board of Commissioners u. Shields, 62 Mo. 247, 253 Board of Education v. Greenbaum, 39 111. 609, 146 Board of Supervisors v. Decker, 34 Wis. 378, 429 V. Decker, 30 Wis. 364, 116, 291, 429 Bogarw. O'Eeagan, 1 E. D. Smith, 590, 57 Bogsess V. Davis, 34 Ind. 82, 422 Bond V. Central Bank of Georgia, 2 Ga. 92, 439 V. Wagner, 28 Ind. 462, 345 Bondurant v. Bladen, 19 Ind. 160, 417 Bonnell v. Griswold, 68 N. Y. 294, 418 Bonny v. Bonny, 29 Iowa, 448, 417 Booge V. Pacific E. Co., 33 Mo. 212, 17 Booher v. Goldsborough, 44 Ind, 490, 294, 428, 424 Booth V. Farmers and Mechanics' Xat. Bank, 65 Barb. 457 ; ». c, 1 N. Y. Sup. Ct. 4-5, 152, 105 Borden v. Gilbert, 13 Wis. 670, 95 Borst V. Corey, 15 N. Y. 50-5, 378 Boston Type Foundry v. Spooner, 5 Vt. 93, 248 Bourland v. Nixon, 27 Ark. 315, 410 Bowen v. Bissell, 6 Wend. 511, 422 V. Newell, 13 N .Y. 290, 178 Bowers v. Keesecker, 9 Iowa. 422, 110 Bowie V. Kansas City, 51 Mo. 454, 442 Bowling V. McParland, 38 Jlo. 4ii5, 305 Bowman v. De Pcyster, 2 Daly, 203, 430 V. Sheldon, 5 Sandf. 657, 420, 423, 443 V. Wright, 7 Bush, 375, 383 Boyce v. Christy, 47 Mo. 70, 118 0. Whitaker, 1 Doui^l. 93, 194 Boyd V. Holmes, 1 Ind. 480, 64 V. Hurlbut, 41 Mo. 268, 205 Boyer v. Clark, 3 Neb. 161, 380 Boyle V. Bobbins, 71 N. C. 130, 118 Boylston v. Crews, 2 S. C. (n. s.) 422, ' 421 Brackett «. Wilkinson, 13 How. Pr. 102, 201 Bradbury /'. Cronise, 46 Cal. 287, 832 Brady v. Ball, 14 Ind. 317, 83 Brainard c. .Tones, 11 How. Pr. 569, 411 Branham v. San Jos^, 24 Cal. 585, 41 Braxton v. The State, 25 Ind. 82, 107 Brennan v. Ford, 46 Cal. 7, 355, 416 Brett r. First Universalist Society of Brookl}n, 63 Barb. 610, 329 Bretz V. Mayor, 6 Robt. 325, 182 Brewer v. Piper, 3 West. Law Jour. 365, 188 V. Temple, 15 How. Pr. 286, 125 c. The State, 11 Ohio, 280, 304 Brewster v. Hall, 6 Cow. 34, 422 V. Silence, 4 Seld. 207, 95 Bridge v. Payson, 5 Sandf. 210, 345 Bridges v. Paige, 13 Cal. 1140, 329 Brigham v. Winchester, 6 Mete. 460, 238 Bright V. Currie, 5 Sandf. 433, 53 Brinkerhoif v. Brown, 6 Johns. Ch. 1311, 73 Brookville and Greensburg Turnpike Co. V. iMcCarty, 8 Ind. 892, 252, 253 Brown v. Hodgson, 4 Taun. 188, 59 V. Lewis, 10 Ind. 232, 422 V. Martin, 25 Cal. fi2, 855, 416 Brown v. Peiilield, 36 N. Y. 473, 51 r. Smith, 24 Barb. 419, 286 XXX TABLE OP CASES CITED, Brownell v. Plaghler, 5 Hill, 282, 15 V. Manning, 6 Ohio, 298, 81 V. Phillips, 3 Bush, 656, 374 Bruce v. Burr, 67 N. T. 287, 344 Bruck V. Tucker, 42 Cal. 346, 328, 851 Bryan v. Beckley, Litt. Sel. Gas. 91, 188 V. Buford, 7 J. J. Marsh. 835, 294 V. Mayor of New York, 42 N. T. Sup. Ct. 202, 331 Bryer ». Chase, 8 Blackf. 508, 80 Buck V. Buck, 11 Paige, 170, 108 Buckbee v. Brown, 21 Wend. 110, 59 Buckley v. Knapp, 48 Mo. 152, 863 V. Rice, Plow. 118, 309 Buckinghouse v. Gregg, 19 Ind. 401, 186 Buffum V. Chadwick, 8 Mass. 103, 59 Buhne v. Corbett, 43 Cal. 264, 344 Bulger V. Eoehe, 11 Pick. 36, 355 Bundy v. Hart, 46 Mo. 463, 150, 180 Burbank v. Beach, 15 Barb. 326, 57 Burdsal v. Davies, 58 Jlo. 138, 426 Burgovne v. Ohio Life Ins. Co., 5 Ohio St. 586, 107 Burnham v. Webster, 5 Mass. 268, 182 Burr V. Woodrow, 1 Bush, 602, 132 Burrall v. De Groot, 5 Duer, 379, 367 Burrows v. Miller, 5 How. Pr. 51, 410 Bush «. Bradley, 4 Day, 303, 25 V. Madeira, 14 B. Mon. 212, 418 V. Prosser, 11 ]SI. Y. 347, 860 Butchers & Drovers' Bank v. Jacob- son, 24 How. Pr. 204 ; s. <;., 15 Abb. Pr. 220, 302, 306 Butler V. Edgerton, 15 Ind. 15, 330 V. New York & Erie E. Co., 22 Barb. 110, 38 V. Titus, 13 Wis. 429, 374 V. Wentworth, 9 How. Pr. 282, 844 V. Wood, 10 How. Pr. 222, 417 Buttemere v. Hayes, 5 Mee. & W. 461, 3.53 Butts V. Collins, 13 Wend. 154, 15 Buzzard v. Knapp, 12 How. Pr. 504, 207 Buzzell V. Gallaher, 28 Wis. 678, 374 Byard v. Holmes, 33 N. J. L. 119, 15 Byxbie v. Wood, 24 N. Y. 607, 15, 88, 43 Cabell V. Vaughan, 1 Saund. 291, 14 Cable V. St. Louis Marine E. & Dock Co., 21 Mo. 133, 65 Cabot V. Haskins, 3 Pick. 83, 271 Cahill V. Palmer, 17 Abb. Pr. 196, 276 Cahoon v. Bank of Utica, 3 Seld. 486, 116 California Steam Nav. Co. v. Wright, 6 Cal. 258, 251 Callisher v. Blschoffsheim, L. E. 5 Q. B. 449, 271 Callison v. Lemons, 2 Port. (Ala.) 145, 294 Camden Bank v. Bodgers, 4 How. Pr. 63, 283 Cameron v. Eeynolds, Cowp. 406, 83 Camp V. Pulver, 5 Barb. 91, 15 Campbell v. Blanke, 13 Kan. 62, 251 V. Pox, 11 Iowa, 318, 377 V. Galbreath, 5 Watts, 423, 248 0. Phelps, Pick. 611, 88 V. Eoutt, 42 Ind. 410, 376 V. Stokes, 2 Wend. 137, 16 Campion v. Kille, 14 N. J. Eq. 229, 480 Canfleld v. Tobias, 21 Cal. 349, 200 ■ Cannon r. McManus, 17 Mo. 345, 345 Caples V. Branham, 20 Mo. 248, 269 Capuro V. Builders' Ins. Co., 39 Cal. 123, 839 Carlisle v. Blamire, 8 East, 487, 253 Carman v. Plass, 23 N. Y. 286, 95 Carnegie v. Mori-ison, 2 Mete. 396, 242 Carpen v. Hall, 29 111. 512, 242 Carpenter v. Goodwin, 4 Daly, 89, 852 Carson v. Hunter, 46 Mo. 467, 455 V. Miles, 17 B. Mon. 598, 50, 51 Carey v. Cincinnati & Chicago E. Co., 5 Iowa, 357, 304 Carvick v. Smith, 11 Ga. 539, 429 V. Vickery, 2 Dougl. (Mich.) 653, 66 Cary v. Wheeler, 14 Wis. 281, 169 Casady v. Scallen, 15 Iowa, 93, 109 Cash V. Auditor, 7 Ind. 227, 189 Cassacia v. Phoanix: Ins. Co., 28 Cal. 628, 165 Cassidy v. Steuart, 2 Man. & Gr. 487, 194 Cassin v. Delaney, 38 N. Y. 178, 85 Castner v. Sumner, 2 Minn. 44, 51 Gate V. Gilman, 41 Iowa, 530, 423 Catherwood v. Chabaud, 1 Barn. & Cress. 150, 53 Catlin V. Gunter, 11 N. Y. 368, 431 V. Pedrick, 17 Wis. 88, 121 Caulfleld v. Sanders, 17 Cal. 569, 382 Cavalli v. Allen, 57 N. Y. 508, 351 Chamberlain v. Williamson, 2 Mau. & Sel. 408, 43, 48 TABLE OF CASES CITED. XXXI Chamberlin v. Scott, 33 Vt. 80, 17 V. Vance, 51 Cal. 75, 360 Ohambers v. Lewis, 11 Abb. Pr. 210, 381 Chamboret v. Oagaey, 12 Sweeny, 378, 375 Champion v. Brown, 6 Johns. Oh. 398, 109 Chapman v. Chapman, 34 How. Pr. 281, 325, 328 V. West, 17 N. T. 125, 109 Charles, In re, 14 East, 197, 44 Cheltenham Pire-Briek Co. v. Cook, 44 Mo. 29, Cherry v. Baker, 17 Md. 75, Chicago, Cincinnati & Louisville E. Co. V. West, 37 Ind. 211, Childs V. Hyde, 10 Iowa, 294, Chiles V. Drake, 2 Mete. (Ky.) 146, Chouteau v. Pierre, 9 Mo. 3, Christian v. Crocker, 25 Ark. 827, Christian Society v. Macomber, 3 Mete. 235, Church V. Churchill, 9 How. Pr. 552, V. Mumford, 11 Johns. 479, Churchill v. Trapp, 3 Abb. Pr. 306, Citizens' Bank v. Closson, 29 Ohio St. 78, City Bank of New Haven v. Perkins, 29 N. T. 554, City of Allegheny v. Nelson, 25 Pa. St. 332, City of Buffalo v. Holloway, 3 Seld. 493, City of Evansville v. Evans, 37 Ind. 229, City of Geoi'getown v. Alexandria Canal Co., 12 Pet. 91, City of Jefferson ville v. Steam Ferry- boat John Shallcross, .35 Ind. 19, 417 City of Los Angeles v. Signoret, 50 Cal. 298, 316 City of Milwaukee v. 0' Sullivan, 25 Wis. 666, 421 City of New Tork v. Parker Vein Steamship Co., 8 Bosw. 300; «. o., 12 Abb. Pr. 300 ; s. c, 21 How. Pr. 289, 375, 381 Claflin V. Jarolauski, 64 Barb. 463, 422 Clapp V. Preston, 15 Wis. 543, Clare v. The State, 5 Iowa, 509, Clark V. Cable, 21 Mo. 223, V. Eeatherstone, 32 Ind. 142, 57 196 424 107 355 183 414 248 119 14 411 844 15 182 212 328 81 421 181 77 121 Clark V. Einnell, 16 B. Mon. 329, 325 V. Pitch, 2 Wend. 459, 28 V. Henry's Administrator, 9 Mo. 339, 80 V. Holton, 57 Ind. 564, 227 V. Jeffersonville, Madison & In- dianapolis R. Co., 44 Ind. 248, 422 ■ V. Lineberger, 44 Ind. 223, 212 V. Mayor, 4 Comst. 338, 17 V. Spencer, 14 Kan. 398, 358, 430 V. Titcomb, 42 Barb. 122, 54 V. The Commonwealth, 29 Pa. St. 129, 196 Clay V. Edgerton. 19 Ohio St. 549, 425 Cleveland v. Barrows, 59 Barb. 364, . 129 Clongh V. Murray, 19 Abb. Pr. 97, 421 Cobb V. Harrison, 20 Wis. 625, 421 Cochran's Executors v. Davis, 5 Litt. 118, 48 Codman v. Jenkins, 14 Mass. 96, 238 Codrington v. Lloyd, 8 Ad. & E. 449, 83 Coit V. Skinner, 7 Cow. 401, 431 Cole V. Irvine, 6 Hill, 684, 25 V. Patterson, 25 Wend. 456, 68 Colegrove v. New York & New Ha- ven E. Co., 20 N. Y. 492, 83 Coleman v. WooUey, 10 B. Mon. 820, 48 Collier v. Baptist Educational Soci- ety, 8 B. Mon. 68, 182, 183 Collins V. Gibbs, 2 Burr. 899, 442 — - 0. Prentice, 15 Conn. 423, 44 Colt V. Root, 17 Mass. 229, 438 Comegys v. Vasse, 1 Pet. 209, 38 Commercial Bank of Buffalo v. Spar- row, 2 Denio, 101, 181 Commercial Bank of Rochester v. City of Eochester, 41 Barb. 341 ; s. c, 41 N. Y. 619, 210 Conaughty v. Nichols, 42 N. Y. 83, 292, 293 Cones V. Ward, 47 Mo. 289, 406 Conger v. Parker, 29 Ind. 380, 350 Congregational Society v. Perry, 6 N. H. 164, 252, 263 Conkling v. Gandall, 1 Keyes, 228, 302, 306 Connecticut Bank v. Smith, 9 Abb. Pr. 168 ; s. c, 17 How. Pr. 487, 250, 252, 408 XXXll TABLE OF CASES CITED. Connecticut Mutual Life Ins. Co. v. Cross, 18 Wis. 109, Connor v. Board of Education, 10 Minn. 439, ■ V. Winton, 7 Ind. 523, Considerant u. Brisbane, 22 N. T. 54. Pratt, 9 Md. 73, B. Wliarton, 13 Minn. 158, Baclielor, 3 Bos. & Pul. 389, Contee x Conway Coolc v. 150, V. Finch, 19 Minn. 407, V. Gray, 2 Busli, 121, V. Litchfield, 5 Sandf. 330, V. Soule, 5B N. Y. .420, V. Spears, 2 Cal. 409, V. Williamson, 11 Ind. 242, Coolidge V. Parris, 8 Ohio St. 594, Cooper V. Waldron, 50 Me. 80, Copley V. Sanford, 2 La. An. 335, Coppin V. Barber, 24 Wend. 105, V. Walker, 2 Marsh. 497, Corby v. Weddle, 57 Mo. 452, 329, Corkhill v. Landers, 44 Barb. 218, Corning v. Corning, 2 Seld. 97, 0. Lowerre, 6 Johns. Ch. 439, Corry v. Gaynor, 21 Ohio St. 277, 155, Corryton v. Lithbye, 2 Saund. 116, Coryell v. Cain, 16 Cal. 567, Coster V. Mayor, 43 N. Y. 399, V. New York & Erie E. Co., 6 Duer, 43 ; s. c, 3 Abb. Pr. 332, Costigan v. Mohawk & Hudson R. Co., 2 Denio, 609, Cottle r. Cole, 20 Iowa, 481, Cottrell D. Conklin, 4 Duer, 45, 302, Cottrill V. Cramer, 40 Wis. 555, Coulter's Case, 3 Co., pt. 5, p. 30, Cox V. Beltzhoover, 11 ilo. 142, V. Morrow, 14 Ark. 603, Coxe V. Higbee, 6 Halst. 395, Craft V. Jackson, 5 Kan. 518, Cramer v. Benton, 60 Barb. 216, Crary v. Goodman, 12 N. Y. 266, Crcei V. Kirkham, 47 111. 344, Crisp V. Pratt, Cro. Car. 550, Crocker v. Gilbert, 9 Cusb. 131, Cropsey v. Sweeney, 27 Barb. 310, Crosby v. Loop, 13 111. 025, V. Wood, 2 Seld. 369, Crouch V. Gridley, 6 Hill, 250, 251 417 376 57 196 344 26 344 371 410 371 431 396 85 429 180 359 59 352 253 165 81 164 26 442 58 77 17 51 306 421 370 176 180 421 81 350 350 244 211 488 152 68 271 44 Crow V. Hildreth, 39 Cal. 618, 122 Cruger v. MoLaury, 41 N. Y. 219,' 25 Cudlipp V. Whipple, 4 Duer, 610, 299 Cuff V. Doriand, 55 Barb. 481, 162 Cummings v. Force, 3 Hill, 282, 15 Cunningham v. White, 45 How. Pr. 486, 411 Curran v. Curran, 40 Ind. 473, 383 Currier v. Howard, 14 Gray, 511, 109 Curry v. Keyser, 30 Ind. 214, 339 Curtis V. Barnes, 30 Barb. ^25, 379 V. Moore, 15 Wis. 134, 121 V. Richards, 9 Cal. 33, 325 V. Sutter, 15 Cal 264, 53 Cutler V. Wright, 22 N. Y. 472, 418 Cutting V. Gilbert, 5 Blatchf. 259, 80 Cutts V. Thodey, 13 Sim. 206, 109 Cythe V. La Fontain, 51 Barb. 186, 851 Dailey v. Houston, 58 Mo. 361, 85 V. Litchfield, 10 Mich. 29, 109 V. The State, 10 Ind. 536; 198 Dambmann v. White, 48 Cal. 439, 230, 263, 409 Darrah v. Steamboat Lightfoot, 15 Mo. 187, 418 Davanay v. Eggenhoff, 43 Cal. 395, 358 Davidson v. Remington, 12 How. Pr. 310, 385 Davis V. Calloway, 30 Ind. 112, 242 V. Coburn, 8 Mass. 299, 48 V. Louk, 30 Wis. 308, 374 V. Mayor of New York, 2 Duer, 663, 81 V. Norris, 36 JST. Y. 569, 162, 163 V. Reynolds, 48 How. Pr. 210, 57 V. Shoemaker, 1 Rawle, 185, 68 V. Warfield, 38 Ind. 461, 328 Dawson v. Vaughan, 42 Ind. 895, 410 Day V. Vallette, 25 Ind. 42, 34'; Day V. Wamsley, 83 Ind. 145, 828 Dayton v. Connah, 18 How. Pr. 326, 41.') Dean v. Leonard, 9 Minn. 190, 332 De Armond v. Bohn, 12 Ind. 607, 410 Debolt V. Carter, 31 Ind. 355, 407, 414, 417 De Bow V. The People, 1 Denio, 11, 181 Decharms v. Horwood, 10 Bing. 526, 67 Decker v. Livingston, 15 Johns. 479, 67 Delano v. Jopling, 1 Litt. 417, 183 Delaplaine f. Lewis, 19 Wis. 476, 102 TABLE OF CASES CITED. XXXIU 242 253 396 532 2i, 411 344 95 242 Delaware & Hudson Canal Co. v, IVestfli ester County Bank, 4 De- nio, 97, Den r. Tan Houton, 5 Halst. 270, Denny c. Indiana & Illinois Central R. Co., 11 Ind. 292, Depew II. Bank of Limestone, 1 J. J. JIursh. 380, Depuy V. Strong, 37 N. T. 372, Derby r. Gallup, 5 Minn. 119, De Riddler v. Schermerhorn, 10 Barb. 638, Devol V. Mcintosh, 23 Ind. 529, Devoss V. Gray, 22 Ohio St. 159, 251, 304, 408 Dewey r. Hoag, 15 Barb. 365, 351, 384 Dial v. Holter, 6 Ohio St. 228, 44 Dickens «. New York Central E. Co., 13 How. Pr. 228, 119 Dickensheets t>. Kaufman, 28 Ind. 251, 215 Dickenson v. Breeden, 30 111. 279, 183 Dickerson v. Hayes, 4 Blackf 44, 442 Dietrich v. Koch, 35 "Wis. 618, 388, 389 District Township of White Oak v. District Township of Oskaloosa, 44 Iowa, 512, 417 Dix V. Briggs, 9 Paige, 59-5, 73 Dixon ;;. Niccolls, 39 111. 372, 188 Dobson V. Pearce, 12 N. Y. 156, 347, 3-50, 351 Dodge V. Minnesota Plastic Slate Koof- ing Co , 14 Minn. 49, 251, 260 V. Tileston, 12 Pick. 329, Dodson V. Scroggs, 47 JIo. 28-5, Doe V. Penfleld, 19 Johns. 308, V. Read, 12 East, 57, Dolby V. Dorthall, Cro. Car. 553, Dolde V. Vodioka, 49 Mo. 98, Dole V. Mauley, 11 How. Pr. 138, V. Northrop, 19 Wis. 249, Dolevin v. Wilder, 7 Robt. 319, Doll V. Feller, 16 Cal. 432, Dolph V. Rice, 18 Wis. 397, Doolittle V. Supervisors, 18 N. T. 155, Dorsey v. Reese, 14 B. Mon. 158, Douglass V. Bank, 1 Mo. 24, Dove V. Hayden, 5 Greg. 500, Dows V. Cobb, 12 Barb. 310, V. Hotchkiss, 10 N. T. Obs. 281, Drake v. Cockroft, 4 E. D. Smith, 34 ; s. c, 10 How. Pr. 377, 334, 375, 421 370 406 248 25 26 255 427 431 361 406 302 81 382 182 388, 406 59 Leg. 208 Draper v. Arnold, 12 Mass. 449, 83 V. Stouvenel, 38 N. Y. 219, 118 Drook V. Irvine, 41 Ind. 430, 417 Dubois V. Hermance, 56 N. Y. 673, 330, 339 Dubuque County o. Reynolds, 41 Iowa, 454, 411 Dudley V. Scranton, 57 N. Y. 424, 2;i2 Duffy V. O'Donovan, 46 N. Y. 223, 353 Dugan V. United States, 3 Wheat. 183, 232 Duncan v. Duncan, 19 Mo. 368, 264 V. Stanton, 30 Barb. 533, 385 Dunning v. New Albany & Salem R. Co., 2'lnd. 437, 185 V. Eumhaugb. 36 Iowa, 566, 330 V. Thomas, 11 How. Pr. 281, 119 Dunlap V. McNeil, 35 Ind. 316, 242 Durand v. New Haven & Northamp- ton R. Co., 42 Conn. 211, 339 Durgin v. Ireland, 14 N. Y. 322, 51 Durham v. Bischof, 47 Ind. 211, 111, 242, 416 Dutcher v. Dutcher, 39 Wis. 651, 345 Dutchess Mfg. Co. v. Davis, 14 Johns. 245, 248 Dwight V. Newell, 15 111. 333, 49 Dye V. Dye, 11 Cal. 163, 302 V. Kerr, 15 Barb. 444, 128 Dyer v. Plint, 21 111. 80, 195 Eastman v. St. Anthony Palls Co., 1 Minn. 137, 3-55 Eastwood V. Kenyon, 11 Ad. & E. 441, 353 f. Turman, 24 Cal. 379, 112 Eaton V. Alger, 47 N. Y. 345, 51 : V. Burns, 31 Ind. 390, 107 V. GiUet, 17 Wis. 435, 421 V. Tallmage, 22 Wis. -526, 374 V. Woolly, 28 Wis. 628, 371 EbersoU v. Krug, 3 Binn. 555, 26 Eddy V. Beach, 7 Abb. Pr. 17, 207 Edgell V. Sigerson, 20 Mo. 494, 339 Edgerton v. Page, 20 N. Y. 281, 375 Edmonson v. Kite, 43 Mo. 176, 238 Edson V. Dillaye, 8 How. Pr. 273, 358, 421 Egberts «. Wood, 3 Paige, 520, 80 Ehle V. Judson, 24 Wend. 97, 271 Eigenmann v. Backof, 56 Ind. 594, 426, 442 Elder v. Smith, 16 Ind. 466, 51 XXXIV TABLE OF CASES CITED. Eldridge v. Mather, 2 Comst. 157, 330 Elledge v. Straughan, 2 B. Mon. 82, 50, 65 Elliott V. Hart, 7 How. Pr. 25, 427 V. Hayden, 104 Mass. 180, 88 t>. Porter, 5 Dana, 299, 88 V. Thomas, 8 Mee. & "W. 173, 853 Ellis V. Pacific R. Co., 55 Mo. 278, 332 Ellsworth V. Brewer, 11 Pick. 316, 232 Emeric v. Penniman, 26 Cal. 119, 53 Emery v. Erskine, 66 Barb. 9, 73 V. Pease, 20 N. Y. 62, 161 Emigh V. Pittsburgh, Ft. "Wayne & Chicago E. Co., 4 Biss. 114, 14 Empire Trans. Co. i>. Boggiano, 52 Mo. 294, 379 English V. Roche, 6 Ind. 62, 264 Ensign v. Sherman, 14 How. Pr. 439, 224 Erickson v. Compton, 6 How. Pr. 471, 57, 58 Erwin v. Lowery, 64 IST. C. 321, 421 v. Shaflfer, 9 Ohio St. 43, 437 Espinosa v. Gregory, 40 Cal. 58, 325 Esselstyn v. Weeks, 12 N. T. 635, 355 Estill's Heirs v. Clay, 2 A. K. Marsh. 497, 109 Estrader v. Murphy, 19 Cal. 248, 351 Estrella, The, 4 Wheat. 298, 197 Evans v. Brown, 30 Ind. 514, 194 V. Williams, 60 Barb. 346, 330, 352 Evens v. Hall, 1 Handy, 434, 380 Eversole v. Moore, 3 Bush. 49, 381 Excelsior Savings Bank v. Campbell, 4 N. T. Sup. Ct. 549, 334 Farmer v. Calvert, 44 Ind. 209, 329 Farmers' Bank v. Bayless, 41 Mo. 274, 123 1,. Whittington, 5 Har. & J. 489, 248 Farmers & Drovers' Bank «. William- son, 61 Mo. 261, 255 Farmers & Mechanics' Bank v. Smith, 15 How. Pr. 329, 422 V. Sawyer, 7 Mo. 379, 422 Farmers «& Mechanics' Bank u.Wads- worth, 24 N. Y. 547, 176, 233 Farmers & Merchants' Ins. Co. v. Needles, 52 Mo. 17, 252, 253 Farmers & Millers' Bank v. Sawyer, 7 Wis. 379, 421 Farmers' Loan & Trust Co. u. Fisher, 17 Wis. 114, 251, 421 Faesi v. Goetz, 15 Wis. 231, 116, 169 Fair v. Mclver, 16 East, 130, 384 Fairohild v. Amsbaugh, 22 Cal. 572, 858 Farnham v. Campbell, 34 N. Y. 480, 414 V. Hildreth, 32 Barb. 277, 427 Parrington v. Payne, 15 Johns. 432, 118 Farron v. Sherwood, 17 N. Y. 227, 152, 157 Fatman v. Leet, 41 Ind. 133, 414 Fay V. Cobb, 51 Cal. 313, 422 Feemster v. Ringo, 5 T. B. Mon. 336, 191 Felch V. Beaudry, 40 Cal. 440, 421 Fellows V. Fellows, 4 Cow. 682, 110 Fells V. Vestvali, 2 Keyes, 152, 157 Ferdinand v. The State, 39 Ala. 706, 190 Ferguson ». Gilbert, 16 Ohio St. 88, 119 V. Throop, 16 Wis. 571, 421 Fern v. Vanderbuilt, 13 Abb. Pr. 72, 119 Fero V. Ruscoe, 4 Comst. 162, 359 Ferreira v. Depew, 4 Abb. Pr. 131, 385 Ferrin v. Myrick, 41 N. Y. 815, 117, 123 Person v. Drew, 19 Wis. 225, 417 Pettretch v. McKay, 47 N. Y. 426, 421 Field V. Oliver, 43 Mo. 200, 383 Finnell v. Nesbitt, 16 B. Mon. 351, 382 First National Bank v. Hogan, 47 Mo. 472, 332 Fisher v. Hall, 41 N. Y. 416, 25 V. Scholte, 30 Iowa, 221, 417 Pisk V. Tank, 12 Wis. 276, 118 Pitch V. Pacific R. Co., 45 Mo. 322, 211 Fitzgerald v. Hayward, 50 Mo. 516, 17 Flanagan v. Hutchinson, 47 Mo. 237, 58 Fleming v. Mershon, 36 Iowa, 414, 80 Fletcher v. Holmes, 25 Ind. 465, 390 Pleury v. Roget, 5 Sandf. 646, 334 Floyd V. Ricks, 14 Ark. 286, 188 V. Wiley, 1 Mo. 430, 13 Foley V. Alkire, 52 Mo. 317, 396 Pollet V. Heath, 15 Wis. 601, 350 Folsom V. Carli, 6 Minn. 423, 379 Pordyce v. Hathorn, 57 Mo. 120, 845 Poren v. Dealey, 4 Oreg. 92, 422 Forster v. Lawson, 11 Moore, 360, 26 Fosdick V. Groff, 22 How. Pr. 158, 421 Poster V. Stewart, 3 Mau. & Sel. 191, 154 Fowler v. Westervelt, 40 Barb. 374, 264 Francis v. Francis, 18 B. Mon. 57, 325 Frazer v. Roberts, 32 Mo. 457, 441, 442 Frear v. Hardenberg, 5 Johns. 273, 276 Freeman v. Carpenter, 17 Wis. 126, 345 Freer v. Denton, 61 N. Y. 492, 423 TABLE OF CASES CITED. XXXV Fricker v. Thomlinson, 1 Man. & Gr. 772, 353 Friermutli v. Priermuth, 46 Cal. 42, 128, 157 Frisbee v. Langworthy, 11 Wis. 375, 329 Frisch v. Calor, 21 Cal. 71, 358 Frost V. Belmont, 6 Allen, 152, 278 V. Plumb, 40 Comst. Ill, 16 Fry V. Bennett, 5 Sandf. 54, 805, 358 Fulenwider v. Fulenwider, 53 Mo. 489, 191 Fullerton v. McCurdy, 4 Lans. 132, 109 Fulton Bank v. Beach, 1 Paige, 429, 431 Fulton Fire Ins. Co. v. Baldwin, 37 N. T. 648, 250, 408 Fulz V. Wyeoflf, 25 Ind. 321, 425 Furman v. Van Size, 56 N. T. 435, 28 Gage V. Angell, 8 How. Pr. 335, 384 Gaines v. Chew, 2 How. 619, 110 Gale V. Foss, 47 Mo. 276, 430 V. Tuolumne Water Co., 14 Cal. 25, 442 • V. Van Arman, 18 Ohio, 836, 95 Gallup V. Albany By. Co., 7 Lans. 471, 375 Gardner v. Armstrong, 31 Mo. 535, 54, 204, 312, 353 V. Clark, 21 N. T. 399, 345 V. Ogden, 22 N. Y. 327, 122, 123 Gardiner v. Clark, 6 How. Pr. 449, 345 Gardinier v. Kellogg, 14 Wis. 605, 54 Garner v. Hannibal & St. Joseph E. Co., 34 Mo. 235, 211 Garrison v. Clark, 11 Ind. 369, 51 V. Marshall, 9 Cal. 268, 442 Garry v. Dobbins, 8 Mo. 213, 68 Garth v. Howard, 5 Car. & P. 346, 83 Garvey v. Dobyns, 8 Mo. 213, 17 V. Fowler, 4 Sandf. 665, 151, 302, 358 Gates V. Boorner, 17 Wis. 455, 73 Gay V. Paine, 5 How. Pr. 107, 302 Gazyuski v. Cofturn, 11 Cush. 10, 26 Getty V. Hudson Biver R. Co., 6 How. Pr. 269; s. c, 8 How Pr. 177, 116, 168, 416 Ghiradelli v. Bourland, 32 Cal. 585, 123 Gibbons v. Gentry, 20 Mo. 468, 64 Gilchrist v. Gilchrist, 44 How. Pr. 317, 431 Giles V. Betz, 15 Abb. Pr. 285, 200 Gillett V. Fairchild, 4 Denio, 80, 263 V. Hill, 32 Iowa, 220, 355 V. Treganza, 13 Wis. 472, 155 Gillispie v. Ft. Wayne & Southern R. Co., 12 Ind. 398, 51 Gilman v. Lowell, 8 Wend. 573, 359 Glazer v. Clift, 10 Cal. 803, 329 Glenn v. Waddel, 23 Ohio St. 605, 80 Globe Ins. Co. v. Boyle, 21 Ohio St. 119, 115 Goddin v. Vaughn, 14 Gratt. 102, 109 Goff V. May, 38 Ind. 267, 414 Goldberg v. Utley, 60 N. T. 427, 412 Goncelier v. Foret, 4 Minn. 13, 414 Gooding v. McAllister, 9 How. Pr. 123, 168 Goodman v. White, 26 Conn. 317, 101 Goodnight v. Goar, 30 Ind. 418, 75, 414 Goodwin v. Appleton, 22 Me. 453, 189 V. McGehee, 15 Ala. 232, 480 ■ ■ V. Robinson, 30 Ark. 535, 374 Gordon v. Bruner, 49 Mo. 570, 13, 155, 244, 374, 381 Gorgerat v. McOarty, 2 Dall. 144, 232 Gostorfs V. Taaflfe, 18 Cal. 385, 422 Gould V. Armstrong, 2 Hall, 266, 271 V. Glass, 19 Barb. 179, 145 Gourley v. Hutton, 10 Wend. 595, 382, 388, 431 Gradwohl v. Harris, 29 Cal. 150, 51 Gragoo v. Levi, 2 Duv. 520, 125 Graham v. Anderson, 42 111. 514, 196 V. Camman, 5 Duer, 697, 413 V. Tilford, 1 Mete. (Ky.) 112, 51, 382, 383 Grain v. Aldrioh, 38 Cal. 514, 65, 242, 411 Grand Lodge v. Knox, 20 Mo. 433, ■370, 374 Grannis v. Hooker, 29 Wis. 65, 157 Grant v. MoCarty, 38 Iowa, 468, 117 Grattani'. Wiggins, 23 Cal. 29, 53, 101 Graves v. Waite, 59 N. Y. 15r, 292 Gray v. Dougherty, 25 Cal. 266, 112, 116 V. Oaksmith, 12 How. Pr.l34, 411 Green v. Gilbert, 21 Wis. 396, 157 V. Palmer, 15 Cal. 411, 207, 214 V. Willard Barrel Co., 1 Mo. App. 202, 379 Greenfield v. Massachusetts Mutual Life Ins. Co., 47 N. Y. 430, 327, 331, 425 XXXVl TABLE or CASES CITED. Greenly v. Hall, 3 Harr. 9, 24 Greensburg, Milfoi'd & Hope Turn- pike Co. V. Sidener, 40 Ind. 424, 411,414,416 Greenway v. James, 34 Mo. 327, 329, 352 Gregory v. Duke of Brunswick, 1 Car. & Kir. 24 (47 E. C. L. 23), 418 Greither v. Alexander, 15 Iowa, 470, 110 Gridley v. Gridley, 24 N. Y. 130, 242 Griffin v. Cox, 30 Ind. 242, 382 V. Grundy County, 10 Iowa, 226, 95 ■ V. Moore, 52 Ind. 295, 371, 376 Griffiths V. Eyles, 1 Bos. & P. 413, 817 • 0. Henderson, 49 Cal. 567, 417, 566 Griggs V. City of St. Paul, 9 Minn. 246, 418 Grinde v. Minneapolis & St. Paul R. Co., 42 Iowa, 376, 211 Grinnell v. Schmidt, 2 Sandf 705, 54, 57, 59 Groh V. Cushman, 45 III. 119, 194 Grossman v. Lauber, 29 Ind. 618, 385 Grosvenor v. Austin, 6 Ohio, 104, 80 Grove v. Dubois, 1 Term Rep. 112, 59 Groves v. Ruby, 24 Ind. 418, 50, 64 Guaga Iron Co. v. Dawson, 4 Blackf. 202, 248 Guard v. Risk, 11 Ind. 156, 305 Guedici v. Boots, 42 Cal. 452, 351 Guernsey v. American Ins. Co., 17 Minn. 104, 116, 169 Gushee v. Leavitt, 5 Cal. 160, 339 Gwaltney v. Cannon, 31 Ind. 227, 152 Habicht v. Pemberton, 4 Sandf. 657, 79 Haddix v. "Wilson, 3 Bush, 523, 381 Hagan v. Walker, 14 How. 29, 100 Haggard v. Hay, 13 B. Mon. 175, 325 Haggerty v. Palmer, 6 Johns. Oh. 437, 15 Haight V. Child, 34 Barb. 186, 276, 353 V. Hart, 19 N. Y. 464, 40, 43 Haile v. Palmer, 5 Mo. 403, 27 Haire D. Baker, 1 Seld. 357, 416 Halbert v. Skyles, 1 A. K. Marsh. 368, 182, 183 Hale V. Omaha National Bank, 49 N. Y. 626, 417, 425 V. Walker, 31 Iowa, 344, 339 Hall V. Carpen, 27 HI. 386, 242 V. Corcoran, 107 Mass. 251, 16 Hall V. Gale, 14 Wis. 54, 374 V. Gardner, 1 Mass. 172, 48 V. Huntoon, 17 Vt 244, 45 V. Marston, 17 Mass. 575, 242 V. Taylor, 8 How. Pr. 428, 267 V. Western Transp. Co., 34 N. Y. 284, 17 Halleck v. Mixer, 16 Cal. 574, 264, 409 Hallet V. Hallet, 2 Paige, 15, 80 Ham V. Greve, 34 Ind. 18, 339 Hambly«. Trott, Cowp. 371, 154 Hamilton v. Marks, 63 Mo. 167, 396 V. Tucker, 72 N. C. 502, 126, 154 V. Wright, 37 N. Y. 506, 46 Hamlin v. Haight, 32 Wis. 237, 314 Hammond v. Cockle, 2 Hun, 495 ; 5 N. Y. Sup. Ct. 56, 417 V. Inloes, 4 Md. 172, 182 Hancock v. Johnson, 1 Mete. (Ky.) 242, 123 V. Ritchie, 11 Ind. 48, 50, 51 Hanna u. Jeffersonville R. Co., 32 Ind. 113, 355 Hannibal & St. Joseph R. Co. v. Knudson, 62 Mo. 569, 426 Hanson v. Shackelton, 4 Dowl. 48, 191 Happe V. Stout, 2 Cal. 460, 442 Harbison v. State Bank, 28 Ind. 133, 302 Hard v. City of Decorah, 43 Iowa, 313, 186 Harden v. Atchison & Nebraska R. Co., 4 Neb. 521, 332 Harding v. Strong, 42 HI. 148, 189 Hardy v. Blazer, 29 Ind. 226, 111 Hargrave v. Bank of Illinois, Breese, 84, 248 Harkness v. Julian, 53 Mo. 238, 430 Harlow v. Hamilton, 6 How. Pr. 475, 423 Harney v. Dutcher, 15 Mo. 89, 53 Harp V. Osgood, 2 Hill, 216, 59 Harper v. Butler, 2 Pet. 239, 49 V. Miller, 27 Ind. 277, 312 Harriman v. Stowe, 57 Mo. 93, 83 Harris v. Avery, 5 Kan. 146, 125 Harrison v. Hastings, 28 Mo. 346, 430 V. Juneau Bank, 17 Wis. 341, 116 V. Stone, 4 Bush, 577, 382 Harsen v. Bayaud, 5 Duer, 656, 423 Harsh v. Morgan, 1 Kan. 293, 73, 123 Hart V. Bodley, Hard. 105, 190 Hartford Bank v. Green, 11 Iowa, 476, 418 TABLE OF CASES CITED. XXXVll Havtsville University v. Hamilton, 34 Ind. 506, Harward v. St. Clair Drainage Co., 51 111. 130, Harwood v. Marye, 8 Cal. 580, Hatch I'. Peet, 23 Barb. 575, Hatchett v. Gibson, 13 Ala. 587, Hathaway v. Baldwin, 17 Wis. 616, ■ V. Toledo, Wabash & Western K. Co., 46 Ind. 25, Hauptman v. Catlin, 20 N. T. 247, Hawk V. Thorn, 54 Barb. 164, Hay V. Short, 49 ilo. 139, Hayden v. Hayden, 46 Cal. 332, Hays V. Hall, 4 Port. 374, Hazelton v. Union Banli: of Colum- bus, 32 Wis. 36, Headlee v. Cloud, 51 Mo. 301, Heine v. Anderson, 2 Duer, 318, Heinrichs v. Kerchner, 35 Mo. 378, Hemson r. Decker, 29 How. Pr. 385, Henderson v. Dickey, 50 Mo. 161, 116, 161, Hendrickson v. Anderson, 5 Jones L. 246, Hendry v. Hendry, 82 Ind. .349, Hendy v. Stephenson, 10 East, 60, Henriques v. Dutch West India Co., 2 Ld. Pvaym. 1535; s. u., 1 Stra. 612, 248, Henslee v. Cannefax, 49 JIo. 295, Henthorn v. Doe, 1 Blackf. 157, Hereth v. Smith, 33 Ind. 514, Herrington v. Santa Clara County, 44 Cal. 496, Herschfeld v. Dexel,^ 12 Ga. 582, Hewitt V. Brown, 21 Minn. 163, Hicks V. Sheppard, 4 Lans. 335, Hier v. Grant, 47 N. Y. 278, Higgins V. Breen, 9 Mo. 493, Hill V. Bacon, 43 111. 477, V. Davis, 3 N. H. 384, V. Gibbs, 5 Hill, 56, V. Marsh, 46 Ind. 218, 77, V. Perrott, 3 Taun. 274, 15, V. Thacter, 8 How. Pr. 407, Himmelman v. Danos, 35 Cal. 441, Hinds V. Tweddle, 7 How. Fr. 278, Hite V. The State, 9 Yerg. 381, Hizer v. The State, 12 Ind. 830, Hobbs V. Duff, 23 Cal. 596, Hodgen v. Deckard, 45 Ind. 572, 253 80 102 302 370 421 329 36 13 371 429 109 814 264 230 23 161 170 17 423 300 253 442 183 51 314 183 425 350 828 43 198 244 67 411 1.54 145 302 15 189 195 884 328 Hodgman v. Western K. Co., 7 How. Pr. 492, 43, 47 Hoffman v. Pish, 18 Abb. Pr. 76, 427 V. Gordon, 15 Ohio St. 212, 396 Holbert v. St. Louis, Kansas City & Northern Ry. Co., 48 Iowa, 315, 417 Holford V. Hutch, 1 Dougl. 183, 236 Holland v. Jones, 9 Ind. 495, 101 HoUenbeck v. Clow, 9 How. Pr. 289, 344 Hollister v. HoUister, 10 How. Pr. 539, 176, 303 Holmes v. Broughton, 10 Wend. 75, 180 V. Eemsen, 20 Johns. 259, 263 V. Williams, 16 Minn. 164, 132, 180 Holstein v. Rice, 15 How. Pr. 1, 233 Homer v. Thwing, 3 Piclf. 492, 16 Hook V. Murdoch, 38 Mo. 224, 312, 426 V. White, 36 Cal. SCO, 358 Hopkins i;..Cothran, 17 Kan. 173, 396 Hopper V. Hopper, 11 Paige, 46, 342 Hoppough V. Sti-uble, 2 N. Y. Sup. Ct. 664, 350 Hopwood V. Patterson, 2 Greg. 49, 345 Horn V. Eberhart, 17 Ind. 118, 442 V. Ludington, 32 Wis. 73, 116, 162, 291 Hosley v. Black, 28 N. Y. 438, 157 Hotuhkiss «. Crocker, 15 How. Pr. 336, 144 House V. Lowell, 45 jNlo. 381, 170 0. Marshall, 18 Mo. 368, 371, 374 Howard v. Shores, 20 Cal. 281, 382, 384 Howe V. Russell, 36 Me. 115, 430 Howell V. City of Buffalo, 2 Abb. Dec. 412, 80 . V. Howell, 19 Wis. 247, 421 V. Howell, 15 Wis. 55, 355 Howland v. Kenosha County, 19 Wis. 247, 421 V. Willets, 5 Sandf. 219, 286 Howorth V. Scarce, 29 Ind. 278, 442 Howse V. Moody, 14 Fla. 59, 110 Hoyle V. Cornwallis, 1 Stra. 387, 191 Hoyt V. McNeil, 13 Minn. 390, 355 Hubbell 0. Powler, 1 Abb. Pr. (n. s.) 1, 893 V. Lerch, 58 N. Y. 237, 123 V. Medbury, 58 N. Y. 98, 58 Hubler v. Pullen, 9 Ind. 273, 858 Hudson V. Gilliland, 25 Ark. 100, 244 Huffman v. McDaniel, 1 Greg. 259, 417 Huggins V. Toler, 1 Bush, 192, 84 XXXVIU TABLE OF CASES CITED. Hughes V. Bank of Somerset, 5 Litt. 45, 252 Hulbert v. Young, 13 How. Pr. 413, 416 Hull V. Lyon, 27 Mo. 569, 104 V. Vreeland, 42 Barb. 543 ; s. v., 18 Abb. Pr. 183, 131 Humbert v. Rector, 7 Paige, 197, 205 Humphrey v. Burnside, 4 Bush, 215, 190 Humphreys v. Crane, 5 Cal. 173, 107 V. Magee, 13 Mo. 435, 272 V. McCall, 9 Cal. 59, 326 Hunt V. Chapman, 51 N. T. 555, 382 V. The Otis Co., 4 Mete. 464, 870 Hunter v. Mathis, 40 Ind. 356, 328 Hurst V. Litchfield, 39 Mo. 377, 157 Huston V. Craighead, 23 Ohio St. 198, 355 Hutts V. Hutts, 51 Ind. 581, 305 Elinois Central E. Co. v. "Wren, 43 111. 77, 194 Indianapolis & Chicago E. Co. v. Stephens, 28 Ind. 429, 189 Indianapolis & Cincinnati R. Co. v. Case, 15 Ind. 42, 189 . V. Rutherford, 29 Ind. 82, 329 Indianapolis, Peru & Chicago R. Co. 1). Petty, 30 Ind. 261, 442 Indianapolis, Pittsburg & Cleveland E. Co. V. Petty, 30 Ind. 261, 442 Ingle V. Jones, 43 Iowa, 286, 186 Ingram v. Lawson, 9 Car. & P. (38 E. C. L. 136), 325, 418 V. The State, 27 Ala. 17, 195 International Bank v. Pranklin Coun- ty, 65 Mo. 105, 439, 442 Isham V. Davidson, 52 N. T. 237, 371 Ives V. Miller, 19 Barb. 197, 384 V. Van EjJps, 22 Wend. 155, 370 Jaccard v. Anderson, 32 Mo. 188, 232, 302 Jackson v. Bradt, 2 Caines, 169, 25 V. Plumbe, 8 Johns. 378, 248 V. Robinett's Heirs, 2 Bibb, 292, 80 V. Varick, 2 Wend. 294, 431 V. Whedon, 1 E. D. Smith, 141, 329 Jackson Sharp Co. v. Holland, 14 Pla. 384, 253, 421 James v. Christy, 18 Mo. 162, 43 Jamison v. King, 50 Cal. 132, 317 Jarvis V. Peck, 19 Wis. 74, 874 Jasper v. Porter, 2 McLean, 579, 183 JefTersonville v. Shallcross, 35 Ind. 19, 417 Jeffras v. McKillop, 9 N. T. Sup. Ct. 351, 861 Jenkins v. Lorg, 19 Ind. 28, 329, 339 Jennings v. Eundall, 8 Term Rep. 335, 16 Jerome v. Whitney, 7 Johns. 321, 308 Jesup V. City Bank, 14 Wis. 331, 169 Joest V. Williams, 42 Ind. 568, 339 John V. Parmers' Bank, 2 Blackf. 367, 252 Johnson v. City of Indianapolis, 16 Ind. 227, 186 i>. Crawfordsville, Prankfort, Kokomo & Ft. Wayne R. Co., 11 Ind. 280, V. Dicken, 25 Mo. 580, V. Dodgson, 2 Mee. & W. 653, V. Jones, 16 Mo. 494, V. Kemp, 11 How. Pr. 186, V. Strader, 3 Mo. 359, Jones V. Axen, 1 Ld. Raym. 119, V. Bank of Illinois, Breese, 86, V. Bank of Tennessee, 8 B. Mon, 123, . Block, 30 Cal. 227, . Dowle, 9 Mee. & W. 19, . Pelch, 8 Bosw. 63, . Hays, 4 McLean, 521, 424 27 353 379 250 13 202 248 253 442 62, 68 183 V. Hoar, 5 Pick. 285, 18, 154, 244 V. Johnson, 10 Bush, 649, 127 V. Louderman, 39 Mo. 287, 158, 442 V. Overstreet, 4 Mon. 547, 191 V. Palmer, 1 Abb. Pr. 442, 119 V. Radford, 1 Camp. 83, 66 V. Sheboygan & Pond du Lac R. Co., 42 Wis. 306, 329 V. Steamship Cortes, 17 Cal. 487, 126, 293 V. Whitley, 3 Wils. 72, 300 Jonesboro & Pairmount Turnpike Co. u. Baldwin, 57 Ind. 86, 329 Jordan, etc., E. Co. v. Morley, 28 N. Y. 552,' 152 Joseph V. Holt, 37 Cal. 250, 307 Judd V. Mosely, 30 Iowa, 423, 108 V. Smith, 3 Hun, 190, 302 Justice V. Vermillion County, 2- Blackf. 149, 442 Kasson v. The People, 44 Barb. 347, 88 Kay V. Whittaker, 44 N. Y. 565, 332, 421, 422 TABLE or CASES CITED. XXXIX Kearney i>. King, 2 Barn. & Aid. 301, 189 Keep V. Kaufnian, 56 N. T. 332, 126 Keightley v. Walls, 24 Ind. 205, 383 Keller «. Johnson, 11 Ind. 337, 339 Kellogg V. Schuyler, 2 Denio, 73, 44 Kelly V. Downing, 42 N. T. 71, 160 Kemp V. Mitchell, 29 Ind. 163, 417 Kendall County v. Post, 4 Cent. L. J. 137, 181 Kennedy v. Cotton, 28 Barb. 59, 250 V. Shaw, 38 Ind. 474, 328 ■ V. Williams, 11 Minn. 314, 205, 355 Kent V. Rogers, 24 Mo. 306, 382 • V. Snyder, 30 Cal. 666, 355, 416 Kenworthy v. Williams, 5 Ind. 375, 421 Kercheval v. King, 44 Mo. 401, 437 Kerr v. Hays, 35 JST. T. 381, 425 Kerstetter v. Raymond, 10 Ind. 199, 157 Keteltas v. Myers, 19 N. Y. 281, 176 Kiefer v. Thoraass, 6 Abb. Pr. (rr. s.) 42, 422 Kimball v. Fernandez, 41 Wis. 329, 362, 363 V. Whitney, 15- Ind. 280, 107 King V. Arundel, Hobart, 109, 194 . V. Brereton, 8 Modern, 328, 317 V. Enterprise Ins. Co., 45 Ind. 43, 312, 417 V. Mason, 42 111. 223, 238 V. Orser, 4 Duer, 481, 83 V. Vanderbilt, 7 How. Pr. 385, 345 V. Wise, 43 Cal. 628, 382 Kingsley v. Bill, 9 Mass. 198, 438 V. Gilman, 12 Minn. 515, 831 Kinney v. Miller, 25-Mo. 576, 424 Kirk V. Young, 2 Abb. Pr. 453, 79 Kling V. Sejour, 4 La. An. 128, 180 Knarr v. Conaway, 42 Ind. 260, 346 Knowles v. Gee, 8 Barb. 300, 424 Koch V. Lay, 88 Mo. 147, 276 Koenig v. Steekel, 58 N. Y. 475, 88 Kohler v. Montgomery, 17 Ind. 220, 302 Kountz V. Brown, 16 B. Mon. 577, 14 Kowing V. Manly, 49 N. Y. 193, 85 Kribben v. Haycraft, 26 Mo. 396, 273 Kuhland v. Sedgwick, 17 Cal. 123, 332 Kurtz V. McGuire, 5 Duer, 660, 421 Kyser v. Cannon, 29 Ohio St. 359, 356 Lackey v. Vanderbilt, 10 How. Pr. 155, 119 Laokner v. TurnbuU, 7 Wis. 105, 429 Lain v. Shepardson, 23 Wis. 224, 828 LalM V. King, 1 Saund. 133, 194 Lampton v. Haggard, 3 Mon. 149, 191 Landau v. Levy, 1 Abb. Pr. 376, 121 Landers v. Bolton, 26 Cal. 893, 832 Lane v. Cameron, 38 Wis. 603, 125 V. Dobyns, 11 Mo. 106, 24 V. Gluckauf, 28 Cal. 288, 165 Lanfear v. Mestier, 18 La. An. 497, 180 Langdon v. Potter, 11 Mass. 813, 248 Lapping v. Duft'y, 47 Ind. 51, 50, 65 Larldn v. Noonan, 19 Wis. 82, 429 Larned v. Hudson, 57 N. Y. 151, 132 Larney v. Mooney, 50 Cal. 610, 332 Lattin v. McCarty, 41 N. Y. 107 ; ;,■. c, 8 Abb. Pr. 225, 168, 423 Lattimore v. Simmons, 13 Serg. & R. 183, 48 Laub V. Buckmiller, 17 N. Y. 626, 168 Lawe J). Hyde, 39 Wis. 345, 417 Lawrence v. Derby, 24 How. Pr. 133, 421 V. Pox, 20 N. Y. 268, 58, 242 ■ V. Martin, 22 Cal. 173, 44 V. Smith, 27 How. Pr. 327, 271 •^ V. Vilas, 20 Wis. 381, V. Wright, 2 Duer, 673, Leabo v. Detrick, 18 Ind. 414, V. Eenshaw, 61 Mo. 292, 884 Leaf u. Suton, 2 Dowl. (n. s.) 300, 353 Leavenworth v. Packer, 52 Barb. 182, 371 Ledwich v. McKim, 53 K Y. 307, Lee V. Ainslie, 4 Abb. Pr. 464, V. Hefley, 21 Ind. 98, Leese v. Sherwood, 21 Cal. 152, Leetch v. Atlantic Mutual Ins. Co., 4 Daly, 518, Legg V. Mayor of AnnapoliSj 6 Am. L. R. 83, Legge V. Tucker, 1 H. & N. 500, Legrand u. Hampden Sidney Col- lege, 5 Munf. 324, Lehmair v. Griswold, 40 N. Y. Supe- rior Ct. 100, Leler jj. Field, 52 N. Y. 621, Leonard u. Rogan, 20 Wis. 540, V. Sweetzer, 16 Ohio, 1, Leslie ■«. Leslie, 11 Abb. Pr. (n. s.) 311, 382 Leslie v. Wilson, 3 Brod. & B. 171, 14 Lestrade v. Barth, 19 Cal. 660, 351 Levy V. Brannan, 39 Cal. 485, 828 53 224, 233 846 292 283 410 65 429 181 14 188 375 839 162 95 xl TABLE or CASES CITED. Levy V. Haverstick, 51 Ind. 236, 411 V. The State, 6 Ind. 281, 182 Lewin v. Stewart, 10 How. Pr. 513, 204 Lewis V. Bank of itentucky, 12 Ohio, 132, 248 V. Coulter, 10 Ohio St. 451, 331, 425 V. Edwards, 44 Ind. 333, 425 V. Graham, 4 Abb. Pr. 106, 54 V. Harris, 31 Ala. 689, 190 V. Kendall, 6 How. Pr. 59, 317 V. Sheaman, 28 Ind. 427, 51 Leyde d. Martin, 16 Minn. 38, 331 Lick V. Diaz, 30 Gal. 65, 226 Lienan v. Lincoln, 2 Duer, 670, 212 Lightly V. Glouston, 1 Tauu. 113, 1-5, 154 Lignot V. Eedding, 4 E. D. Smith, 285, 379 Linden v. Hepburn, 3 Sandf. 668; s. c, 5 How. Pi-. 188, 122,164 Lindsaj' v. Attorney-General, 33 Miss. 508, 195 Lipperd v. Edwards, 39 Ind. 165, 414 Little V. Morgan, 31 N. H. 499, 429 i Littlejohn v. Greeley, 18 Abb. Pr. 311, 424 Livingston v. Bishop, 1 Johns. 290, 88 V. Smith, 14 How, Pr. 490, 312, 353 V. Tanner, 12 Barb. 481, 132 Lockwood J). Bigelow, 11 Minn. 113, 417 V. Jesup, 9 Conn. 272, 176 Lombard v. Cowham, 34 Wis. 486, 328, 351 Longchamp v. Kenny, 1 Dougl. 137, 154 Lonsdale u. Brown, 3 "Wash. C. Ct. 404, 232 Loomis V. Brown, 16 Barb. 325, 75 Lord V. Chesebrough, 4 Sandf. 696, 803 Lynd v. Picket, 7 Minn. 184, 832 - V. Tyler, 14 Pick. 156, 292, 294 429 Lottman v. Barnett, 62 Mo. 159, Louisville & Nashville E. Co. v. Thompson, 18 B. Mon. 735, 374 Love V. Oldham, 22 Ind. 51, 876 Lovejoy v. Murray, 3 Wall. 1, 88 V. Robinson, 8 Ind. 399, 376 Lovensohn v. Ward, 45 Cal. 10, 126 Lovett V. Cowman, 6 Hill, 223, 431 Low V. Mumford, 14 Johns. 426, 24, 87 Lucas V. New York Central E. Co., 21 Barb. 245, 117 Lumbert v. Palmer, 29 Iowa, 104, 151 Maoqueen v. Babcock, 13 Abb. Pr. 268, 431 Magee v. Kast, 49 Cal. 141, 299 Maher v. Hibernia Ins. Co., 67 N. T. 283, 350 Maitland v. Goldney, 3 East, 426, 26 Major V. The State, 2 Sneed, 11, 195 Makepeace v. Davis, 27 Ind. 352, 414 V. Moore, 5 Gilra. 474, 49 Mann v. Marsh, 21 How. Pr. 372, 414 Manufacturers' Bank v. Hitchcock, 14 How. Pr. 403, 422 Marley v. Smith, 4 Kan. 185, 358 Marsh v. Goodrell, 11 Iowa, 474, 107 Marshall v. Shafter, 32 Cal. 176, 828 Marston v. Swett, 66 N. Y. 206, 312, 353 Martin v. Densford, 3 Blaekf. 295, 80 V. Mattison, 8 Abb. Pr. 8, 131, 417 V. Martin, 51 Me. 366, 189 V. McDonald, 14 B. Mon. 548, 417 V. Payne, 9 Johns. 387, 28 arvin v. Adamson, 11 Iowa, 371, 95 ason V. Weston, 29 Ind. 561, 846 Massman v. Forrest, 27 Ind. 233, 189 asters v. Stratton, 7 Hill, 101, 14 Masterson v. Tie Claire, 4 Minn. 168, 199 Mather v. Hutchinson, 25 Wis. 27, 328 Matheny v. Golden, 5 Ohio St. 361, 80 Mattoon>. Baker, 24 How. Pr. 329, 387 MaxwelU. Campbell, 45 Ind. 360, 328 May D. Hanson, 6 Cal. 642, 107 Mayhew v. Eobinson, 10 How. Pr. 162, ■ 345 Mayor v. Bolton, 1 Bos. & P. 40, 248 V. Parker Vein Steamship Co., 8 Bosw. 300, 875 V. Signoret, 50 Cal. 298, 816 , 12 Abb. Pr. 800, 381 Mayor of Carlisle v. Blamire, 8 East, 487, 258 McAdow V. Ross, 58 Mo. 199, 344, 874 McAllen v. Woodcock, 60 ilo. 174, 77 McAllister v. Howell, 42 Ind. 15, 896, 442 V. Eeab, 4 AVend. 483 ; s. c, 8 Wend. 109, 370 McArdle v. McArdlo, 12 Minn. 98, 355 McArthur o. Green Bay & Missis- sippi Canal Co., 84 Wis. 139, 874 McCarty v. Beach, 10 Cal. 461, 269 V. Hall, 13 Mo. 480. 49 TABLE OF CASES CITED. Xli McClain v. Weidenmeyer, 25 Mo. 364, 50, 54 McConihe v. McClurg, 13 "Wis. 454, 421 MoCovvn V. Sims, 69 N. 0. 159, MoCullough V. Baker, 47 Mo. 401, V. Cox, 6 Barb. 386, McDonald v. Ateti, 1 Ohio St. 293, V. Neilson, 4 Cow. 178, McElmoyle v. Cohen, 13 Pet. 312, McGinnis v. The State, 24 Ind. 500, McGlothin v. Hemery, 44 Mo. 350, Mclntire v. Preston, 10 111. 48, MoKenzie v. L'Amoureux, 11 Barb. 516, McKinney v. McKinney, 8 Ohio St. 423, McKinnon v. Bliss, 21 N. Y. 206, McKinzie w. Matthews, 59 Mo. 99, McKyring v. Bull, 16 N. Y. 297, 327, 358, 363 McLaughlin ». Nicnols, 13 Abb. Pr. 244, McMahon v. Allen, 35 N. Y. 403, V. Bridewell, 3 Mo. App. 578, McMannus v. Smith, 53 Ind. 211, McMorris v. Crawford, 15 Ala. 271, Mcilurray v. Gifford, 5 How. Pr. 14, 317. McPike V. McPherson, 41 JIo. 521, Mead v. :ilali, 15 How. Pr. 347, Mechanics' Banking Assn. v. Spring Valley Shot & Lead Co., 13 How. Pr. 227, Medbury v. Watson, 6 Meto. 246, Meeks o. Hahn, 20 Cal. 620, Meeker v. Claghorn, 44 N. Y. 349, Meikel v. German Savings Fund So- ciety, 16 Ind. 181, Mellen v. Hamilton Pire Ins. Co., 17 N. Y. 615, Menifee v. Clark, 35 Ind. 304, Meredeth v. Lackey, 14 Ind. 529, Merrick v. Bank of the Metropolis, etc., 8 Gill, 59, Merrill v. Grinnell, 10 How. Pr. 31, ■ V. Ithaca & Oswego R. Co., 16 Wend. 586, Merritt v. Briggs, 57 N. Y. 651, Merritt v. Millard, 5 Bosw. 645, V. Nihart, 11 Iowa, 57, V. Seaman, 2 Seld. 168, Merry v. Fremon, 44 Mo. 518, 169 17 370 80 248 355 196 99 248 80 355 190 418 303 38 421 376 109 339 50 119 260 24 53 51 253 54 417 396 439 144 17 829 367 295 53 73 Meshke v. Van Doren, 16 Wis. 319, 182 Meyer v. County of Dubuque, 43 Iowa, 592, 404 V. Lowell, 44 Mo. 328, 58, 242 ti. Thornburgh, 15 Ind. 124, 107 Michael u. Bacon, 49 Mo. 474, 272 Middlebury College v. Cheney, 1 Vt. 348, 183 Miles V. Jones, 28 Mo. 87, 176, 312 !). McDermott, 31 Cal. 271, 423 Miller v. Billingsley, 41 Ind. 489, 242 V. Pulton, 47 Cal. 146, 351 V. Gaither, 3 Bush. 152, 371 V. Grandy, 13 Mich. 541, 81 V. Helm, 2 Smed. & M. 687, 49 V. Insurance Co., 1 Abb. N. C. 470, 328 V. Stettiner, 22 How. Pr. 518, 427 V. Williamson, 5 Md. 219, 49 V. Woodward, 8 Mo. 169, 80 Milliken v. Whitehouse, 49 Me. 527, 429 Mills V. Barney, 22 Cal. 240, 293 V. Garrison, 3 Keyes, 40, 118 V. Eice, 3 Neb. 76, 35-5, 425 V. Town of Jefferson, 20 Wis. 50, 421 Minturn v. Main, 3 Seld. 220, 59 Mitchell V. Hyde, 12 How. Pr. 460, 234 V. Shell, 49 Miss. 118, 108 V. Tarbutt, 5 Term Kep. 649, 87 Modawell v. Holmes, 40 Ala. 391, 190 Moir V. Dodson, 14 Wis. 279, 409 Mole V. Smith, Jacob, 490, 109 Molony v. Dows, 15 How, Pr. 261, 149, 423 Mondell v. Steel, 8 Mee. & W. 858, 370 Montfort v. Hughes, 3 E. D. Smith, ,591, 83 Montgomery v. Middlemiss, 21 Cal. 103, 101 Monroe v. Skelton, 36 Ind. 302, 116, 169 Mooney v. Musser, 34 Ind. 373, 422 Moore v. Caruthers, 17 B. Mon. 669, 371 V. Murrah, 40 Ala. 573, 108 V. Noble, 53 Barb. 42-5, 292 V. Smith, 10 How. Pr. 361, 118 More V. Bennett, 48 Barb. 229, 805 V. Massini, 32 Cal. 595, 112 Morehouse v. Crilly, 8 How. Pr. 431, 181 Morgan v. Bouse, 53 Mo. 219, 416 v.Hawkeyelns. Co.,37Ind.359, 341 „. Morgan, 2 Wheat. 290, 108 xlii TABLE OF CASES CITED. Morgan v. Eeid, 7 Abb. Pr. 215, 57 V. Spangler, 20 Ohio St. 38, 383 V. The State, 12 Ind. 448, 196 Morris v. Cleasby, 1 Man. & Sel. 576, 59 V. Hoyt, 11 Mich. 9, 109 V. Rexford, 18 N". Y. 552, 14 Morrison v. Lovejoy, 6 Minn. 319, 379 V. Bogers, 2 Scam. 317, 13 Morse v. Eathburn, 49 Mo. 91, 374 Morss V. Elmendorf, 11 Paige, 277, 162 Mortland v. Holton, 44 Mo. 58, 382 Morton v. Waring, 18 B. Mon. 82, 228 V. Weil, 33 Barb. 30, 73 Mosely v. Graydon, 4 Strobh. 7, 49 Moser v. Jenkins, 5 Oreg. 447, 332 Moses V. Arnold, 43 Iowa, 187, 13 Mosselman v. Caen, 1 Hun, 647, 263 Mossman v. Forest, 27 Ind. 233, 189, 198 Mott V. Burnett, 2 E. D. Smith, 50, 344 Moulton V. Walsh, 30 Iowa, 361, 355 Mowry v. Adams, 14 Mass. 327, 53 Muir V. Gibson, 8 Ind. 187, 108 Mulholland v. Bapp, 50 Mo. 42, 412 Mulvehall v. Milward, 11 K Y. 343, 28 Murphy v. Estes, 6 Bush, 532, 119 V. Hubble, 2 Duv. 247, 374 V. Booney, 45 Gal. 78, 116 Myers v. Burns, 35 N. Y. 269, 371, 375 V. Machado, 14 How. Pr. 149 ; a. <;., 6 Abb. Pr. 198, 250, 409 V. The State, 47 Ind. 293, 107 Naglee v. Palmer, 7 Cal. 543, 384 Nash V. McOauley, 9 Abb. Pr. 159, 119 National Bank of Michigan v. Green, 33 Iowa, 140, 346 National Eire Ins. Go. v. McKay, 21 N. Y. 191, 386 National Ins. Co. v. Bowman, 60 Mo. 252, 252, 253 Neaderhauser v. The State, 28 Ind. 257, 189 Nellis V. De Eorest, 16 Barb. 67, 810 Nelson v. Brodhaok, 44 Mo. 596, 328, 344, 356 Newberry v. Garland, 31 Barb. 121, 36 Newcomb v. Dewey, 27 Iowa, 381, 101 V. Horton, 18 Wis. 566, 80 Newton v. Allis, 12 Wis. 378, 429 V. Bronson, 13 N. Y. 587, 285 New Haven & Northampton Co. v. Quintard, 6 Abb. Pr. (n. s.) 128, 329 New Orleans Canal & Banking Co. V. Templeton, 20 La. An. 141, 180 New York & New Haven K. Co. u. Schuyler, 7 Abb. Pr. 41 ; s. o., 17 N. Y. 592, 411, 414 New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357, 116, 162, 168 Nichol V. Alexander, 28 Wis. 118, 411, 423 Nichols V. Jones, 6 How. Pr. 855, 424 V. Michael, 23 N. Y. 264, 83 Noel V. Hudson, 13 B. Mon. 204, 293 Nolte V. Libbert, 34 Ind. 165, 264 Nones v. Hope Mutual Life Ins. Co., 8 Barb. 541 ; s. c, 5 How. Pr. 96, 405 Norden v. Jones, 33 Wis. 600, 13, 19, 244, 881 Norris v. Badger, 6 Cow. 449, 232 North «. Bradway, 9 Minn. 183, 110 Northup V. Mississippi Valley Ins. Co., 47 Mo. 435, 352 Norton v. Vultee, 1 Hall, 384, 310 Norvell v. McHenry, 1 Mich. 227, 199 Oakley v. Devoe, 12 Wend. 196, 422 Ober V. Pratte, 1 Mo. 80, 189 Ockendon v, Barnes, 43 Iowa, 615, 619, 212, 339 O'Connerw. O'Conner, 27Ind. 69, 362 O'Connor v. Koch, 56 Mo. 253, 196, 420, 424 O'Donald v. Evansville, Indiana & Cleveland E. Co., 14 Ind. 259, 251 Ohio & Mississippi E. Co. v. Hem- berger, 43 Ind. 462, 424 V. Tindall, 18 Ind. 866, 32 Olcott V. Carroll, 39 N. Y. 437, 314, 425 Oldfield V. New York & Harlem E. Co., 14 N. Y. 310, 211 Oldtown & Lincoln E. Co. v. Veazie, 39 Me. 571, 248 Olive V. Townsend, 16 Iowa, 430, 53 Onson V. Gown, 22 Wis. 329, 351 Ord V. McKee, 5 Cal. 515, 57 Oroville & Virginia E. Co. ■». Plu- mas County, 37 Cal. 354, 339 Orton V. Noonan, 30 Wis. 611, 371 Osborn v. Bell, 5 Denio, 870, 15 Osborne v. Endicott, 6 Cal. 149, 353 Otis V. Mechanics' Bank, 35 Mo. 128, 412, 423 Ott ». Soulard, 9 Mo. 572, 183 TABLE OF CASES CITED. xliii Otwell V. Cook, 9 B. Mon. 357, 51, 382 Overton v. McParland, 15 Mo. 312, 80 Owen V. Frink, 24 Oal. 171, 73 V. Moody, 29 Miss. 82, 49 V. The State, 25 Ind. 107, 107 V. The State, 6 Sneed, 493, 182 Owens V. Gatewood, 4 Bibb, 494, 83 V. Eector, 44 Mo. 889, 374 Owings V. Hull, 9 Pet. 607, 183 Paddock v. Cameron, 8 Cow. 212, 83 Page V. Boyd, 11 How. Pr. 415, 207 V. Faucet, 1 Cro. 227, 191 V. Freeman, 19 Mo. 421, 82, 88 Palmer v. Davis, 28 N. Y. 242, 36, 407, 414 15 252 54, 67, 08 183 442 189 59 355 155 33 379 53 236 ■ V. Hand, 13 Johns. 435, ■ V. Lawrence, 3 Sandf. 161, ■ V. Smedley, 28 Barb. 468, Papin V. Eyan, 32 Mo. 21, Parish v. Wilhelm, 63 N. C. 50, Park V. Larkin, Overt. 17, Parker v. Beasley, 2 Mau. & Sel. 423, V. Berry, 12 Kan. 351, Parks V. Campbell, 2t Ohio St. 280, Parrott v. Barney, Dpady, 405, Parsons v. Sutton, 66 N. T. 92, Patchen v. Wilson, 4 Hill, 57, Patten v. Deshon, 1 Gray, 325, Patterson v. McCausland, 3 Bland, 69, Pattison v. Adams, 7 Hill, 126, V. Shaw, 6 Ind. 377, Patton V. Gurney, 17 Mass. 182, Payne v. Treadwell, 16 Cal. 220, 183, 190, 226 Peabody v. Bloomer, 3 Abb. Pr. 353, 382 V. Washington County Mutual Ins. Co., 20 Barb. 339, Pearce v. Mclntire, 29 Mo. 423, Pease v. Phelps, 10 Conn. 62, V. Rush, 2 Minn. 107, Pearson v. Cummings, 28 Iowa, 344, V. Milwaukee & St. Paul E. Co., 45 Iowa, 497, Peck V. Elder, 2 Sandf. 126, Peck V. Hensley, 21 Ind. 344, V. Martin, 17 Ind. 115, V. Eoot, 12 K. Y. Superior Ct. 547, V. School District, 21 Wis. 517, 212 101 24,84 411 424 418 51 60 119 73 121 442 292 80 Pecker v. Cannon, 11 Iowa, 20, 107 Peddicord v. Whittam, 9 Iowa, 471, 95 Peden v. King, 30 Ind. 181, 427 Pelly V. Bowyer, 7 Bush, 613, 76 Pennsylvania Salt Manufacturing Co. V. Neil, 54 Pa. St. 9, 440 Pensenneau v. Pensenneau, 22 Mo. 27, 164 People V. Bennett, 5 Abb.-Pr. 384, 181 V. City of New York, 8 Abb. Pr. 7, 411 — - V. City of New York, 28 Barb. 240, 414 V. Commissioners, 54 N. Y. 276, 181 V. Crooks, 53 N. Y. 648, 409 V. Jackson, 24 Cal. 630, 802 V. Jenkins, 17 Cal. 500, 107 V. Mahaney, 13 Mich. 481, 194 V. McCumber, 18 N. Y. 315, 422 V. Eains, 23 Cal. 127, 442 V. Eobinson, 17 Cal. 363, 186 V. Eyder, 12 N. Y. 433, 206, 282, 296 V. Tioga, 19 Wend. 73, 38 V. Tweed, 5 Hun, 863, 118 Perkins v. Woods, 27 Mo. 647, 104 V. Eogers, 35 Ind. 124, 855 Petersen v. Chemical Bank, 32 N. Y. 47, 49 Peyton v. Eose, 41 Mo. 267, 116, 170 Phalen o. Dingee, 4 E. D. Smith, 879, 95 Pharis v. Carver, 13 B. Mon. 236, 138 Phelps V. Wait, 30 N. Y. 78, 83 Phillips V. Gorham, 17 N. Y. 270, 201, 851 V. Hagadon, 12 How. Pr. 17, 414 Phinney v. Phinney, 17 How. Pr. 197, 804 Phoenix Bank v. Curtis, 14 Conn. 437, 248 V. Donnell, 40 N. Y. 410, 260, 408, 409 Piatt V. St. Clair's Heirs, 6 Ohio, 227, 80 Pickering v. Mississippi Valley Union. Transp. Co., 47 Mo. 457, 417 Picquet v Curtis, 1 Sumn. 480, 232 Pier V. Heinriohoffen, 52 Mo. 333, 151, 302 Pierce v. Kimball, 9 Me. 54, 182 Piercy v. Sabin, 10 Cal. 22, 329 Piggott V. Thompson, 3 Bos. & Pul. 147, 59 Pike V. Van Wormer, 5 How Pr. 1 71, 306 Pilkington v. Gaunt, 5 Dana, 410, 80 xliv TABLE OF CASES CITED. Pinckard v. Milmine, 76 HI. 453, 146 Pinckney v. Keyler, 4 E. D. Smith, 469, 382 )). Wallace, 1 Abb. Pr. 82, 411 Pindall v. Trevor, 30 Ark. 249, 437 Piser V. Stearnes, 1 Hilt. 86, 381 Pitcher v. Hennessey, 48 N. Y. 415, 350 Pitt V. Gentle, 49 Mo. 74, 276 Plant V. Schuyler, 4 Abb. Pr. (n. s.) 146, 421 Poe V. Domec, 48 Mo. 441, 278 V. Grever, 3 Sneed, 668, 180 Pope V. Cole, 55 N. Y. 124, 107 Porter v. Bleiler, 17 Barb. 149, 67, 68 V. Brackinridge, 2 Blackf. 385, 294 Portsmouth Livery Co. v. Watson, 10 Mass. 91, 182, 198 Potter V. Earnest, 45 Ind. 416, 121, 346 ■ V. Ellice, 48 N. Y. 321, 108 V. Sanders, 6 Hare, 1, 103 Pottgieser v. Dorn, 16 Minn. 204, 332 President v. Hamilton, 34 Ind. 506, 253 Prewitt V. Prewitt, 4 Bibb, 266, 80 Price V. Grand Kapids & Indiana E. Co., 13 Ind. 58, 312 V. McClave, 6 Duer, 544, 302, 806 Prindle v. Caruthers, 15 N. Y. 425, 176, 233, 308, 816, 325, 425 Prize Gases, 2 Black, 665, 190 Proctor V. Hannibal & St. Joseph K. Co., 64 Mo. 112, 32 Pullei V. Stanifortb, 11 East, 232, 370 Purple V. Norton, 13 Wend. 9, 359 Putnam v. Wise, 1 Hill, 240, 13, 15, 244 Quin V. Lloyd, 41 N. Y. 349, 358 V. Scott, 22 Minn. 456, 360 Eaconillat v. Rene, 32 Cal. 450, 207 Eadde v. Euckgaber, 3 Duer, 684, 207 Eagan v. Day, 46 Iowa, 239, 295 Eagland v. King, 37 Ala. 82, 199 Eainey v. Smizer, 28 Mo. 310, 77 Eimd V. Hubbard, 4 Mete. 252, 49 Eandall v. Howard, 2 Black, 585, 353 V. Shropshire, 4 Meto. (Ky.) 827, 212 Eankin v. Turney, 2 Bush, 555, 355 Eawlinson v. Stone, 3 Wilson, 1, 49 Eawlings v. Puller, 31 Ind. 255, 56 Eaymond v. Pritchard, 24 Ind. 318, 51 V. Eichardson, 4 E. D. Smith, 171, 329 Raymond v. Sturges, 28 Conn. 134, 292 Read v. Jeffries, 16 Kan. 534, 380 V. Sang, 21 Wis. 678, 414 Eeady v. Sommer, 37 Wis. 265, 425 Eeddick v. Moore, 65 N. 0. 382, 49 Eeddie v. Scoolt, Peake, 317, 28 Redfield v. Middleton, 7 Bosw. 649, 58 Eeed v. Harris, 7 Eobt. 151, 54 Reeve v. Praker, 32 Wis. 243, 233 Reilly v. Eucker, 16 Ind. 303, 382 Eemingtou v. King, 11 Abb. Pr. 278, 382 Rennick v. Chloe, 7 Mo. 197, 190 Rees V. Conococheague Bank, 5 Rand. 326, 248 Reubens v. Joel, 13 N. Y. 488, 10 Eex V. Luffe, 8 East, 202, 188 V. Wilde, 1 Lev. 296, 194 Ehodes v. Dympck, 33 N. Y. Su- perior Ct. 141, 411 Eicard v Sanderson, 41 K Y. 179, 58 Eice V. Eock Island & Alton E. Co., 21 111. 93, 252 V. Savery, 22 Iowa, 471, 58 Eichards v. Edick, 17 Barb. 260, 413, 425 V. Hicks, 1 Overt. 207, 183 Eichardson v. Earmei^ 36 Mo. 35, 442 V. Means, 22 Mo. 495, 35, 54 V. Williams, 2 Port. 239, 189 Eichter v. Poppenhausen, 42 N. Y. 373, 107 Eichtmyer». Eichtmyer, 50 Barb. 55, 414 Eicketson v. Eichardson, 19 Cal. 330, 379 Ridder v. Schumahara, 10 Barb. 688, 95 Riddick v. Moore, 65 N. C. 382. 49 Riddle v. Park, 12 Ind. 89, 396 Ridenour v. Mayo, 29 Ohio St. 138, 421, 427 Riemer v. Johnke, 37 Wis. 258, 425 Rightmyre v. Durham, 12 Wend. 245, 44 Eigsbee v. Trees, 21 Ind. 227, 169 Ring V. McCoun, 10 N. Y. 268, 285 Rippstein v. St. Louis Mutual Life Ins. Co., 57 Mo. 86, 345 Risley v. Squire, 53 Barb. 280, 118 Robbins v. Deverill, 20 Wis. 150, 54, 56 V. Lincoln, 12 Wis. 1, 332 V. Wells, 26 How. Pr. 16 ; n. c, 18 Abb. Pr. 191, 409 Roberts v. Evans, 43 Cal. 380, 13 V. Marchant, 1 Hare, 547, 108 V. Treadwell, 50 Cal. 520, 201 TABLE OF CASES CITED. xlv Eobertson v. The Great Western E. Co., 10 Sim. 3U, 109 Eobinson v. Allen, 37 Iowa, 27, 355 r. English, 84 Pa. St. 824, 440, 442 I'. L'Engle, 13 Pla. 482, 380 V. Kice, 20 JIo. 229, 128 V. Wheeler, 25 N. Y. 256, 33 Kochester Bank v. Suydam, 5 How. Pr. 218, 206 Eodgers V. The State, 50 Ala. 102, 196 Rogers v. City of Milwaukee, 13 Wis. 610, " 207 V. G-ossnell, 51 Mo. 466, 58 V. Greenbush, 57 Me. 441, 244 V. King, 8 Paige, 211, 80 V. Lafayette Agricul. Works, 52 Ind. 296, 407 • V. Parham, 8 Ga. 190, 17 Rolleston v. Morton, 1 Dr. & Wal. 171, 101 Rome Exchange Bank v. Eames, 1 Keyes, 588, 161 Roosevelt v. Draper, 28 N. T. 318, 81 Root .V. Illinois Central R. Co., 29 Iowa, 102, 251 V. King. 7 Cow. 618, 359 Rose V. Peyton, 41 Mo. 257, 116 Rosencrantz v. Rogers, 40 Cal. 489, 147 Ross V. Mather, 51 N. Y. 103, 292, 293 Roth V. Palmer, 27 Barb. 652, 13, 15 Rothwell V. Morgan, 37 Mo. 107, 312, 426 Eousch V. Duff, 35 Mo. 312, 232 Rowe V. Smith, 45 N. Y. 230, 86 Russell V. Clapp, 7 Barb. 482, 329 V. Tomlinson, 2 Conn. 206, 83 Rutledge v. Corbin, 10 Ohio St. 478, 75 Ryan v. Farmers' Bank, 5 Kan. 658, 251 V. Vallandingham, 7 Ind. 416, 252, 253 Sabin v. Austin, 19 Wis. 421, 121 Sadler v. Leigh, 4 Camp. 195, 59 Saegon v. Burns, 4 Minn. 141, 109 Sagorft!. New York & New Haven E. Co., 21 How. Pr. 455, 481 Sampson v. Shaw, 101 Mass. 145, 278 Samuels v. Evening Mail Assn., 52 N. Y. 625, 421 San Eranoisco Gas Co. v. City of San Francisco, 9 Cal. 453, 326 Sands v. St. John, 36 Barb. 628, 205, 355 18 Sanders v. Anderson, 21 "Mo. 402, 207 Sangstor v. Butt, 17 Ind. 354, 410 Sargent v. Morris, 3 Barn. & Aid. 277, 59 Sasscer v. Farmers' Bank, 4 Md. 409, 191 Saueri). Steinbauer, 14 Wis. 70, 116, 169 Savage v. Corn Exchange Fire & In- land Nav. Ins. Co., 4 Bosw. 1, 329 B. Mcviam, 1 Blackf. 176, 53 Savings Bank v. Horn, 41 Iowa, 55, 251 Sawyerv. Warner, 15 Barb. 283, 207, 328 Saxton V. Johnson, 10 .Johns. 418, Sayles v. Wooden, 6 How. Pr. 84, Scantlin v. Allison, 12 Kan. 8-5, Schaetzel v. Germantown Farmers' Mut. Ins. Co., 22 Wis. 412, Schaus V. Manhattan Gas Co., 36 N. Y. Superior Ct. 262; s. o., 14 Abb. Pr. (n. s.) 371, 827, 329 Scbeer v. Keown, 34 Wis. 349, Schehan u. Malone, 71 N. C. 440, Schell V. Leland, 45 Mo. 2S9, Schenk v. Evoy, 24 Cal. 104, Schermerhorn v. Van Allen, Barb. 29, Scheunert v. Kaehler, 28 Wis. 524, Schiefelin v. Hawkins, 1 Daly, 289, School District v. Baisdell, 6 N. H. 197, V. Benson, 31 Me. 384, Schrook v. Cleveland, 29 Ohio St. 499, 213, 263, 425 Schubart o. Harteau, 84 Barb. 447, 379 Schulz V. Johnson, 5 B. Mon. 497, Scilly't;. Dally, 2 Salk. 562, Scofleld V. Van Syckle, 23 How. Pr. 97, Scott V. Jackson, 12 La. An. 640, V. Scott, 17 Md. 78, V. Searles, 7 Smed. & M. 498, Scouler v. Plowright, 10 Moore, 446, Scovill V. Barney, 4 Oreg. 288, Scranton v. Farmers & Mechanics' Bank, 33 Barb. 527, Seager v. Burns, 4 Minn. 141, Searsburgh Turnpike Co. v. Cutler, 6 Vt. n5, Secor V. Lord, 3 Keyes, 525, Secor V. Sturgis, 16 N. Y. 548, See V. Cox, 16 Mo. 166, V. Partridge, 2 Duer, 463, Seeley v. Edgell, 17 Barb. 580. Sample v. Hagar, 27 Cal, 163, 308 817 57 332 323 331 408 325 329 374 382 248 356 48 300 411 195 196 49 26 332 264 109 252 58 118 207 126 329, 384 183 xlvi TABLE OF CASES CITED. Sentinel Co. v. Thompson, 38 "Wis. 489, 423 Seward v. Torrence, 6 N. T. Sup. Ct. 328, 358 Shalor v. Van Wormer, 33 Mo. 386, 441, 442 Shanagel v. Reay, 47 Cal. 608, 430 Sharp V. Gray, 5 B. Mon. 4, 88 V. Holland, 14 Fla. 384, 421 Shaw V. The State, 3 Sneed, 86, 191 V. Tobias, 3 Comst. 188, 181 Sheldon v. Hopkins, 7 Wend. 435, 303 V. Hoy, 11 How. Pr. 11, 145 D. Kibbe, 3 Conn. 214, 88 Sherman v. Ballou, 8 Cow. 304, 67 — '— V. New York Central R. Co., 22 Barb. 239, 207 Shernecker v. Thein, 11 Wis. 556, 430 Sherwood v. Saxton, 63 Mo. 78, 204, 353 Shields v. Davis, 6 Taun. 65, 59 Shipman v. The State, 42 Wis. 377, 194 Shoe & Leather Bank v. Brown, 9 Abb. Pr. 218, 250 Shore v. Smith, 15 Ohio St. 173, 131 Shropshire v. Conrad, 2 Mete. (Ky.) 143, 380 Shultz V. Depuy, 3 Abb. Pr. 252, 151 V. Pacific R. Co., 36 Mo. 13, 32 V. Winter, 7 Nev. 130, 13 Simpson v. Rouse, 65 N. C. 34, 109 Sinclair v. Pitch, 3 E. D. Smith, 677, 121 Sinton v. Steamboat R. R. Roberts, 46 Ind. 478, 427 Sipperly v. Troy & Boston R. Co., 9 How. Pr. 83, 122 Skinner v. Henderson, 10 Mo. 205, 272 V. Stuart, 18 Abb. Pr. 442, 416 Slack V. Lyon, 9 Pick. 62, 437 Slayback v. Jones, 9 Ind. 470, 376 Smith V. Bartholomew, 1 Mete. 276, 271 • ■ V. Cooker, Cro. Car. 512, 25 V. Pah, 15 B. Mon. 443, 312 V. Hallock, 8 How. Pr. 73, 122 V. Harris, 43 Mo. 562, 38 ■ V. Henry County, 15 Iowa, 385, 418 V. Heusten, 6 Ohio, 101, 81 V. Kennett, 18 Mo. 154, 40 V. Leland, 2 Duer, 497, 241 V. Levinus, 4 Seld. 472, 264 V. Oldham, 5 Mo. 483, 64 V. Rothbun, 66 Barb. 402, 80 1;. Richmond, 19 Oal. 476, 275 Smith V. Richmond, 19 Cal. 481, 205 V. Schulenberg, 34 Wis. 41, 13 V. Sherman, 4 Cush. 408, 48 V. Tallaposa County, 2 Woods, 574, 183 V. Weed Sewing Machine Co., 26 Ohio St. 562, 251 V. Wells, 20 How. Pr. 158, 344 Snead v. McCoull, 12 How. 407, 429 Sneed v. Mitchell, 1 Hayw. 289, 66 Snowden v. Wilas, 19 Ind. 10, 425 Snyder v. Snyder, 25 Ind. 399, 119, 121 Society, etc., v. Pawlet, 4 Pet. 480, 248 Soulard v. City of St. Louis, 36 Mo. 546, 245 Spanagel v. Reay, 47 Cal. 608, 430 Sparhawk v. Union Passenger Ry. Co.,54Penn. 401, 81 Sparks v. Heritage, 45 Ind. 66, 828, 424 Spear v. Downing, 84 Barb. 522, 314, 416 Spence v. Hogg, 1 Col. 226, 109 ». Spence, 17 Wis. 448, 314 Spencer v. Babcock, 22 Barb. 326, 385 V. London & Birmingbam Ry. Co., 8 Sim. 193, 81 Spier V. Robinson, 9 How. Pr. 324, 116 Spies V. Accessory Transit Co., 5 Duer, 662, 425 Spooner v. Keeler, 51 N. T. 527, 360, 361 Sprague v. Kneeland, 12 Wend. 161, 83 Springer v. Clay County, 35 Iowa, 241, 355 Stadler v. Parmlee, 10 Iowa, 23, 296 Standish v. Dow, 21 Iowa, 363, 418 Stanford Paving Co. v. Monheimer, 41 N. T. Superior Ct. 184, 330 St. Anthony Mill Co. v. Vandall, 1 Minn. 246, 54 St. John V. GriflBth, 1 Abb. Pr. 39, 207 , 2 Abb. Pr. 198, 57 St. Paul Division v. Brown, 9 Minn. 157, 246, 251 State 1;. City of Murfreesboro, 11 Humph. 217, 182 V. Clifton, 24 Mo. 376, 191 V. Davis, 35 Mo. 408, 118 V. Delesdenier, 7 Texas, 76, 182 V. Dulle, 45 Mo. 269, 118 V. Hambleton, 22 Mo. 452, 191 V. Jackson, 39 Me. 291, 186 V. Matson, 38 Mo. 489, 264 TABLE OP CASES CITED. xlvii State V. Minnick, 15 Iowa, 123, 195 V. Patton, 42 Mo. 530, 145, 264 V. Postlewaite, 14 Iowa, 446, 199 V. Eiclimond, 3 Mo. App. 672, 421 V. Saline County Court, 51 Mo. 350, 81 V. Thornton, 56 Mo. 325, 70 V. Townsley, 56 Mo. 107, 309 V. 'Williams, 48 Mo. 210, 352, 396 V. "Williams, 5 Wis. 308, 195, 196 V. "Worrell, 25 Mo. 212, 186 State Bank v. Curran, 10 Ark. 142, 199 Stearns v. Burnham, 5 Me. 261, 49 V. Dubois, 65 Ind. 267, 119 Stebbins v. Palmer, 1 Pick. 71, 48 Stedman v. Bates, 1 lid. Eaym. 64, 67 Stefiy i;. Carpenter, 37 Pa. St. 41, 429 Stephen v. The State, 11 Ga. 241, 191 Stephens v. Magor, 25 Wis. 533, 116, 169 V. Muir, 8 Ind. 352, 102 Stephenson v. Doe, 8 Blaokf. 508, 186 Stern v. Drinker, 2 E. D. Smith, 401, 312 Stembergeru. McG-overn, 56 N.T. 12, 162 Stevens v. Able, 35 Kan. 684, 380 V. Bowers, 1 Harr. (N. J.) 16, 66 V. Brooks, 23 "Wis. 196, 429 V. Thompson, 5 Kan. 305, 358 Stevenson v. Judy, 49 Mo. 227, 423 V. Lambard, 2 East, 575, 236 Stewardson v. "White, 3 Har. & McH. 455, 288, 294 Stewart v. Balderston, 10 Kan. 131, 43 — V. Beebe, 28 Barb. 34, 263 V. Carter, 4 Neb. 564, 169 Stieber v. "Wenzel, 19 Mo. 613, 305 Stilwell V. Chappell, 30 Ind. 72, 376 Stillwell V. Hurlburt, 18 N. T. 374, 57 V. Kellogg, 14 "Wis. 461, 116, 169 Stiver v. Stiver, 8 Ohio, 217, 80 Stockbridge Iron Co. v. Mellon, 5 How. Pr. 439, 119 Stockdale v. Hansard, 9 Ad. & E. 107, 194 Stockett V. "Watkins, 2 Gill & J. 326, 244 Stoddard v. Onondaga Annual Con- ference, 12 Barb. 573, 260 V. Treadwell, 26 Cal. 294, 158 Stokes V. Clendon, 3 Swanst. 150, 101 Stone V. Buckner, 12 Smed. & M. 73, 109 Stout V. Noteman, 30 Iowa, 414, 95 V. Stout, 44 Pa. St. 467, 431 Stoutenburg v. Lybrand, 13 Ohio St. 228, 425 Stowell V. Eldred, 39 "Wis. 614, 367 Stratton v. Allen, 7 Minn. 502, 417 Stroebe v. Fehl, 22 "Wis. 337, 176 Strong V. Sproul, 53 N. Y. 497, 421 Stroud V. Barnett, 3 Dana, 392, 80 Struver v. Ocean Ins. Co., 9 Abb. Pr. 23, 422 Sturges V. Burton, 8 Ohio St. 215, 119, 120, 312, 356 Sublette v. Tinney, 9 Cal. 425, 205 Sullivan v. Davis, 4 Cal. 291, 132 V. Union Pacific R. Co., 3 Dill. 334, 31 Summers v. Parish, 10 Cal. 347, 416 Sumner v. Brown, 34 Vt. 194, 429 • V. Tileston, 4 Pick. 308, 87 Supervisors v. Decker, 30 "Wis. 624, 116, 291, 293 Suydam v. Moore, 8 Barb. 358, 83 Swails V. The State, 4 Ind. 516, 198 Sweet V. Mitchell, 15 Wis. 641, 429 Swepson v. Harvey, 66 N. C. 436, 421 V. Rouse, 65 K C. 34, 109 Swett V. Ingerson, 12 How. Pr. 331, 120, 122 • V. Tuttle, 14 N. T. 466, 345 Swift V. Ellsworth, 10 Ind. 205, 51 V. Swift, 46 Cal. 266, 66 Swinney v. Nave, 22 Ind. 178, 294, 363 Swords V. Buss, 13 Iowa, 603, 423 Talbert v. Singleton, 42 Cal. 390, 351 Tamisier v. Cassard, 17 Abb. Pr. 187, 329 Tamm v. Kellogg, 49 Uo. 118, 245 Tanner v. Davidson, 3 Bibb, 456, 80 Tapscott V. "Williams, 10 Ohio, 442, 67 Tapping v. Dutfy, 47 Ind. 57, 50 Tarbell v. Page, 24 111. 46, 252 Tarbox v. Supervisors, 34 Wis. 558, 356 Tar River Nav. Co. v. ISTeal, 3 Hawks, 520, 252 Tasker v. Small, 3 Myl. & Or. 63, 109 Tate V. Ohio & Mississippi R. Co., 10 Ind. 174, 73, 75 Taylor v. Graham, 18 La. An. 656, 180 V. Rennie, 35 Barb. 272, 195 Taylor u. Steamboat Robert Camp- bell, 20 Mo. 254, 57 V. Stowell, 4 Mete. (Ky.) 175, 383 V. Zepp, 14 >Io. 482, 265 Teetshorn v. Hull, 30 Wis. 162, 314 Templeton v. Morgan, 16 La. An. 438, 195 xlviii TABLE OF CASES CITED. Tenant v. Pflster, 45 Cal. 270, 417 Texier v. Gouin, 5 Duer, 389, 358 Thatcher v. Morris, 1 Kern. 437, • 287 Thayer v. Cambell, 9 Mo. 277, 104 Thomas v. Rumsey, 6 Johns. 26, 84 Thompson ». Erie &. Co., 45 N. T. 468, 422 V. Greenwood, 28 Ind. 327, 845 V. Haskell, 21 ni. 215, 199 V. Kessel, 30 N. Y. 383, 374, 422 : V. North Missouri R. Co., 51 Mo. 190, 200 V. Sweetser, 43 Ind. 312, 328 V. Wilson, 2 N. H. 29J, 49 Thorn v. Tyler, 3 Bl'ackf. 504, 80 Thornton v. Crowther, 24 Mo. 164, 50 Throop V. Hatch, 3 Abb. Pr. 23, 180, 304 Thurman v. Stevens, 2 Duer, 609, V. Virgin, 18 B. Mon. 785, Tibbits V. Percy, 24 Barb. 39, Timraons v. Dunn, 4, Ohio St. 680, Tinsley v. Tinsley, 15 B. Mon. 454, Tomkins v. Ashby, 1 Moo. & M. 32, Township Board of Education, v Hackman, 48 Mo. 243, Townsend v, Jemison, 9 How. 407, Traver v. Eighth Avenue E. Co., i Abb. Pr. (N. s.) 46 ; s. c, 3 Keyes, 497, Treasurer v. Hall, 3 Ohio, 225, Triscony v. Orr, 49 Gal. 612, Trisler v. Trisler, 38 Ind. 282, Trott V. Sarchett, 10 Ohio St. 241, Trowbridge v. Porepaugh, 14 Minn. 133, 83, Truesdell v. Rhodes, 26 Wis. 215, Trumbull County Mut. Eire Ins. Co. V. Horner, 17 Ohio, 407, Trustees v. Odlin, 8 Ohio St. 293, 853 368 95 374 374 418 417. 355 427 176 314, 339 414 417 123 411 252 334, 425 o. Tryon, 1 Denio, 451, 250 Tucker v. Ladd, 4 Cow. 47, 422 V. Shiner, 24 Iowa, 334, 95 V. St. Louis Life Ins. Co., 63 Mo. 588, 390 Tuggle V. St. Louis, Kansas City & Northern E. Co., 62 Mo. 425, 293 Turner v. Booker, 2 Dana, 336, 44 V. First National Bank of Keo- kuk, 26 Iowa, 562, 414 V. Hitchcock, 20 Iowa, 310, 85, 88 V. Boby, 3 Comst. 193, 303 Tyler v. Houghton, 25 Cal. 29, 85, 58 Tyson v. McGuineas, 25 Wis. 656, 38 Union India Rubber Co. v. Tomlin- son, 1 E: D. Smith, 364, 58 Union Marine Ins. Co. v. Osgood, 1 Duer, 707, 250 Union National Bank of Troy v. Bassett, 3 Abb. Pr. (n. s.) 359, 431 V. Mott, 27 N. Y. 633, 15 United States v. Barker, 1 Paine, 156, 232 ■ V. Burns, 5 JEcLean, 23, 198 ■ V. Morris, 10 Wheat. 246, 437 V. Palmer, 3 Wheat. 610, 197 V. Reynes, 9 How. 127, 185 t'. Turner, 11 How. 663, 183 Updegraff D. Trask, 18 Cal. 459, 5 J Upington v. Oviatt, 24 Ohio St. 282, 80 Upton V. Knoll, 32 Iowa, 121, 832 Urton V. Luckey, 17 Ind. 213, 417 Utica Ins. Co. v. Scott, 6 Cow. 608, 431 Vail V. Halton, 14 Ind. 344, 328 Van Alstyne v. Ereday, 41 N. Y. 174, 422 Vanblaricum v. Yeo, 2 Blackf. 322, 264 Van De Mark v. Van De Mark, 13 How. Pr. 372, 200 Vanderkemp v. Shelton, 11 Paige, 28, 101 Vanderwerker i. The People, 5 Wend. 530, 189 Vandewort v. Gould, 36 N. Y. 639, 132 Van Epp.s v. Harrison, 5 Hill, 63, 870 Van Gieson v. Van Gieson, 12 Barb. 520, 358 Van Schaick v. Third Avenue R. Co., 38 N. Y. 346, 58 Van Steenburgh v. Tobias, 17 Wend. 562, 83 Vanneman v. Powers, 56 N. Y. 39, 85 Varick c. Smith, 5 Paige, 137, 110 Vassault v. Austin, 32 Cal. 597, 421 Vassear v. Livingston, 13 N. Y. 248, 367 Vavasour v. Ormrod, 6 Barn. & Cress. 430, 203 Vermeule v. Beck, 15 How. Pr. 833, 123 Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. 46, 429 Viburt V. Frost, 8 Abb. Pr. 119, 409 Vilas V. Mason, 25 Wis. 810, 374 TABLE OF CASES CITED. xlix Village of Warren v. Philips, 30 Barb. 641;, 425 Virdeii o. Ellsworth, 15 Ind. 144, 95 Voorhis v. Childs, 17 N. Y. 354, 107 Voris r. The State, 47 Ind. 345, 107 Vose V. Woodford, 29 Ohio St. 245, 328, 355 Vessel V. Cole, 10 Mo. 634, 28 Wachter v. Quenzer, 29 N. T, 547, 360, 361 Waddell v. Darling, 51 N. T. 827, 384, 386 201 375 384 236 353 132 116, 384 374 73 395 120 Wade 0. Kusher, 4 Bosw. 537, Wadley v. Davis, 63 Barb. 500, "Wagner J). Stocking, 22 Ohio St. 297, Walker's Case, Coke's Eep. 22, Walker v. Locke, 5 Cush. 90, u. Mitchell, 18 B. Mou. 546, V. Sedgwick, 8 Cal. 398, V. Wilson, 13 Wis. 522, Wall I.-. Fairley, 73 2>r. C. 464, Wallace v. Wilson, 30 Mo. 335, Waller c. Kaskan, 12 How. Pr. 28, Walrad v. Petrie, 4 Wend. 575, 308 Walrath v. Handy, 24 How. Pr. 353, 414 Walsh u. Hall, 66 N. C. 233, 374, 375 Wapello County v. Bighara, 10 Iowa, 39, 107 Ward V. Henry, 19 Wis. 76, 199 V. Wallace, 24 Ind. 226, 64 Warner v. Callender, 20 Ohio St. 190, 120 0. iiTelligar, 12 How. Pr. 402, 423 Warwick v. Mayor, 28 Barb. 210, 164 Washburn v. Franklin, 7 Abb. Pr. 8, 312 Water'oury u.Westervelt, 5 Seld. 598, 83 Waterman v. Hall, 17 Vt. 128, 9 Waters ;;. Bovell, 1 Wils. 223, 430 Waterville Mfg. Co. v. Bryan, 14 Barb. 182, 250 Watkins v. Jones, 28 Ind. 12, 328 — - i). Maule, 2 Jac. & W. 237, 49 Wayland v. Tysen, 45 N. Y. 281, 422 Weakly v. Bell, 9 Watts, 278, 332 Wea\ er v. Barden, 49 N. Y. 286, 330, 395 V. Hendrick, 30 Mo. 502, 363 V. MoElhenon, 13 Mo. 89, 191 V. Wabash & Erie Canal, 28 Ind. 112, 54, 57 Webb V. Morgan, 14 Mo. 428, 51 Webster v. Tibbits, 19 Wis. 438, 414 d Wedderspoon v. Eogers, 32 Cal. 569, 421 Weeks v. Pryor, 27 Barb. 79, 385 Weide v. Porter, 22 Minn. 429, ■ 207 Weinwick v. Bender, 33 Mo. 80, 50 Welch D. Bryan, 28 Mo. 30, 441,442 Well and Canal Co. v. Hathaway, 8 Wend. 480, 252, 254 Welles V. Webster, 9 How. Pr. 251, 264 Wellman v. Dismukes, 42 Wis. 101, 430 Wemple v. Stewart, 22 Barb. 154, 384 Westfall V. Stark, 24 Ind. 377, 426, 442 Weston V. Lumley, 33 Ind. 486, '344 Wetherbee v. Dunn, 32 Cal. 106, 195 Wetmore v. City of San Francisco, 44 Cal. 294, 51, 329, 358 Weyer v. Thornburgh, 15 Ind. 124, 107 Wheeler v. Billings, 38 N. Y. 263, 327, 328 V. Dakin, 12 How. Pr. 537, 176 c. Wheeler, 9 Cow. 34, 49 White V. Chouteau, 10 Barb. 202, 56, 59 0. Johnson, 1 Wash. (Va.) 159, 83 V. Joy, 13 N. Y. 83, 263, 437 V. Low, 7 Barb. 204, 288 V. Lyons, 42 Cal. 279, 162 V. Phelps, 14 Minn. 27, 50, 51 V. Smith, 46 N. Y. 418, 358 0. Turner, 1 B. Mon. 130, 43 Whitlock V. Castro, 22 Texas, 108, 189 Whitney v. Chicago & Northwestern R. Co., 27 Wis. 327, 119 V. Gauche, 11 La. An. 432, 189 V. Higgins, 10 Cal. 547, 103 Whittemore v. Ware, 101 Mass. 352, 437 Whittier v. Bates, 2 Abb. Pr. 477, 119 Whyte V. Rysden, Cro. Car. 20, 288 Wies V. Fanning, 9 How. Pr. 548 317 Wiggand v. Sichel, 33 How. Pr. 174, 15 Wiggins V. McDonald, 18 Cal. 126, 242 Wiles V. Suydam, 64 N. Y. 173, 126, 412 Wilhoit V. Hancock, 5 Bush, 572, 30 Wilkins V. Stidger, 22 Cal. 235, 152, 299 Wilkinson v. Hall, 1 Bing. (N. C.) 717, 67 Wilmot V. Richardson, 2 Keyes, 519, 15 Wills r. Kempt, 17 Cal. 98, 2G9 V. Wills, 34 Ind. 106, 152 Willet V. Willet, 3 Watts, 277, 13, 244 Willits V. Waite, 25 N. Y. 577, 263 Williams v. Bankhead, 19 Wall. 571, 96 V. Brown, 2 Keyes, 486, 51 V. Jones, 1 Bush, 628, 382 V. Norton, 3 Kan. 295, 50, 51 1 TABLE OF CASES CITED. V. Wieting, 3 N. Y. Sup. Ct. 439, 379 v: Willington, 1 H. Bin. 81, 59 Williiimson v. Allison, 2 East, 446, 292 V. Port, 14 Ind. 569, 316 Willson V. Cleaveland, 80 Cal. 192, 344 Wilson V. Barker, 4 Barn. & Aid. 614, 83 V. Noonan, 35 Wis. 321, 363 Winnipisseogee Lake Co. v. Young, 40 N. H. 420, 189, 247 Winftold Town Co. v. Maris, 11 Kan. 147, 407 Wing V. Dugan, 8 Bush, 583, 326 r. Hayden, 10 Bush, 276, 212 Winsluw V. Dousman, 18 Wis. 456, 110 Winter v. Baker, 50 Barb. 432, 314 Winters v. Kush, 34 Cal. 136, 57 Wiswell ;;. Teft't, 5 Kan. 263, 353 Wolf 0. Beales, 6 Serg. & U. 242, 384 V. H , 13 How. Pr. 84, 385 Wolcott V. McFarlan, 6 Hill, 227, 431 Wood V. Brown, 34 N. Y. 337, 161 V. Sceley, 32 N. Y. 103, 164 V. White, 4 Myl. & Or. 460, 109 Wooden v. Strew, io How. Pr. 48, 423 V. Waffle, 6 How. Pr. 145, 203, 423 Woodruff 0. G-arner, 27 Ind. 4, 377 Woodward v. Chicago & North- western K. Co., 21 Wis. 309, 189 V. Willcox, 27 Ind. 207, 121 Woodworth u. Knowlton, 22 Cal. 164, 332 Woolfork ^. Ashby, 2 Mete. (Ky.) 288, 25, 123 Worcester Medical Institution v. Harding, 11 Cush. 2S5, 252, 253 Workman o. Campbell, 46 Mo. 305, 276 Worrall v. Munii, 38 N. Y. 187, 168 Wright n. Bundy, 11 Ind. 398, 101 0. Hawkins, 28 Texas, 452, 183 1). Indianapolis & Cincinnati E. Co., 18 Ind. 168, 417 V. Jacobs, 61 Mo. 19, 165 V. Phillips, 2 Greene (Iowa), 191, 198 V. Salisbury, 46 Mo. 26, 383 V. Tinsley, 30 Mo. 383, 07 V. Wilcox, 19 Wend. 343, 83 Xenia Branch Bank v. Lee, 7 Abb. Pr. 372 ; s. „., 2 Bosw. 674, 371, 372, 379, 387 Young V. Bank of Alexandria, 4 Cranch, 384, 182 V. Catlett, 6 Duer, 437, 332 V. Duhme, 4 Jletc. (Ky.) 239, 417 — II. Marshall, 8 Bing. 43, 15 • i). Templeton, 4 La. An. 2-54, 180 Youngs V. Kent, 46 N. Y. 672, 331, 421 Yrissarri v. Clement, 3 Bing. 438, 193 Zabriskie ti. Smith, 13 N. Y. 322, 88, 43 Zane v. Zane, 5 Kan. 134, 355 Zehnor v. Beard, 8 Ind. 96, 417 Zion's Church v. St. Peter's Church, 5 Watts & S. 215, 248 PART I. OF THE ACTION. CHAPTER I. Of the Nature and Form of Actions. Section 1. The Terms "Civil Action" and "Cause of Action" defined. 2. Common-law Actions, how instituted and named. 3. Equitable Actions. 4. Name and Form of Action under the Code. 6. Continued. 6. Classification not dispensed with. 7. Continued — Illustrated by Suits in Equity. 8. The Distinction between Covenant Debt and Assumpsit not preserved. 9. The natural Classification of Actions. 10. We still may speak of legal and equitable Belief. § 1. The Terms "Civil Action" and "Cause of Action" defined. — "An action is the form of a suit given by law for the recovery of that which is one's due." — Jacob. " It is a legal demand of one's right." — Coke. " Actio nihil aliud est quam jus prosequendi in judicio quod alicui debetur." — Bracton. These definitions would seem to apply to actions for the recovery of a debt or of specific property, and to leave out of view those numerous cases where one seeks compensation for an injury. It is only in a loose sense that unliquidated, often conjectural, damages can be said to be a debt or due, although legally they heal the wound. And equitable relief — as, an injunction, or a decree removing a cloud upon title — cannot always be called a recovery of what is due. The New York Code of Procedure thus defined an action : " An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or preven- tion of a wrong, or the punishment of a public offense."^ So far as this applies to civil actions, it states two objects of an action, one of which includes the other — for how can a right be enforced or protected except by redressing or preventing its infringement, which is a wrong? If I were to venture a defini- 1^2. This definition has been adopted in the codes of several of the states. 3 § 3 or THE ACTION. [PART I. tion, I would drop the Avords " the enforcement or protection of a right," leaving as the object of a civil action " the redress or prevention of a wrong." A wrong is redressed by a writ of mandamus, by a judgment of restitution, of payment, and of damages ; it is prevented by injunction, by prohibition, by a judgment of interpleader, and for perfecting a title. As the action is a proceeding for the redress or prevention of a wrong, the cause of action must necessarily be the wrong which is com- mitted or threatened, and the object of the action is the specific relief which is sought.^ § 2. Common-law Actions. — Actions in the common-law courts were once commenced by original writ, which was issued out of chancery, in the name of the king, and which briefly stated the cause of action, and commanded the sherifl" to notify the defendant to appear in the court in which the suit was to be prosecuted and answer the plaintiff's complaint. The character of the claim and the gi'ound of action were indicated by the writ, and the narraiio, or declarationi, subsequently filed was but an amplification of the matter set forth in the writ. The wrongs complained of necessarily varied in character ; those of the same general complexion were classified together, and the vnrit assumed the name which indicated the character of the class and of the grievance. As the action was initiated by the writ, its name was applied to the action itself; hence we had the action of debt, the action of trespass, etc., and, under the authority given the chan- cellor to issue other writs to meet causes of action similar to those already provided for, there followed the numerous writs and actions of trespass on the case, which came to be resorted to in the larger class of grievances.' § 3. Equitable Actions. — But it was still found that the sub- ject often suffered a wrong when no remedy, or no adequate • For further inquiry as to tlie meaning of the important phrase " cause of action," as used in the new codes of procedure, see, post, oh. 9, J 113. 2 It should be unnecessary to inform the intelligent student that in ordinary actions the original writ has long been disused in England, and has seldom been resorted to in any of the United States. The first process now issued is a summons, and in cer- tain cases, and in some states, a capias ad respondendum. 4 CH. I.] NATUllE AND FORM OF ACTIONS. § 4 remedy, could be afforded him under imy of the ancient writs, or under those that had been authorized in consimili casu. Hence, in such cases, the king, as the fountain of justice, came to be applied to, through his chancellor, for specific relief, and the practice grew up of giving the petitioner the relief adapted to his grievance, and without much regard to that which could be obtained in common-law trials, the chancellor sometimes going so far as to enjoin the execution of judgments rendered by the king's judges. The student of our jurisprudence has noted the long controversies between the courts of common law and of chancery, and their settlement by the well-defined jurisdiction of each. In the courts of law, as those held by the king's judges were called, although the practice has been often modified to meet the ends of justice, the names and foi'ms of the personal actions have been preserved ; while in chancery there never was an original writ — no distinguishing technical names were given to bills of a dififerent nature, but the petition Avas first presented, setting out the facts in detail , and asking for a subpcBua against the defendants and foi- the relief which was sought. The answer, instead of being a brief formula, like a plea at law tendering issue, was required to be under oath, to be specific, and to make full discovery as to every fact alleged in the petition. § 4. Name and Form of Actions under the Code. — The sys- tem of code pleading, so called, though varying somewhat in detail in the difierent states where adopted, is one in its general aims, and the first blow given by it to the old system was to abolish all names and forms of actions. The language of the New York Code of Procedure was as follows : " Sec. 69. The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished, and there shall be in this state but one form of action for the enforcement and protection of private rights, and the redress of private wrongs, which shall be denominated a civil action." The follow- ing is the provision in the Ohio Code : " Sec. 3. The distinction between actions at law and suits in equity, and the forms of all actions and suits heretofore existing, are abolished, and in their place there shall be hereafter but one form of action, which shall 5 §,(i OF THE ACTION. [PART I. be called a civil action." Missouri was one of the earliest states to follow New York, and uses the following language : " Ait. 1, Sec. 1. There shall be in this state but one form of action for the enforcement or protection of private rights, and prevention or redress of private wrongs, which shall be denominated a civil action." The old distinctions are abolished in Missouri by im- plication. § 5. Continued. — The practice codes of Indiana, Kentucky, Wisconsin, Iowa, Minnesota, Arkansas, Kansas, Nebraska, Cali- fornia, Oregon, Nevada, North Carolina, South Carolina, Florida, and Colorado, so far as concerns pleadings, correspond substan- tially with those of the states named in the last section, and have all, in language of similar import, abolished the old forms of actions, and (except that in Kentucky, Iowa, Arkansas, and Ore- gon proceedings in equity are still kept distinct from actions at law) they have abolished the distinction between actions at law and suits in equity. They are all called civil actions, and, so far as it can be done by legislation, the forms and classification of actions, with the exceptions named, are SAvept away, so that we no longer have actions of assumpsit, of trespass, of replevin, bills in chancery, etc. The plaintiff, without giving any specific name to his proceeding, must set forth his wrong, and if, under the rules of law, his statement entitles him to relief of any kind, he will have a good complaint or petition. But it is only the form and the name of the action that is abolished. Distinctions be- tween the character of different actions necessarily arise from the nature of the wrong which is suffered and of the relief which is sought, and these are preserved. § 6. Classification not dispensed with. — Although the names and forms of actions have been thus abolished, it must not be supposed that the time usually spent in learning the distinctions mdicated by them has been spent in vain. The mere formu- las are of little present practical consequence ; but, aside from the importance of knowing our legal history, including the history of the law of procedure, most of these names will be in constant requisition as indicating the nature of the grievance, the evidence 6 CH. I.J NATURE AND FORM OF ACTIONS. § 8 required, and the measure of relief. The whole case often clus- ters around the name ; and the action is just as much an action of trover, or of replevin, or of ejectment, as though so called in the pleading. When the statute says that there shall be but one form of action, form, and not substance, is spoken of. Without classification there is no science. Such distinctions as exist in the nature of things must be recognized, and they are equally recognized whether a specific name be given to the suit or action, with a corresponding formula, or whether they arise from, and are known only by, the nature of the grievance and the charac- ter of the relief. § 7. Continued — Illustrated by Suits in Chancery. — In proceedings in equity the original application was called a bill ; there was no original writ ; there was simply a subpoena, which was the same in all ordinary cases — and yet the distinction at common law between different classes of actions was not more well defined than in equity, although in the latter it existed only in fact, and not in name and form. Thus there were bills for injunction, bills of interpleader, bills to reform instruments in writing, bills for specific performance, etc. The object of this provision of the Code is, not to destroy classification — that could not be done if attempted — but, as in equity practice, to make it natural and scientific, by leaving it to be predicated alone upon the character and object of the proceeding. Thus, with great propriety, we still use many of the old terms — no lono-er as essential names of specific forms of action, but rather as instruments of a rational classification — as convenient tech- nics that indicate the character of the wrong and object of the proceeding, and save the necessity of long descriptive phases. § 8. The Distinction between Assumpsit Debt and Covenant not preserved. — There is no reason why we should still speak of, and distinguish between, the actions of debt, of covenant, and of assumpsit. The old distinctions were artificial ; each action was based upon contract, and they should all be classed under one head ; for it does not matter, as regards the character of the action and nature of the remedy, whether the agreement be ver- 7 § 9 OF THE ACTION. [PART I. bal or in writing, and if the latter, "vrhether it be sealed or without a seal. The law may impose greater obligations upon persons whose agreements are under seal, or may give their con- tracts greater operative force, than if they had been made by parol ; and there is also a distinction, as regards their validity, between a class of contracts which are written and those which are verbal ; but so far as actions are concerned, all which are based upon contract are substantially of the same character, and should be classed together. The right is created by consent, by an obligation voluntarily assumed, and the wrong is in its breach. And, besides, these old" names, as to matters of substance, had not the certainty which should belong to all technics. The ac- tion of assumpsit was allowed when the i^arty sought to enforce any unsealed agreement, whether in writing or verbal, express or implied, and sometimes when there could have been no con- tract in fact. Debt covered the whole ground, if the amount due or the damages claimed were of such a nature as to be called a debt — that is, if they were liquidated — although, if the contract was in the form of a penal bond with conditions, it was sufficient if the penalty was certain, the actual liability being often very uncertain ; while covenant could be brought only upon sealed instruments.^ § 9. The natural Classification of Actions. — The following is a natural classification of actions in which the issues of fact are triable by jury, and it is one partially recognized by the statute, as will be seen in considering the subject of joinder of causes of action : * I. All actions brought for the recovery of money, where the wrong or cause of action is a breach of contract, whether express 1 The distinction between sealed and unsealed written agreements is at common law more radical than between those which are verbal and those in writing, but it is not founded in reason, and is slowly passing away. It has been abolished by stat- ute in the states of Kentucky (Gen. Stat. 1873, p. 249), of Indiana (Code Proc, I 273), of Iowa (Code 1873, § 2112), of California (Civil Code 1874, § 1629), of Kansas (Gen. Stat. 1868, p. 183), of Nebraska (Gen. Stat. 1873, p. 1001) ; and in some other states almost anything is recognized as a seal. Its general retention forcibly illustrates the conservatism of the legal mind, which makes it so diflScult to get rid of rules and distinctions when their original reasons no longer exist. ' Ch. 9, post. 8 CH. I.] NATURE AND FORM OF ACTIONS. § 9 or implied, and which were formerly called either covenant, delDt, or assumpsit. Implied agreements are often spoken of as obliga- tions created by law rather than by contract ; and there is a seeming inconsistency in still classing them with agreements which necessarily imply assent. If they are merely legal obliga- tions, like those created by a trespass, or by the relation of parent or husband, the classification would be clearly improper ; and the continued recognition of that class of promises known to the old law as springing from an injury, or from duty merely, where the circumstances negative the possibility of an under- standing — as, where one waives the tort and sues as upon contract, or where one refuses to provide for his family, forbids others to do so, and is charged for their supplies as upon an implied promise — is but evidence of the vitality of some of the old fictions.^ But ordinary implied agreements are more than these ; there is always a supposed undertaking, an agreement, though not ex- pressed in words. The person in whose favor the implied promise is supposed to be made acts upon it, and is known by the promisor to act upon it, as though it were actual — as, where one labors for another at his request, unless his sei-vices are donated he expects to receive payment for his work, and has a right to presume that the other party undei'stands that he is to pay him. The fact of the request implies an understanding on the part of him who made it that he would pay what the work was worth, unless he requested it as a donation, in which case there is no implied promise. n. We also naturally class together actions to recover dam- ages which result from the wrongful acts of the defendant, commonly called torts. The names of the old actions which were brought to redress this class of injuries were trespass and trespass on the case. Trespass lay for a wrongful act committed with force and where the injury was direct, and the action was either for trespass to the person by assault and battery, or false impris- onment ; trespass to personal property, called trespass de bonis asportatis, or simply trespass ; or for trespass to land, called trespass quare clausum fregit. When the injury was not the 1 The subject of implied promises assumed under circumstances where they could not have been made is hereafter considered. 9 § 10 OF THE ACTION. [PAET I. direct result of force, but grew out of the wrongful act of de- fendant, the action was trespass on the case, often called case} III. The action for the specific recovery of personal property or instruments in writing cannot be well associated with any other class. The injury complained of is a tort, but the relief distinguishes the replevin from all other actions. And so with — IV. Actions for the recovery of real property, which is like the old action of ejectment, though dififeriug greatly in form. This classification of actions, except in regard to those founded upon contract, is substantially the same as in the common-law practice since certain ancient wz"its, as formedon, writ of right, dower, etc., went out of use. I have not attempted to classify those actions where the issues are submitted to the court, and which were formerly called equitable. The formal bill in chan- cery is no longer used, but the remedy is substantially the same, and suitors are still entitled to the same relief as of old. The terms covering the object of the proceeding, and which deter- mined its character — as, foi'oclosure, specific performance, etc. — still apply to actions for the same object, and the classification, so far as any can be made, is the same as before. § 10. We still may speak of legal and equitable Relief. — We have seen that in the states adopting the New York system, ' It was not always easy to decide whether to bring trespass or case. In Waterman V. Hall, 17 Vt. 128, the evidence showed that the defendants had frightened the plaintiff's mare so that she attempted to leap a fence and was killed. The action was case, and the court held that either case or trespass would lie, and also expressed the opinion that in the famous Squib case, where the act of defendant was held to be a trespass, the action of trespass on the case would also lie. Case was the remedy for waste, as the wrong-doer is in lawful possession ; but if the tenant hold over and after- wards commit waste, either case or trespass would lie. Co. Lit. 57 a, note 380. Assump- sit was never considered as an action for a tort. It was in form trespass on the case, yet, in fact, it was an action upon contract. The technical or descriptive names which have so long been used in regard to these actions are still too convenient to be dis- pensed with. Thus, the word trespass is still used to designate the old class of injuries, and we may with propriety call an action one of trespass although not so designated on paper. Trover is also a term still in common use, but to distinguish it from trespass to personal property it should now be applied only to actions to recover damages for the conversion of personal property when the original possession was rightful ; although formerly trover, as a form of action, would lie where the taking was tortious. 1 Chitty's PL 151, 171. We also necessarily speak of actions for libel, slander, negligence, etc. 10 CH. I.J NATURE AND FORM OF ACTIONS. § 10 except Kentucky, Arkansas, Iowa, and Oregon, the distinctions betAveen actions at law and suits in equity are abolished, either directly or by providing that there shall be but one form of action. Is the distinction, in fact, abolished, and was it neces- sary to expressly retain equity jurisdiction in the states named ? The expression is not a happy one, for it is not easy to see how it is possible to abolish the distinctions between these two classes of actions. One or the other may be abolished. The law-making power may say that suitors shall no longer be entitled to equita- ble relief — that is, that hereafter they shall be allowed to sue only for money or for specific property ; or, on the other hand, that they shall be entitled to equitable relief only — that is, that they may sue for the specific performance of a contract, but not to recover damages for its breach. But it cannot abolish the dis- tinction between the two actions ; ^ and if both these remedies continue to be allowed, the distinction remains. That it does remain is clear. The new codes all provide for trial by jury of substantially the same issues as were so triable before their adoption — that is, issues of fact in actions for the recovery of money or of specific real or personal property — which provision covers all the issues of fact in common-law actions, and proba- bly a few others : as, where it formerly became necessary to resort to equity to recover a money debt. They also provide that every other issue — that is, in addition to issues at law, those which formerly were tried by the chancellor — shall be tried by the court. Thus the chief distinction between actions at law and suits in equity is preserved. The distinctions abolished are simply those which formerly existed between the two classes of actions in the manner of stating the facts, in the style of the writ, and the mode of submitting evidence ; those which arise from the mode of trial and from the nature of the relief which is given are as marked as before. While, in deference to the statute,^ it may not be proper to designate one class as legal actions and the other as equitable actions, yet we are not for- bidden to speak of the one as actions for legal relief and of the 1 Reubens v. Joel, 13 N. T. 488, ' Ante, U 4, 5. 11 § 10 OF THE ACTION. [PART I, other as actions for equitable relief. We should not be driven to unnecessary descriptive phrases — be compelled to abandon a familiar and an appropriate word. Legislation may affect modes of procedure; it will be found more difficult to reform a lan- guage. 12 CH. II. J ELECTION BETWEEN ACTIONS. § 12 CHAPTER II. Of Election between Actions. Sbction 11. The Eight of Election distinguished. 12. The Eight not essentially changed. 13. The Eight to waive the Tort in Conversion of personal Property. 14. Where there is both a Contract and a legal Duty. 15. Election in fraudulent Sales, and for Money obtained by Fraud. 16. Where the Wrong-doer has repudiated the Contract. 17. Election between Actions upon Contract of a different Nature. 18. Election between Actions for Money and for equitable Eelief. 19. Considerations that should control the Election. § 11. The Right distinguished. — In speaking of election in this connection, reference is had to cases where the party has but one cause of action — that is, there is but one wrong, but one right that is infringed, and he can have but one action. But he is not confined to one class of actions. It may be for his interest to seek relief of an equitable nature, or only a money judgment ; and, if the latter, he may in many cases, which we shall hereafter specify, proceed as for a tort, or only for the violation of an agreement. In these and other numerous cases the two reme- dies cannot be pursued together ; they are ordinaiily inconsist- ent with each other — hence the necessity of making the election. § 12. The Right not essentially changed. — Upon principle, it would seem that, in one particular, the right of election has been modified by the Code. In some causes of action arising from torts, the injured party was authorized to declare in as- sumpsit; to do so it was necessary to show a fictitious under- taking or promise, and hence the rule, as applied to those causes, that one may waive the tort and sue as upon contract. If, for example, a defendant had wrongfully taken personal property belonging to the plaintifi", or had wrongfully refused to return 13 § 13 OF THE ACTION. [PART I. that which had been loaned him, the wrong in either case was a tort, and, at common law, the proper action in one case was trespass and in the other trover, though trover would lie in either case, as would the modernized action of replevin. But the plaintiff was also allowed to sue in assumpsit and charge a sale, a promise and its breach, although there was no sale in fact, and no promise either express or, as a fact, implied. There may be — there is, under some circumstances — an implied contract; the phrase does not necessarily state a fiction, for an agreement may be logically inferred from the conduct of the parties — an undertaking which is understood by them, though not expressed in words. ^ It is perfectly consistent with the spirit of the new system to treat legal obligations arising from such an under- standing as contracts, for they are so in fact. In the case, how- ever, above supposed, the imjalied promise was a pure fiction, and yet to allow it was well enough in a system abounding in fictions. It is not, however, in harmony with one from which fictitious averments are supposed to have been excluded. And yet I do not find that the attention of the court, in any of the states that have adopted the new system, has been called to the seeming inconsistency. The old doctrine is still recognized ; the old phraseology, in the old sense, is still used by the courts ; and I shall treat the subject, in this regard, according to the old view.^ § 13. The Right to waive the Tort in Conversion of per- sonal Property. — Suitors frequently avail themselves of the right of election in cases where personal property has been unlawfully seized or converted. It is not disputed that when property has been thus wrongfully appropriated, and has been sold and con- verted into money, the owner may ratify the sale by suinf the > Ante, 2 9 ; post, § 128. 2 Judge Swan, of Ohio, in hia treatise upon Pleadings under the Ohio Code, dis- cards the fiction of a promise in cases like the one supposed in the text, and says : " These artificial inferences of the law, which are not implied or deduced as a truth from the facts, cannot, in code pleading, be substituted for the facts, they being, in respect of pleadings, legal fictions adopted to sustain the diiferent forms of action at common law, and must, with the abrogation of those forms, be discarded from plead- ings under the Code." pp. 48, 49. 14 CH. II. J ELECTION BETWEEN ACTIONS. § 14 wrong-doer for money had and received for his use.^ This right may not be inconsistent with the theory of truthfuhiess in plead- ing ; for, if the plaintiff charges that the defendant, being in pos- session of his property, sold it for a certain sum, which he refuses to pay over, he makes a case of liability as upon contract, and states nothing that is untrue. If he sue for the wrongful taking, charging the conversion, he will recover the value of the prop- erty, without regard to the amount for which it was sold ; while, if he affirms the sale, he will be entitled to the money received for the property, without regard to its value. But suppose the property has not been sold, but still remains in the hands of the wrong-doer. Can the owner, under such circumstances, bring an action as upon contract ? The right to do so is denied in the courts of Massachusetts and Pennsylvania, and under the com- mon-law system of pleading,^ but was affirmed in New York be- fore the adoption of the Code.^ The question has, upon several occasions, been before the courts which are working under the new system, and, where there has been a conversion merely, and no sale, the right to sue as upon contract has been generally asserted.* § 14. Where there is hoth a Contract and a legal Duty. — There are certain relations usually entered into by contract. Where the law imposes a duty that arises rather from the rela- tion than the contract, and where parties have entered into these relations and the duty is disregarded, the one who suffers may sue upon the agreement, or may treat the wrong as a tort, and 1 Jones V. Hoar, 5 Pick. 285, and note ; Gordon v. Bruner, 49 Mo. 570. ' Jones V. Hoar, supra ; WiUet u. Willet, 3 Watts, 277. See, also, Morrison v. Kogers, 2 Scam. 318. ' Putnam v. Wise, 1 Hill, 234, and note ; Berly v. Taylor, 5 Hill, 577, and note ; and other cases cited in note 1, section 154. See, also, Floyd v. Wiley, 1 Mo. 430 ; John- son V. Strader, 8 Mo. 359. ' Smith V. Schulenherg, 34 Wis. 41 ; Roth v. Palmer, 27 Barh. 652 ; Hawk v. Thorn, 54 Barb. 164 ; Koberts v. Evans, 48 Cal. 380 ; Gordon v. Bruner, supra. And see Norden v. Jones, 33 Wis. 600, as applied to trespass upon land, where the general question is discussed. The contrary view is taken in Iowa, and the right to sue as upon contract is confined to cases where the property tortuously converted has been sold. Moses i;. Arnold, 48 Iowa, 187. 15 § 14 OF THE ACTION. fPAKT I. bring an action analogous to that of trespass on the case.' This duty arises on the part of carriers, innkeepers, attorneys and physicians, farriers, and other skilled mechanics, etc. Thus, if a raih-oad conductor wrongfully ejects a passenger, an action for the tort will lie, although the person ejected is riding by virtue of a contract.^ And against an attorney assumpsit will lie, or case for a breach of his duty.* And the owners of a ship are responsible to the owners of goods shipped on board their vessel for any negligence of themselves or their servants whereby the goods are damaged, notwithstanding a charter-party. The fact of a contract does not divest them of liability incurred for the non-performance of duties belonging to them in the course of the ship's employment.* But if there be no legal duty except as arising from the contract, there can be no election — there is no tort, and the party must rely upon the agreement alone. Thus, if one agree to take the charge and superintendence of a farm for a year, and take charge and care of the stock, etc., there is no legal duty outside the contract ; and an action, as on the case for tort, will not lie for his negligence.^ And if one agree to board a horse for another and keep him in a separate stall, .and negligently put him in a stall with other horses, and he is kicked and injured in consequence, the negligence cannot be charged as a tort, for there is no duty outside the contract.^ The general 1 2 Add. on Torts, ch. 22, ? 1. ' Ernigh v. Pittsburg, Fort Wayne & Chicago R. Co., 4 Biss. 114. In this case the court holds the doctrine to be that, where there is a contract from which a common- law duty arises — as, in the services of a lawyer, physician, or in case of a common carrier, agent, or wharfinger — the contract may be laid as matter of inducement, and the pleader may rely upon tort for breach of duty. 3 Church V. Mumford, 11 Johns. 479. ' Leslie v. "Wilson, 3 Brod. & B. 171. 6 Masters v. Stratton, 7 Hill, 101. " Legge V. Tucker, 1 H. & N. 500. The opinion says, while holding that the action could only be upon contract : " But, in case of carriers, the custom of the jealm imposes on them a duty to carry safely, and a breach of that duty is a breach of the law, for which an action lies, founded on the common law, and which does not require a contract to support it. So in case of a farrier who shod a horse negligently ; he might be sued in tort." And another judge says : " When the foundation of the action is a contract, In whatever way the declaration is framed, it is an action of ass«»i/)ai<; but when there is a Axxty ultra the contract, the plaintiff may declare in case." 16 CH. II.] ELECTION BETWEEN ACTIONS. § 15 doctrine is thus stated, in substance, in Saunders : ^ " When the action is maintainable for the tort simply, without reference to any contract made between the parties, no objection can be raised on the ground that the plaintiff should have declared upon the contract; as, for instance, in actions against common carriers, founded on the custom of the realm, and the like. But where the action is not maintainable without referring to a contract between the parties, and laying a previous ground for it by show- ing such contract, then the plaintiff must proceed upon the con- tract, and a special action on the case will not lie." * § 15. Election in fraudulent Sales, and for Money obtained by Fraud. — Where property is sold and no credit has been stipu- lated, none is to be presumed, and unless payment is made on demand the title to the property remains in the vendor ; and if the property has been delivered, he may recover possession, for the sale was incomplete without payment ; ^ and so if credit was to be given upon approved security and the security is not fur- nished;* or, if one sells goods for the purchaser's note, or for the note of a third person, which he is fraudulently induced to take, the property is still in the vendor. But in all these cases the vendor may, at his election, treat the transaction as a sale, and, instead of seeking to recover the goods, may sue for the consideration ; but he cannot do both, for the claims are incon- sistent; and if he brings an action for the price, he affirms the sale, and vice versa.^ And so, where one has obtained money by deceit or fraudulent practices, the loser may bring his action for the tort, analogous to the old action on the case, or may sue ^ Cabell V. Vaughn, 1 Saund., 5th ed., 291, note, as given in Masters v. Stratton. ' In Kentucky this right of election is recognized under the Code, and, as indicating such election, Crenshaw, J., in Kountz v. Brown, 16 B. Mon. 577, says: "In a peti- tion which goes for a forcible injury, it should state such facts as would be equivalent to an action of trespass at common law. If the trespass be waived, and the petition go for negligence or want of skill, it should state facts which are equivalent to an action in case according to common-law principles." 3 Palmer v. Hand, 13 Johns. 434 ; Morris v. Rexford, 18 N. T. 552. * Haggerty v. Palmer, 6 Johns. Ch. 437. * Morris v. Rexford, supra; Benedict v. National Bank, 4 Daly, 171. If he com- promises the fraud, or seeks to enforce the contract, though unsuccessfully, he haa waived the tort. Adams v. Sage, 28 N. Y. 103 ; Wilmot v. Richardson, 2 Keyes, 519. 17 a § 17 OF THE ACTION. fPAET I. upon an implied contract for money had and received ;' or where, upon a false representation as to the purchaser's solvency, a vendor has been fraudulently induced to give him a credit, the latter, on discovery of the fraud, may repudiate the agreement as to the credit, and at once sue for the value of the goods as upon contract, or may sue in tort for the fraud.''' § 16. Where the Wrong-doer has repudiated the Contract. — ■ It sometimes happens that one who has rightfully obtained pos- session of property by contract so conducts himself with regard to it that he will be held, at the option of the owner, to have repudiated the contract, and to have been a trespasser from the beginning. Thus, wliere there has been an intentional destruc- tion of, or injury to, a horse by the hirer, the owner is at liberty to treat him as a trespasser ; ^ and thus an infant may be made to respond to the injury.* So, if a horse be driven to a different place instead of to the one to which the hirer had agreed to drive him, it is a conversion ; and even if the hirer cannot be com- pelled to respond to the contract if made on Sunday, when such transactions are forbidden by law, he may be held for the con- version.' § 17. Election between Actions upon Contract of a differ- ent Nature. — The suitor may have more than one remedy when the wrong is simply the breach of a contract. Thus, if a servant be wrongfully discharged before the expiration of his term of service, he may at once sue for the breach of the agreement, or 1 Byxbie v. Wood, 24 N. Y. 607 ; Union Bank v. Mott, 27 N. Y. 633 ; Byard v. Holmes, 33 N. J. L. 119. ^ Wiggand v. Sichel, 33 How. Pr. 174 ; Eoth v. Palmer, 27 Barb. 652, the court, per Hogeboom, J., citing, upon the general right of election between contract and tort, Putnam v. Wise, 1 Hill, 234, and note ; Oiimmings v. Force, 3 Hill, 283, and note ; Berly v. Taylor, S Hill, 577 ; Brownell v. Flaghler, 5 Hill, 282 ; Baker v. Bobbins, 2 Denio, 136 ; Osborn v. Bell, 5 Denio, 370 ; Camp v. Pulver, 5 Barb. 91 : Hinds u. Tweddle, 7 How. Pr. 278 ; Butts v. Collins, 13 Wend. 154. Also, Lightly v. Clouston, 1 Taun. 113 ; Hill v. Perrott, 3 Taun. 274 ; Young v. Marshall, 8 Bing. 43. 3 Campbell v. Stokes, 2 Wend. 137 ; Co. Lit. 57 a. • Campbell v. Stokes, supra ; Homer v. Thwing, 3 Pick. 492 ; otherwise if the wrong consist only in immoderately driving the animal. Jennings v. Rundall, 8 Term Rep. 335. s Hall V. Corcoran, 107 Mass. 251 ; Frost v. Plumb, 40 Conn. 111. 18 CH. II. J ELECTION BETWEEN ACTIONS. § 18 may wait until the term has expired and sue for his wages at the stipulated rate,^ but he cannot do both. If he sue for damages, it is a bar to subsequent action for wages.^ And if a contractor be prevented from completing his job by the unwarranted acts of the other party, he may elect to sue for damages for a breach of the contrtict, or he may sue for the value of the work already performed.' At common law, where lands had been demised by covenant and the lessee had actually occupied the premises under the lease, the lessor was not compelled to base his action upon the covenants in the instrument, but might sue in debt for the sum due, and offer the deed in evidence to show the relation of landlord and tenant, and fix the amount of the rent.* After- wards the action of assumpsit for use and occupation was allowed by statute ^ when the agreement was not made by deed, which statute was incorporated in the New York Revised Statutes, and, by amendment to conform to the new system, now reads as fol- lows : "A landlord may recover a reasonable satisftiction for use and occupation, by any person, under any agreement not made by deed ; or, if an agreement not by deed, by which a certain rent is reserved, appears in evidence, plaintiif may use it as evi- dence of the amount of damages." ^ This is adopted substan- tially in Missouri." Actual occupation during the term* is not necessary if the tenant took possession and occupied for a part of the term, and might have done so for the whole. ^ § 18. Other Instances of Election. — One who suffers a ' 2 Pars, on Con. 34 ; Rogers v. Parham, 8 Ga. 190 ; Booge v. Pacific R. Co., 33 Mo. 212. In a suit for wages under such circumstances, the defendant may reduce the amount to be recovered by showing that the person discharged had, during the period covered by the contract, been engaged in other lucrative business. Costigan v. Mo- hawk & Hudson R. Co., 2 Denio, 609; Hendrickson v. Anderson, 6 Jones L. 246; Pars, on Con. 34, note d. ''■ Booge V. Pacific R. Co., supra. ' McCullougb V. Baker, 47 Mo. 401; Fitzgerald v. Hayward, 50 Mo. 516; Merrill V. Ithaca & Oswego R. Co., IS Wend. 586; Clark v. Mayor, etc., 4 Comst. 338; Ohamberlin v. Scott, 33 Vt. 80. * 2 Chitty's PI. 430, note u. s 11 Geo." II., ch. 19 ; Taylor's L. & T., 1 635, etc. ; and Garvey «. Dobyns, 8 Mo. 213. « 1 Rev. Stat. 748, g 26. T 2 V/ag. Stat. 880, gj 16, 17. 8 Hall V. Western Transp. Co., 34 N. Y. 284. 19 § 19 OF THE ACTION. [PAET I. wrong arising from the breach of a contract may have a choice between remedies of a legal and of an equitable nature. Thus, if he would affirm the agreement, he may in a proper case have an action for damages for its breach, or to recover a specific sum due upon it, or he may prosecute an action for its specific per- formance. Under peculiar circumstances, only one of these ac- tions will lie, but ordinarily either may be pursued. So, if he would rescind the obligation, he may recover back any moneys that may have been paid upon it, or may have an action of an equi- table nature for its rescission. So, when personal property has been wrongfully converted and the true owner does not choose to waive the tort, he may, if it is within reach, seize the prop- erty by an action of replevin, or may sue for damages only. § 19. Considerations that should control the Election. — Mr. Chitty', in treating of the election of actions, gives nine consid- erations which should control the judgment of the plaintiff in the choice of remedies.^ Most of them pertain to the form of actions merely, and are without force under our system ; but there are reasons, some of which he suggests, that are important to be considered : 1 . If the defendant was an infant when the cause of action arose, it may be unsafe to waive a tort and sue as upon contract, lest he defend upon the ground of infancy ; and so, if an infant should so use or misuse property he may have hired, or. of which he may otherwise have become a bailee, as to author- ize the owner to treat his conduct as a repudiation of the con- tract, and enable him to hold the infant bailee as a trespasser, or as guilty of a conversion of the property, he might recover, notwithstanding the infancy. 2. The statute of limitations may have run against the remedy for the wrong, if treated as tort, where a contract may still be enforced. 3. One may desire to unite the claim in one complaint or petition with another cause of action, and, if capable of being presented in the two aspects, he may, in order to effect the union, make it sound in contract or in tort, according to the character of the other cause. 4. A defendant who is sued upon contract may have suffered a tortious injury at the plaintiff's hands. If he is allowed to waive the 1 Chitty'3 PI. 207. 20 CH. II.] ELECTION BETWEEN ACTIONS. § 19 tort and hold him as upon contract, lie may present his demand by way of set-off.^ 5. If the defendant has wrongfully sold the plaintiff's property for more than its value, the latter would be interested in holding him for the money as received for his use, and to do so he must waive the tort. If, however, it was sold for less than its value, his interest would lead him to ignore the terms of the sale and proceed for the conversion, although, in those states where the true owner is authorized to treat a tortious taking or holding as a sale, he would, doubtless, be able to re- cover the true value, as for goods sold to the defendant, although the Intter may have parted with them for a less price. 6. At common law it is necessary in actions upon contract to join as defendants every surviving, obligor or promisor, while in actions of tort each tort-feasor is severally liable. In cases where a tort may be waived , it may not always be convenient to ascertain all the wrong-doers, so as to charge them as upon a promise ; and, in thus suing a part, the plaintiff risks tlie delay that may arise from an answer showing a defect of parties. This consideration, how- ever, will have no weight in those jurisdictions that authorize suits against any one or more of those who may be jointly liable. 7. In some of the states, imprisonment for debt is allowed upon judgments in actions of tort, while denied in those sounding in contract. If the creditor, in those states, desires satisfaction out of the body, and if the form is allowed to control the fact, he will make his election with reference to that end. 1 Norden v. Jones, 33 Wis. 600. 21 § 20 or THE ACTIOK. [PABT I. CHAPTER III. Of Parties to Actions. 1. Parlies Plaintiff in Actions founded on Torts. Section 20. Scope and Order of the general Inquiry. 21. The general Rule. 22. Plaintiffs in Trespass upon Land. 23. Plaintiffs in Injuries to personal Property where the Owner is not in Possession. 24. As to Joinder of Plaintiffs. 25. Continued — In real and mixed Actions. 26. Continued — In personal Injuries. 27. Continued — In Injuries to married Wompn. 28. Injuries to Servants — Seduction — Riglits of Parent in Injuries to Minors. 29. The Minor may also sue. 30. Parties as authorized by Statute — 1. In Seduction. 81. Continued — 2. When the Injury causes Death — Lord Campbell's Act. 32. Continued — 3. Other similar Provisions. 33. Continued — 4. In Waste. 34. Continued — 5. Joinder of Husband and Wife. 35. Continued — 6. In Injuries to separate Estate of married Women. 36. Continued — 7. In Injuries to same held under Married Women's Acts. 37. The statutory and the trust Estate further considered. 38. As to Assignees of Eights of Action arising from Torts. 39. What Rights of Action so arising survive under the Statute of 3 Edward m. 40. Statutes in the several Code States — New York, Missouri, Arkansas. 41. Same Subject — -Statutes of Ohio, Kansas, Nebraska, Indiana, and Iowa. 42. Same Subject — Statutes of Wisconsin, Kentucky, Oregon, and Minne- sota. 43. Construction of these Statutes. 44. When does a personal Claim become a Debt. § 20. The Scope and Order of the general Inquiry. — Tn considering who should be the plaintiff's and who should be made defendants in civil actions, I shall not confine myself to the provisions upon the subject found in the Code, but, in as brief a manner as is consistent with the importance of the subject, treat 22 CH. Ill,] PASTIES TO ACTIONS. § 22 of the necessary and proper parties in the different classes of ac- tions, noting the changes and their effect made by the new codes of procedure, and by other statutes, in the so-called code states ; and, first, I will speak of parties plaintiff in actions ex delicto; second, of parties plaintiff in actions ex contractu; third, of parties plaintiff in actions for equitable relief; fouiih, of par- ties defendant in actions ex delicto; fifth, of parties defendant in actions ex contractu; and, sixth, of parties defendant in actions for equitable relief. In the course of the inquiry I will endeavor to give the scope and effect of certain provisions of the Code, in re- gard to parties, which are taken from the equity practice, as ap- plied to actions for the recovery of money or of specific property. § 21. The general Rule. — In general, in actions founded upon tort, the person who lias suffered the injury must bring the suit, for he is the party in interest. This was the rule at com- mon law; it is expressly recognized by the Code, and will suffice in most cases where one would bring an action for the redress of a wi-ong arising from a tort. Yet many questions have arisen, growing out of tlie nature of the injury, the relations held to the property affected, or held by or to the persons who have suf- fered, which modify the application of the rule, and which should be considered. § 22. Plaintiffs in Trespass upon Land. — Trespass upon land is primarily an injury to the possession ; and if the action be for the direct wrong, the present injury, the person in posses- sion must bring the suit, unless he hold for another as servant or agent, in which case the principal must be the plaintiff.^ If the one in possession be a tenant or the holder of a particular estate, and the injury be of a permanent character, or such as to affect the inheritance or the estate of the immediate reversioner or re- mainder-man, suit may also be brought by such owner of tlie next estate.^ The former, in common-law pleadings, was called an action of trespass, the latter an action on the case ; and though now the actions are not named, the same facts are pleaded and 1 1 Chitty's PI. 62. » Ibid. 63. 23 § 24 OF THE ACTION. [PAET I. the same rules hold in regard to the parties in interest. To illustrate : if a trespasser should wrongfully enter upon land held under a lease, where the tenant had no right to, or interest in, the growing trees, and should destroy a growing crop and cut down such trees, the tenant would have no interest in, and should not be a party in an action for, the destruction of the trees, nor should the landlord be a party in an action for destroying the crop. § 23. Plaintiffs in Injuries to personal Property where the Owner is not in Possession, — An action for an injury to, or for the conversion of, personal jDroperty naay be brought by the gen- eral owner, although in the actual possession of another, provided he have the right to immediate possession ; and, where he has not such right — as, if the property be injured while in the hands of a bailee for an unexpired term — he may, if the injury aflect his re- versionary interest, recover to the extent of the injury to such interest. The one having the possessory title has also his right of action, and a recovery by one for his special injury is no bar to a suit by the other.' The party in possession, who is answer- able to the general owner, may sue for the full value, but if either he or the general owner recover such value, the other will have no right of action.* The action for the possession of per- sonal property will necessarily be in the name of the person en- titled to the immediate possession. § 24. As to Joinder of Plaintiffs. — The obvious rule is "that where two or more are jointly entitled, or have a joint legal interest in the property affected, they must, in general, join in the action."^ This is the statutory rule, as will hereafter appear in considering more especially the rules derived from the equity practice.* Thus, partners should join in seeking redress for an injury to the partnership property, and in bu3dng real estate for partnership purposes they are also allowed to join in an action • 1 Chitty's PI. 62. » Bac. Abr., title "Trespass," C; Adams v. Childers, 10 Mo. 778. ' 1 Chitty's PI. 64, and so, also, 1 Saunders on PI. 744, 745. * Post, (l 61, 62. 24 CH. in.] PARTIES TO ACTIONS. § 24 for a deception practiced on them in its purchase.^ They may, also, join in a suit for a libel published concerning them in their joint business,'' and for falsely and fraudulently recommending an insolvent person as worthy of credit.^ And tenants in com- mon of the realty, although their estates are several, must join in personal actions for injuries to the estate,* as several actions for the same trespass, or other injury not affecting the title, against the same person by those having a common interest in the property injured will not be permitted, and because the damages survive to all." Another reason for distinguishing, in this re- gard, personal from real actions doubtless is that the possession is joint, the possession of one being the possession of all, and all are equally affected by the injury in proportion to their inter- est ; but the title is several, springing, perhaps, from different sources, and an injury to, or claim affecting, the title of one tenant in common may have nothing to do with that of another. Notwithstanding, in general, tenants in common must join in personal actions, yet if from its nature the injury does not, or may not, affect all the owners, they wei-e required at common law to sue severally. Thus, where a vendor has made false and fraudulent representations in regard to the estate, to induce it? purchase, all the purchasers, if there are more than one, are noi necessarily affected by the deceit, for some may have known the facts.* But under the Code there should, upon principle, be no obligation, under such circumstances, to bring separate actions. At common law, in a joint action, if one of the plaintiffs failed to show his right of action, there could be no recovery by the others. Hence the declaration should show a joint right, or one that, from its nature, exists in favor of all the plaintiffs. But under the new system, the equity rule which permits " all persons having an interest in the subject of the action and the relief" to be joined as plaintiffs is adopted in terms,' and judg- 1 Medbury v. Watson, 6 Mete. 246. ' 1 Chitty's PI. 64. 8 Patton V. Gurney, 17 Mass. 182. * Low V. Mumford, 14 Johns. 42<; ; Greenly v. Hall, 3 Harr. 9 ; Depuy v. Strong, 37 N. Y. 372 ; Lane v. Dobyns, 11 Mo. 103. 5 1 Chitty's PI. 65; Bac Abr., title "Joint Tenant," k. « Baker •«. Jewell, 6 Mass. 460. ' The operation of this rule is considered hereafter, JJ 73-76, and see next section. 25 § 25 OF THE ACTION. [PAET I. meiit may be given in favor of one or more of the plaintiffs and against the others. In a case like the one just cited, if two or more tenants in common, who derive title from the same person and by the same instrument, seek to repudiate the purchase or recover damages upon the ground of fraudulent representations wliicli induced it, and so state the facts that they apply to each purchaser, under this provision of the statute it would seem that they should be permitted to join in the action ; and if it should appear that one or more of ttie plaintiffs knew the facts and did not rely upon the representations, the judgment might be against them, although in favor of the others. But this question has not been authoritatively decided. § 25 . Continued — Real and mixed Actions. — At common law, in real and mixed actions, coparceners^ and joint tenants were required to join,^ but it was generally held that tenants in common should sever, ^ each suing for his individual hiterest, his title to which was several. It was, however, held that in eject- mrnt, while a joint demise to the nominal plaintiff by several tenants in common was considered bad, a declaration showing ticvcnil demises of the same date was good;* thus, by a little chiUTic in the form of the declaration, tenants in common were permitted to recover jointly. Justice Kent treated this as substan- tially reversing the old rule, and at an early day permitted joint demises to the fictitious plaintiff.' In those states where the old 1 In P.ush V. Bradley, 4 Day, 303, where a part of the heirs had brought ejectment, anrl nliioclion was made because the others were not Joined, Eeeve, J., said: "i is oiijcction cannot prevail, since a practice has obtained in this state, where tlioie are spveral \vh Gen. Stat. 1873, p. 142. » Ibid. 375. M Wag. Stat. 519. 34 CH. HI. J PARTIES TO ACTIONS. § 33 employees, when the negligence was that of a fellow-servant. • If, however, the injury results from the defective construction of the railroad, or the locomotive or cars, the steamboat or machinery, or the stage-coach, no one but passengers are included in the terms of the act ; and in either case the same persons should bring the suit that are named in the last section as en- titled in Missouri to sue under the Lord Campbell Act. In Iowa ^ the civil remedy is not merged in a public offense, but may, in all cases, be enforced; and if a wrongful act produces death, the damages, shall be personal property ; but if the deceased leave a husband, wife, child, or parent, they shall not be liable for his debts. By another section^ the father, or, in case of his death, imprisonment, or desertion, the mother, is authorized to prosecute for the expenses and actual loss of service arising from the injury or death of a minor child. In Nevada * and in In- diana^ the father, or, in case of his death or desertion, the mother, may sue for the injury or death of a child, and a guardian for that of a ward.* § 33. Continued — 4. In Waste. — At common law the remedy for waste was imperfect, in that a suit could only be brought in the name of the immediate reversioner or remainder- man.^ It would not lie in favor of a remainder-man if between him and the tenant a particular estate intervened, and doubtless for the reason that waste could be made to work a forfeiture, in which a remote reversioner or remainder-man could have no in- terest. But still the value of his expectant estate could be greatly impaired, and his only remedy was by injunction. The 1 Shultz 17. Pacific R. Co., 36 Mo. 13 (overruled in Proctor v. Hannibal & St. Joseph E. Co., 64 Mo. 112). 2 Code 1873, i 2526. » Ibid., § 2556. * Comp. Laws 1873, ? 1074. s Code Civ. Proc, § 27. » It is held in Indiana (Ohio & Mississippi E. Co. v. Tindall, 13 Ind. 366) that section 27 of the Code, and section 784, referred to in the last section, are consistent and both valid — the former referring to infants who are injured, and the latter to adults. ' 1 Chitty's PI. 63; Co. Lit. 53 a; 25 N. Y. 256. 35 § 34 OF THE ACTION. [PART I. Eevised Statutes of New York, some twenty years before the adoption of the Code of Procedure, provided, however, that " a person seized of an estate in remainder or reversion may maintain an action for any injury done to the inheritance, not- withstanding any intervening estate for life or years." ^ This provision has been adopted, in terms in Indiana,^ in Iowa,' in Kansas,* in California,^ in Oregon,* and in substance in Ken- tucky,'' in Missouri,* and in Wisconsin.' The statutes of Cali- fornia '" and of Oregon " make the following additional provision : " If a guardian, tenant for life or years, joint tenant, or tenant in common of real property commit waste thereon, any person aggrieved by the waste may bring an action," etc. ; and the word " commit " in this connection is held to include permissive waste. ^^ The heir presumptive could not at common law bring an action for waste committed during the life of the ancestor, nor the grantee of a reversion for waste committed before the grant ; ^' for the rule was that no one could maintain the action unless he had an estate of inheritance at the time when the waste was committed.^* In connection with the statutory provision re- ferred to as adopted in New York and other states, the heir is expressly authorized to bring the action for waste during the life of the ancestor, in the states of New York,^^ Kentucky, Mis- souri, Wisconsin, and Iowa. § 34. Continued — 5. Joinder of Husband and Wife. — « 1 1 Stat, at Large N. T. 701, § 8 ' 2 Stat. 1860, J 361. 8 Code 1873, § 3337. • Gen. Stat. 1868, p. 542, § 23. 6 Civil Code 1874, ? 826. « Gen. Laws 1872, p. 589, § 87. ' Gen. Stat. 1873, p. 607. " Wag. Stat. 884, § 43. 9 Stat. 1871, p. 1695. '» Code Civ. Proc. 1874, ? 732. " Gen. Laws 1872, p. 180, J 334. '2 Parrott v. Barney, Deady, 405. '3 2 Saund. 252, note 7. " Ibid. »5 2 Stat, at Large N. T. 345, 36 CH. III.] PARTIES TO ACTIONS. § 34 The practice codes of Ohio,^ Indiana,'' Kentucky,^ Wisconsin,* California,* Oregon,^ Nevada,' North Carolina,* South Carolina,* Colorado,^" and Florida " provide that when a married woman is a party, her husband must be joined with her ; except where the action concerns her separate property, she may sue alone ; and when it is between herself and husband, she may sue or be sued alone. In Ohio, when she sues or is sued alone, it is by next friend ; in New York, Indiana, Oregon, and South Carolina the next friend is expressly repudiated ; and in California, Ken- tucky, Wisconsin, and Nevada nothing is said in the Code upon the subject. In California the wife may also sue or be sued alone, when living separate from her husband. In lowa,^'' Min- nesota,^* Kansas," Nebraska," and New York^^ a married woman is required to sue, and is subject to be sued, as though she were unmarried ; while in Missouri," in all cases where the wife is a party, the husband shall be joined, unless the suit is between the two, in which case they may both appear by attorney. In Ar- kansas,^* in addition to her right to sue for, and on account of, her separate estate, she may also sue alone for any injury to her character, person, or property, and is liable to be thus sued in respect to any trade or business carried on by her under the statute. The Married Woman's Acts of most of the states, in addition to the above provisions of the codes of practice, allow a 1 Code Proc, ? 28. 2 Code Civ. Proc, i 8. 8 Bullitt's Code, ^ 34. " Kev. Stat. 1871, ch. 122, ? 15 5 Code Civ. Proc. 1874, I 370. 6 Code Civ. Proc, § 30. ' Comp. Laws 1873, ? 1070. « Code Civ. Proc, ^ 56. s Code Civ. Proc, I 137. i» Code Civ. Proc, I 6. " Code Civ. Proc, I 65. 12 Code 1873, ^ 2562. 13 Stat. 1873, p. 486. 1* Stat. 1873, ch. 80, | 29. 15 Code Civ. Proc, § 31. 16 Code Civ. Proc. 1876, g 450. " Wag. Stat. 1001, ? 8. 18 Gantt's Dig. 1874, ^ 4487. 37 § 35 OF THE ACTION. [pART I. married woman to sue and be sued as if sole, in respect to her sepai-ate property, and to bring suit in her own name for injuries to her person or character. § 35. Continued — 6. Injuries to separate Estate of mar- ried Women. — We have just seen that, except in Missouri, a married woman may sue alone concerning her separate property. In bringiiag an action to protect the separate property of the wife from an injury — as, from a trespass, or for a conversion of her per- sonal property — should it, in all cases, be brought in the name of the wife alone? In answering this question we must consider the nature of her title. By the law of England, which, in this regard, has been followed in all the states where the common law has been adopted, and which still jDrevails unless modified by statute, the use of the wife's realty was given to the husband during marriage, and, upon issue born alive, during his life ; and the absolute title to her personal property, except paraphernalia, was vested in him, together with the right to reduce to posses- sion her choses in action. These harsh features of the common law were, however, greatly modified by the doctrines of the courts of equity, and especially by the encouragement given to settle property upon the wife to her separate use. Hence grew up a class of equitable titles in married women, by which, through the intervention of trustees, she was enabled to hold and enjoy property, real and personal, as though she were unmarried. The property was usually given to trustees for her separate use, and the statute of uses was not permitted to execute the use ; and if it had been conveyed directly to her, so that she held the legal as well as the equitable estate, the marriage was not permitted to divest her of the use, but the husband, who by virtue of the mar- riage took a legal estate in the property, was permitted to hold it only as trustee. This equitable estate in the wife is particu- larized in this connection to distinguish it from the separate estate of the wife created by the Married Woman's Acts, so called, of which I shall presently speak. In answer, then, to the ques- tion, and in reference to that which is thus held for the use of the wife, actions for the redress of injuries which affect the title or the inheritance should, upon principle, be brought by the trustee, 38 CH. III. J PARTIES TO ACTIONS. § 36 the holder of the legal title. It is his duty to protect the prop- erty and protect her in its enjoyment, although, if he refuse to do so, she, like other beneficiaries, may have an action to enforce the trust. In a case in IVIissouri^ where a slave was held by a trustee for the separate use of the wife, upon his tortious conver- sion she was not permitted to sue in her own name. The court held that it was the duty of the trustee to protect the legal own- ership from jeopardy, and that the wife was only entitled to her action where the trustee refused to do his duty, or where there were obstacles in the way of a legal remedy.^ The general rule in regard to parties when property is held by trustees of an express trust will apply to trusts of this nature. In California an application for a mandamus was allowed on the relation of the trustee who held lands in trust for the payment of debts. The court says : " It is the duty of a trustee to look after, guard, and protect the trust estate against all enemies. * * * That the trustee would be bound to bring an action to prevent waste or trespass upon the land in question, or ejectment to recover its possession in case of ouster, does not admit of doubt. On the contrary, should he refuse to do so, his cestui que trust may bring an action to compel him to do so."' § 36. Continued — 7. Injuries to her separate Estate held under the Married Woman's Acts. — The authority given to married women to bring suit in their own name in respect to their separate property must have had reference chiefly to prop- erty secured to her separate use by the Married Woman's Acts, so called, as will more clearly appear by a reference to some of those acts. This legislation, like so many innovations in our jurisprudence, commenced in New York, and from 1848 to 1862 sundry enactments were from time to time made which almost wholly overthrew in that state the marital relations of the hus- band to the wife's property, as recognized by the common law. By the first of this series of acts it is provided that the real and 1 Richardson v. Means, 22 Mo. 495, Leonard, J., delivering the opinion. 2 This case arose when the Missouri Code authorized a married woman to sue alone in regard to her separate property. s Tyler v. Houghton, 25 Cal. 29. 39 § 36 OF THE ACTION. [PART I. personal property of the wife owned at her marriage, or which she may afterwards acquire, with the rents, issues, and profits thereof, are divested of any control of the husband or liability for his debts, and are held as her sole and separate property, as though she were single. By the second act trustees are author- ized to convey to her property held for her use ; by the third the antenuptial debts of the wife are made collectible only out of her separate estate, or out of the property of the husband to the extent of that held by him by antenuptial contract, or other- wise ; the fourth pertains to insurance for her benefit ; the fifth, reenacting, in part, the first, adds to her separate property that which she acquires by her trade, business, or services — to be col- lected and invested in her own name — authorizes her to sell any personal property, and carry on any business or perform any services on her separate account, and to sell her real estate and bind her separate property by the covenants of her deed , allows her to sue and be sued as if sole, in relation to her separate property, and to bring suit in her own name for injuries to her person or character, and provides that no bargain of hers shall bind her husband ; and the sixth exempts the husband's property from liability for costs in actions brought or defended by the wife, authorizes their recovery out of her separate property, and requires the written consent of the wife to the apprenticeship of her child, and to the creation over it of a testamentary guardian.* So far as to enact that the real and personal property of the wife owned at the marriage, or subsequently acquired by her, shall be her sole, and separate property, with authority to control it as though unmarried, this New York legislation has been followed in Indiana,^ in Wisconsin,^ in California,* in Miiinesota,^ in Ar- kansas,^ in South Carolina,' and, as to personal proiDerty, in Missouri.^ We have nothing to do, in this connection, with any 1 i Stat, at Large N. Y. 513-517. 2 1 Stat. 1860, p. 374. 8 Rev. Stat. 1871, p. 1195. The act was first adopted in 1850. « Civ. Code 1874, \l 162-164, following the Constitution, art. 11, J 14. 6 Stat, at Large 1873, p. 702. e Const., art. 12, ? G, and Dig. 1874, H 4193-4203. ' Eev. Stat. 1873, p. 482. 8 Afts 1875, p. 61. 40 CH. in.] PARTIES TO ACTIONS. § 37 of the provisions of these acts except those that create a separate property in the wife, nor with the acts of other states which merely exempt her property from execution to satisfy the hus- band's debts. And the point to be noted is that these acts create a complete legal estate in the wife,i and divest it of the husband's marital interest. Hence it is not a trust estate like the old equitable estate of the wife, where the property was conveyed to her separate use. Such an estate may be created by the inter- vention of trustees, as before, but it is wholly unnecessary in those states. However acquired, the property of the wife is made her sole and separate property, and she has the same legal and equitable interest in it as though unmarried. She, then, as being the legal owner, and not simply a beneficiary, is author- ized to sue for any injury to the property, and is not confined to actions of an equitable nature to enforce the trust ; and hence may bring her action in her own name in respect to such prop- erty for a recovery of money, ^ for deceit,' for a trespass, for a conversion of personal property,* or for the possession of the estate itself, both real and personal.^ § 37. The statutory and trust Estate further considered. — We thus see that these two kinds of estates, both being for the separate use of married women, so differ in their nature that, in actions concerning them, or in respect to them, dif- ferent rules in regard to parties naturally follow. The one created by statute is a legal estate, held by the wife precisely as 1 Hauptman v. Catlin, 20 N. Y. 247. 2 Palmer v. Davis, 28 N. Y. 242. ' Newberry v. Garland, 31 Barb. 121. * Ackley v. Tarbox, 31 N. Y. 564. * These decisions were made in New York, under the provision as it existed before the revision of 1876, and when the language of the Code upon this subject was the same as in Ohio and other states. The Indiana statute, while declaring that the lands of the wife and the profits therefrom shall be her separate property, provides that all suits relative to such lands shall be prosecuted by or against the husband and wife jointly, or, if they be separated, in the name of the wife alone. 1 Stat. 1860, p. 374. The Code of Procedure, after the general provision in regard to parties, con- tains the following: "Husband and wife may join in all causes of action arising from injuries to the person or character of cither and both of them, or from injuries to the property of either or both of them, or arising out of any contract in favor of either or both of them." | 794. 41 § 37 OF THE ACTION. [PAET I. though the law had never known a change in her interest by virtue of her marriage. It, of itself, is no more a trust estate than that of the husband in his own property. Either the hus- band or the wife may, of course, hold equitable interests in prop- erty, either separately or jointly, if a trust is created in their favor, but the separate estate of the wife created by the Married Woman's Act is not a separate use merely — there is no trust; the wife is the absolute owner. On the other hand, so firmly established were the husband's marital rights that, in the absence of legislation, no other way was found to control them in the in- terest of justice than through the familiar instrumentality of trusts. The chancellor had no power, if the title was in the wife, although to her separate use, to deprive the husband of his possession of the estate during the life of the -ndfe, for that was given him by the common law ; but in such case he could enforce the provisions of the instrument, and say that the husband should only hold as trustee. The wife's legal estate then is gone for a time, but she holds an equity of which the husband cannot de- prive her. It, then, plainly appears that in the former case the requirement that she sue in her own name is a reasonable one. She has a separate estate, rather than a separate use, and should protect it from injury. The action should not be in the name of the husband unless he is required to join with her for her, and not his, protection, for he has no interest ; nor can it be in the name of a trustee, for there is none. The New York Code, therefore, which was adopted about the time of the passage of the first of the Married Woman's Acts, properly authorized her to sue alone concerning her separate property, and this authority has been given her in all the code states except Missouri and, with some restrictions, in Indiana. On the other hand, when the wife has but the separate use, a mere equity, the title being in another, the permission given by the statute to sue in her own name is but a barren one. She can, she must, as under the equity system,' bring her action analogous to filing her bill in chancery to enforce her equitable rights, but ordinary actions to protect the property from injury will be in the name of the trustee ; he is 1 Story's Eq. PI., § 63. 42 CH. III.] PARTIES TO ACTIONS. § 38 a " trustee of an express trust," and as such should protect the property of his beneliciary. § 38. As to Assignees of Rights of Action arising from Torts. — The section of the statute requiring tlie action to be brought in tlie name of the real party in interest closes with this proviso : ' ' But this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract ; " ^ which can only be understood as guarding against the inference that the section authorizes the assignment of rights of action arising from torts, which were not before assignable. The matter is left as before,^ and the proviso seems to be without legal effect. No chose in action, unless founded upon commercial paper, was so assignable at common law as to authorize an action in the name of the assignee ; and not even in equity was an assignment allowed of a right of action arising from a mere personal wrong — as, libel, slander, and injuries to the person. The injury must be to the estate ; otherwise, there is nothing to be assigned. A mere personal Avrong will entitle the sufferer to redress, but his right to redress is not deemed property, so as to be the subject of sale, or so as to survive. Justice Cowan, in The People v. Tioga,^ in inquiring as to the assignability of a demand founded upon a tort, thus applies the test, to wit, whether the right of action would survive the death of the person injured : " For the purposes of any sort of assignment, legal or equitable, I can nowhere find that the term ' chose in action ' has ever been carried beyond a claim due either on contract or whereby some special damage has arisen to the estate of the assignor. Execu- tors at law take everything belonging to their testator which can be considered as property, or form the subject of dealing in any way. By the equitable construction of a statute they shall take rights for such injuries to the testator's personal property as render it less valuable to the executor. # * * j j^ave not been able to find a case in England which, in respect of personal estate, has given the assignees a greater right than would go to 1 This proviso is omitted in the codes of Iowa, Arkansas, California, Ohio, Ken- tucky, Nebraska, and the new Code of New York. 2 Butler V. New York & Erie R. Co., 22 Barb. 110. 8 19 Wend. 73. 43 § 39 OP THE ACTION. [PART 1. the executor." Mr. Story, also, says: "In general, it may be affirmed that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable of passing by assignment."^ Making, then, the assignability of a right of action to depend upon whether it will or will not abate by death, it becomes necessary to inquire what rights of action thus abate, both with reference to the right to prosecute by an assignee and by the personal representative.^ § 39. What Eights of Action arising from Torts survive under the Statute of 3 Edward III. — "At common law, in the case of injuries to personal property, if either party died, in gen- eral, no action could be supported, either by or against the personal representatives of the parties, where the action must have been in form ex delicto, and the plea, not guilty." ^ But the statute of 3 Edward III., chapter 8, having always been in foi'ce in this country, may so far, and the decisions under it, be treated as part of the common law — they certainly embody the general law upon the subject, when not changed by our own statutes — and, according to them, every kind of injury to personal property by which it has been rendered less beneficial to the estate gives a right of action which survives to the personal representative,* leaving the right which springs from personal injuries to die with the party. 1 Comegys ». Vasse, 1 Pet. 209. As to the general doctrine that rights of action arising from torts that will survive to the representative of decedent are assignable, see Tyson v. McG-uineas, 25 Wis. 656 ; Byxbie u. Wood, 24 N. Y. 607. " The power," says Gould, J., "to assign and to transmit to personal representatives are convertible propositions," quoting Denio, J., in Zabriskie v. Smith, 13 N. Y. 322. 2 The right to recover property of which one has been defrauded doubtless survives ; yet it has been said that the person defrauded cannot sell this right so as to enable the assignee to recover in his own- name ; that it would be a sale of a right to file a bill for fraud, which is against public policy; and this view is intimated in Smith v. Harris, 43 Mo. 562, although not necessary to the decision of that cause. The ques- tion is well discussed in McMahon v. Allen, 35 N. Y. 403, and the right to purchase such property with its incidents is sustained. Lord Eomilly is quoted as distinguish- ing between the sale of a bare right to sue in the particular case, and the sale of the property concerning which the suit is brought. But this distinction can hardly be made, for the right to sue for the recovery of property of which one has been de- frauded cannot be separated from the equitable title to the property ; the right is sold by the sale of the property, and cannot be severed from it. s 1 Chitty's PI. 68. ' Ibid. 69. 44 CH. III. J PARTIES TO ACTIONS. § 41 § 40. The Statutes in the Code States — New York, Mis- souri, and Arkansas. — The substance of the above view, in more 'definite form, is embodied in the New York Eevised Stat- utes, as follows: "Sec. 1. For wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrong-doer ; and, after his death, against his executor or administrator, in the same manner and with like effect in all respects' as in actions founded on contract. Sec. 2. The preceding section shall not extend to actions for slander, libel, assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or the person of the testator or intestate of any executor or admin- istrator." ^ These sections are copied into the Missouri act con- cerning administration of estates.^ They are varied, however, in Arkansas to read as follows : ' ' For wrongs done to the per- son or property of another, an action may be maintained against the wrong-doers, and such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrong-doer ; or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as in actions founded on contracts . Nothing in the pre- ceding section shall be so construed as to extend its provisions to actions of slander or libel." ^ § 41. Same Subject — Statutes of Ohio, Kansas, Nebraska, Indiana, and Iowa. — The Ohio Code of Procedure,* that of Kan- sas,^ and that of Nebraska* provide as follows : "In addition to the causes of action which survive at common law, causes of ac- tion for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwithstanding the death of the 1 2 Eev. Stat. N. X. 447, 448; .3 Eev. Stat. 1875, p. 732. 2 Wag. Stat. 87. See Haight v. Hart, 19 N. Y. 464, and Smith v. Kennett, 18 Mo. 154. 3 Gantt's Dig. 1874, JJ 4760, 4761. « §5 398, 399. s |g 420, 421. « gj 454, 456. 45 § 42 OF THE ACTIOK. [PART I. person entitled or liable to the same. No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecu- tion, for a nuisance, or against a justice of the peace for miscon- duct in office, which shall abate for the death of the defendant." The Indiana Code of Procedure ^ provides that " a cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction and false imprisonment. All other causes of action survive, and may be brought by or against the deceased party, except actions for promises to marry." The Iowa General Code places all wrongs arising from torts upon the same footing, by providing ^ that "all causes of action shall sur-vive, and may be brought, not- withstanding the death of the person entitled or liable to the same." It is held in Ohio that an action for slander does not abate by the death of the plaintiif pending the suit, but may be prosecuted by the personal representative.^ § 42. Same Subject — Statutes of Wisconsin, Kentucky, Ore- gon, and Minnesota. — The statutory provision in Wisconsin * is as follows : "In addition to the actions which survive at com- mon law, the following shall also survive, that is to say : actions for the recovery of personal property or the unlawful conversion thereof; actions for assault and battery, or unlawful imprison- ment, or for goods taken and carried away ; and actions for dam- ages to real or personal property." In Kentucky it is enacted^ that ' ' no right of action for personal injury or injury to real or personal estate shall cease or die with the person injuring or the persoii injured, except actions for assault and battery, slan- der, criminal conversation, and so much of the action for mali- cious prosecution as is intended to recover for the personal in- jury." For other injuries, an action lies the same as upon con- tract. In Oregon * a cause of action arising out of an injury to 1 ?J 782, 783. » Code 1873, ? 2525. ' Alpin V. Morton, 21 Ohio St. 536. * Kev. Stat. 1871, p. 1573, ch. 135, J 2. ' Gen. Stat. 1873, p. 179. « Gen. Laws 1874, p. 187. 46 CH. III.] PARTIES TO ACTIONS. § 43 the person dies with the person of either party, except when the death is caused by the wrongful act or omission of another, and when the person injured might have sued had he lived, and ex- cept certain provisions in relation to actions pending when a party dies ; and in Minnesota the statute ^ is substantially the same. All other rights of action survive to and against the per- sonal representative. § 43. Construction of these Statutes. — The language of the spveral enactments would seem to be so clear as to admit of little or no construction. In New York the provision quoted in sec- tion 40 has been several times brought to the consideration of the Supreme Court and of the Court of Appeals. In Zabriskie V. Smith the action was for deceit, and it appeared that the defendant had falsely and fraudulently represented a certain per- son to be solvent, in consequence of which the plaintiffs had trusted him with goods and lost the debt. Some of the plaintiffs had assigned their interest in the claim, and the court, without appearing to note the language of the statute, held that the claim was not assignable.^ The same court, shortly after, in Haight v. Hart,' sustained an action against the administrator of one who had practiced fraud in the sale of a farm ; and in Byxbie v. Wood* also sustained an action by an assignee of one who, by fraudulent representations, had been induced to part with money. In each of these cases the court practically annuls the doctrine of Zabriskie 1 Stat at Large 1873, p. 913, 2§ 24, 25. ' Zabriskie v. Smith, 13 N. Y. 322. The opinion in this case is hardly sustainable, either under the English statute or that of New York. The learned judge who deliv- ered the opinion (Denio) refers to Chamberlain v. "Williamson, 2 Mau. & Sel. 408, and quotes some of the language of Lord Ellenborough. The latter action was for a breach of promise of marriage, and was brought by the administrator of the promisee. The justice says: "Executors and administrators are the representatives of the per- sonal property — that is, the debts and goods of the deceased — but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate," etc. In Zabriskie v. Smith it is clear that the plaintiffs had suffered a wrong which operated to the injury of their personal estate. It was not a personal wrong merely, like an assault or slander, but by means of it the plaintiffs were induced to part with their property. Nor does the judge appear to have noted the language of the second section of the New York statute, which, by naming the causes of action which do not survive, implies that all others do. ' 19 N. Y. 464. * 24 N. Y. 607. 47 § 43 OF THE ACTION. [PAKT I. V. Smith, notes the exceptions contained in the 2d section of the statute, and holds that they show the legislative intention to be that all other causes of action founded on a tort should sur- vive.' The Missouri statute is the same as that of New York. An action was sustained in that state against the administrator of one who had fraudulently induced the plaintiff to marry him, by concealing the fact that he had another wife living ; she was allowed to recover for the value of her services as housekeeper, but not for the personal injury."^ In another case the adminis- trator of a father was permitted to recover diimiiges arising from negligently killing a minor son, but only so far as they had accrued during his life from the loss of the son's services.^ The Kentucky statute, quoted in section 42, is substantiiilly the same as that of 1812, and it is held in that state that in an action brought by persons held as slaves, against certain heirs who had destroyed the will of their ancestor, by which they had been emancipated, the cause of action survived against the representa- tives of the deceased wrong-doers;* also, more recently, that a false representation to a military officer, which caused the arrest of the plaintiff, furnished a cause of action that did not abate bv the death of the plaintiff.* In Kansas a demand against the defendant for tortiously obtaining iUegal fees had been assigned to the plaintiff, and he was permitted to sue in his own name, for the reason that the fraud was not such a tort as would die witli the party, inasmuch as it affected the estate of the person wronged.^ • A riglit of action springing from a personal injury caused by the negligence of the servants of a railroad company is held not to be assignable. Hodgman v. "Western R. Co., 7 How. Pr. 492. 2 Higgins V. Breen, 9 Mo. 497. The court held that defendant's intestate, if living, would not have been permitted to set up the fraud as a defense to show that there was no implied promise to pay for the work and labor. 3 James v. Christy, 18 Mo. 162. Scott, [J., in this case says : " The father was entirely deprived of all property in his son's services. The recovery will be limited to the value of the services. The administrator will not be entitled to any remunera- tion for the loss of the society or comforts afforded by a child to its parent. Damages of this character died with the parent, and his estate is entitled to compensation only so far as it has been lessened by the loss of the son's services. The father was no longer entitled to these services than during his life." 'White V. Turner, 1 B. Mon. 130. » Huggins u. Toler, 1 Bush, 192. • Stewart v. Balderston, 10 Kan. 131. 48 CH. III.] PARTIES TO ACTIONS. § 44 § 44. When does a personal Claim become a Debt? — A judgment, upon M'hatever founded, is everywhere regarded as a debt which does not abate by death, and which is transferable like an ordinary contract. But the character of the demand is not changed until judgment, and an action based upon a cause of action which would not survive will abate by death during any step of the proceeding, and the demand cannot be assigned after verdict merely.^ By the English practice, motions for a new trial or in arrest are disposed of before the rendition of judgment, and such is the logic of our own practice, for it is the object of such motions to prevent the entry of judgment. But in many of the states the practice is to enter judgment upon the verdict at once, and the effect of these motions is to suspend the judgment until they are disposed of. In such states the courts are disposed to treat the judgment as a subsisting debt, notwithstanding the motion ; and in others, if the judgment has been prevented by a motion not disposed of at the term, and in the meantime a party ■dies, so that the action would abate, judgment, if the motion be overruled, will be entered nunc pro tunc as of the term when the verdict was obtained.^ ^ Lawrence v. Martin, 22 Cal. 173. A report of referees upon a su^bmission in an action for seduction has the force of a verdict ; but the demand does not become a -deht until judgment, and hence is not discharged by bankruptcy when the petition was made after the report, but before the judgment. Crouch v. Q-ridley, 6 Hill, 250. To the same effect as to a verdict for breach of promise of marriage is Charles, In re, 14 East, 197 ; and, as to a verdict for trespass, is Kellogg v. Schuyler, 2 Denio, 73. 2 In Dial v. Holter, 6 Ohio St. 228, a verdict had been obtained, upon which judg- ment was entered. A motion for a new trial was filed, and the judgment was reversed upon error, but for irregularities subsequent to, and which did not affect, the verdict. Three years after the verdict the cause came up for final judgment ; but in the mean- time the defendant had died, and the cause of action was such as to abate by death. But the court would not let the plaintiff suffer by the delay, and entered judgment nunc pro tune. Held, in Collins v. Prentice, 15 Conn. 423, that if the defendant dies pending a motion for a new trial, the court, upon overruling it, may enter judgment nunc pro tune ; and the same view is taken in Kightmyre v. Durham, 12 Wend. 245. In Turner v. Booker, 2 Dana, 334, a judgment had been taken by default for assault and battery, and damages assessed. Held, that the judgment was not vacated by a motion for a new trial, and that the action would not abate by the death of the plaintiff pending the motion. 49 § 45 OF THE ACTION. [PABT I. CHAPTER IV. Or Parties to Actions, continued. 2. Parties Plaintiff in Actions founded on Contract. Section 45. In Actions by Assignees, tlie equitable Bale adopted. 46. The Exceptions. 47. "What Contracts are assignable. 48. Contracts not assignable. 49. Indorsements and Assignments by Executors and Administrators. 50. The Mode of Assignment. 51. Indorsements and Assignments without actual Sale. 52. Who may be Plaintiffs other than Parties in Interest. 53. 1. Actions by Executors and Administrators. 54. 2. Actions by Trustees of an express Trust. 55. 3. ByPersons with whom, or in whose Name, a Contract is made for the Benefit of another. 56. 3. Continued — An Agent merely, not authorized to sue. 57. 3. Continued — Cases when the Representative may sue in his own Name. 58. 3. Continued — May the Beneficiary also sue ? 59. 3. Continued — The Extent of the Change made by the Code. 60. 4. By Persons expressly authorized by Statute. 61. Joinder of Plaintiff's — The general Rule. 62. Joinder of Plaintiffs in Common-law Proceedings. 63. Whether the Eight is joint or several. 64. Assignment of joint Rights. 65. Parties in partial Assignments. 66. How should joint Obligees assign. 67. As to Joinder in Recovery of Rent by Tenants in Common. 68. Continued. 69. Continued — Parties under the Code. 70. Joinder in Actions by Distributees and Legatees. 71. Parties in Actions concerning the separate Property of married Women. § 45. In Actions by Assignees, the equitable Rule adopted. — As between the original parties to a contract, when contracting in their own right, no difficulty will arise as to who should be named as plaintiff, nor is the rule changed by the Code. But in 50 CH. IV. J PARTIES TO ACTIONS. § 46 actions founded upon contract formerly called legal, where tlie contract has been assigned, the rule adopted by the Code is the one that had prevailed in equity practice. Except as to negoti- able paper, it was necessary, in common-law pleadings, to prose- cute in the name of the original obligee or payee, and, "in general, the action upon a contract, whether express or implied, or whether by parol, or under seal, or of record, must be brought in the name of the party in whom the legal interest in such con- tract was vested."* Except as above, the one holding the legal interest in a contract is the person to whom the promise was made, and from whom the consideration passed, and he is the person who was required to bring the action.* In negotiable instruments the indorsee if payable to order, or the holder merely if payable to bearer, has, by the terms of the instrument, the legal interest, and could always bring the action in his own name ; but in other agreements, if a third person became their owner by assignment, there was no privity between him and the promisor, and if he would enforce them by action, he was re- quired to do it in the name of the original promisee ; the assignee was called the equitable owner, and if named in the record, he was only described as the person for whose use the action was brought. But under the new system the rule is adopted which had always prevailed in equity practice, and which required, with certain exceptions named, that actions should be prosecuted in the name of the real party in interest. So, then, if any contract, or any right of action arising either from contract or from a tort which is capable of assignment, is assigned or transferred to a third person, the action, whatever its nature, must be brought in the name of the assignee or transferee as the real party in interest. § 46. The Exceptions. — But if the requirement were impera- tive that those must sue, and only those, who have the real, the beneficial, interest in the contract to be enforced, or in the relief to be sought, great inconvenience would often arise, and repre- sentative and express trusts might be practically destroyed. A 1 1 Chitty's PI. 2. « Hall V. Huntoon, 17 Vt. 244. 51 § 46 OP THE ACTION. [PAET I. factor doing business in his own name, in a single transaction transferring property in the sale of which many of his corre- spondents may be beneficially interested, possessing, also, himself an interest to the extent of his commissions, and as guaranteeing the payment, might find it very inconvenient to himself, and. make it oppressive to a defendant, if compelled to split up his cause of action against a purchaser, and apportion to each of his correspondents their several interests in the subject of the action. And so, an administrator has less interest in collecting the assets of the deceased than the creditor or the distributee, yet he, of necessity, must bring the action ; and in case of many express trusts, where property has been placed in the hands of one to be held and used for the benefit of another, if the beneficiary, who is the real party in interest, could bring ordinary suits in his own name, he might, against the will of the trustee and contrary to the objects of the trust, be able to control the property. Hence, trustees of an express trust, including those in whose name a contract is made for the benefit of others, executors and administrators, and those who may be authorized by statute, may still sue in their own name, and without joining those for whose benefit the suits are brought.^ The language of the difier- ent codes covering tlaese exceptions is not precisely the same, but the same in effect ; and in Indiana^ the assignor, if the assignment is not made by indorsement in writing, must be made a party de- fendant ; and in New York, North and Soutli Carolina ^ " an action may be maintained by the grantee of land in the name of the grantor, or his or her heirs or legal representatives, when the grant or graiits are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the • Code Proc. N. T., § 113; Code Civ. Proo. 1876, ? 449; Code Proc. Ohio, J 27 Wag. Stat. Mo. 1000, ? 3 ; Code Civ. Proc. Ind., g 4 ; Kev. Stat. "Wis. 1871, ch. 22, ? 14 Stat, at Large Minn., ch. — , § 28 ; Bullitt's Code Ky., § 21 ; Code Iowa 1873, J 2544 Code Civ. Proc. Kan., J 28 ; Code Proc. Neh., ? 30 ; Code Civ. Proc. Cal. 1874, § 369 Code Civ. Proc. Greg., § 380 ; Comp. Laws Nev. 1873, ? 1069 ; Code Civ. Proc. N. C. g 57; Code Proc. S. C, § 136; Code Proc. Pla., J 64; Gautt'sDig. Arlj. 1874, g 4472 Code Proc. Col., J 5. 2 Code Civ. Proc., ? 6. » N. Y. Amendment 1862, J 111. See "Waits' Code Civ. Proo. 494; Code N. 0., 2 55 ; Code S. C, J 134. 52 CH. IV. J PAETIEiS TO ACTIONS. § 47 time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision." ^ §47. What.' Contracts are assignable. — The requirement that actions sh^** be brought in the name of the real party in interest changes the common-law rule of pleading chiefly in regard to suits for the enforcement of those contracts which before were transferable or assignable in equity, but to which the assignee acquired no technical, legal title. Choses, or things, in action, at common law, were not assignable. A thing in action was regarded as a right merely to go to law, and the policy of the old law forbade the sale of a right to sue. And after they came to be treated as property, and the right of transfer came to be recognized and the rights of the assignee to be protected, the form, as usual, survived when its reason had passed away, and the owner was still obliged to sue at law, as though no assign- ment had been made. The Code makes no change in the law ot assignment. It abolishes, so far as it can be done, the distinc- tions between rights at law and in equity, treats an equitable owner as the actual owner, and an equitable assignment as an 1 Tinder tlie statute of 32 Henry VJJI., ch. 9, in force in most of the states, the title to land will not pass by a conveyance if at the time it is held adversely to the grantor. See 4 Kent's Com. 446. In commenting upon the statutory provision named in the text, Woodruff, J., in Hamilton v. Wright, 37 N. Y. 506, 507, says: "It was settled before the Code was adopted that a deed of land held in adverse possession ^yas good against the grantor and his heirs, and against strangers, though void as against the party in possession of the land at the time of its execution ; that, being void as to the latter, the grantor could maintain the action to recover the possession, and the grantee could not, but that a recovery in the name of the grantor inured to the benefit of his grantee. When, therefore, the Code had, in section 111, provided that every action should be brought in the name of the real party in interest, a doubt arose whether an action to recover lands thus conveyed could be brought by any one. If brought in the name of the grantee, he could, as against the party in possession, show no title ; for, as against such party, his deed was void. If brought in the name of the grantor, it might be shown that he was not the real party in interest, because, if he recovers, his recovery would inure, not for his own benefit, but for the benefit of the grantee. The Code was, therefore, amended so as to exclude such a conclusion, by adding to the section the provision that — (the one given in the text). The purpose was, I think, to limit the operation of the section as previously enacted, not to create any new authority as between the grantee and grantor for the use of the name of the former by the latter." In those states where one claiming title to land held adversely is authorized to convey with like effect as though in possession, this provision is wholly unnecessary. The statute in Missouri gives this authority. 1 Wag. Stat. 273, § 6. Do § 48 OP THE ACTION. [PAET I. actual assignment. But it goes no further, and it makes nothing transferable that was not so before. So, we are governed by the old law as to what things in action are assignable, whether sound- ing in contract or in tort.^ The general rule is that all contracts, and all rights of action arising from their breach, are capable of sale and assignment. There are a few exceptions to be noted in the next section, but the commercial spirit has so triumphed over other ideas that all things in action as well as in possession, all rights not personal merely, all that can be treated as part of one's estate that are a subject of valuation, that are property, can be transferred like other property. And, as we have heretofore seen in regard to torts, ^ survivorship is the test of assignability.' § 48. Contracts not assignable. — There is a class of contracts of a mere personal nature that cannot be separated from the person with whom they are made, that usually involve a personal trust or confidence, that can have no existence except as between the original parties, and hence that can neither survive to or against the personal representative of a deceased party, nor are they capable of sale or assignment. A contract of apprentice- ship is one involving a personal trust, and cannot be transferred.* ' Harris, J., in Hodgman v. Western E. Co., 7 How. Pr. 492, says that the only change made by the Code "is to transfer, with the beneficial interest, the right of action also, in those cases where, before, the court would recognize and protect the rights of the assignee. No new right of action is created ; no authority is given to assign a right of action not before assignable." 2 Ante, § 38. ' The authorities cited in regard to the application of this test to rights of action arising from torts apply equally to contracts. See cases cited, ante, §J .S8, 43. * In Hall V. Gardner, 1 Mass. 172, the plaintiffs charged that they were entitled by an indenture to the services of an Indian boy; that they contracted with the defendant to take him into their service for a voyage at sea, etc., and to pay them a portion of the profits realized from the voyage ; that they did not enter upon the adventure agreed upon, etc., by means of which the plaintiffs lost their anticipated share of the profits and the services of the boy. It appeared in evidence that the boy had been bound as an apprentice to the father of the plaintiffs until his majority, and that he had assigned the indenture to the plaintiffs. Held, that the assignment was a nullity ; that the services could not be transferred. Also, that had the indenture been made to the plaintiffs, they would not have had a right to send the apprentice " to the end of the globe in their service." In Davis v. Cobum, 8 Mass. 299, the apprentice had been bound to the plaintiff by his father, and the plaintiff had transferred a por- tion of the term to the defendant for $150. The apprentice absconded, and the action was to recover the price agreed to be paid. JSeld, that the contract of apprenticeship 54 CH. IV. J PARTIES TO ACTIONS. § 48 And so, a contract for marriage is of such a personal nature that a right of action for its breach will not survive the death of either party,! and is, therefore, not assignable. The principle is thus stated by Chitty : ^ "No action lies against executors upon a was a personal trust, and that its assignment did not confer any authority or right to the assignee, especially as it was made in New Hampshire and the apprentice was to be taken to Massachusetts. See Cochran's Executor v. Davis, 5 Litt. 118. 1 Chamberlain v. Williamson, 2 Mau. & Sel. 408 ; Lattimore v. Simmons, 13 Serg. & B. 183 ; Stebbins v. Palmer, 1 Pick. 71 ; Smith v. Sherman, 4 Cush. 408. In Stebbins V. Palmer the opinion, after referring to rights of action which do and do not survive that arise from torts, says: " The distinction seems to be between causes of action which affect the estate and those which affect the person only ; the former survive for or against the executor, and the latter die with the person. According to this distinc- tion, an action for the breach of a promise of marriage would not survive, for it is a contract merely personal — at least, it does not necessarily affect property. The'prin- cipal ground of damage is disappointed hope; the injury complained of is violated faith, more resembling in substance deceit and fraud than a, mere common breach of promise." In Smith v. Sherman the court goes a little further, and attempts to define the special damage for which the cause of action would survive. Says the court, per Shaw, J.: "These authorities [those above cited] speak of cases where no special damage is alleged. The precise extent of this qualification is not explained ; the most natural supposition is that it must be some damage of such a character that it might be given in evidence to aggravate the damages in an action, or be itself the substantive cause of action — as, in case of trespass yitare clausum, and carrying away plaintiff's goods, the carrying away the goods may be a ground of special damage, or be the cause of a separate action. In this view all the damage directly incidental to the complaint, the breach of promise, if the principal action falls, must fall with it. In looking at the 'specification of claims set forth by the attorney of the applicant, we can perceive no one which would be a substantive cause of action. The time lost and the expenses incurred in preparation for the marriage might have been properly specified in making up the aggregate of damage had the writ been prosecuted and the case proved, but they would have been strictly incidental. Therefore, if the principal action for breach of promise of marriage could not be maintained, these damages could not be recovered in any form, and a separate action for them would not lie." Chamberlain v. Williamson, 2 Mau. & Sel. 408, was also an action for a breach of a promise of marriage, and in holding that the right of action did not survive, the court, per Ellenborough, .J., says: "If this action be maintainable, then every action founded on an implied promise to a testator, when the damage subsists in the previous personal suffering of the testator, would be also maintainable by the executor or ad- ministrator. All injuries affecting the life and health of the deceased, all such as arise out of the unskillfulness of medical practitioners, the imprisonment of a party brought on by the negligence of an attorney — all these would be breaches of the im- plied promise by the persons employed to exhibit a proper portion of skill and atten- tion. We are not aware, however, of any attempt of the executor or administrator to maintain an action in any such case. When the damage to the personal estate can be stated on the record, that involves a different question." > 1 Chitty's PL 61. 55 § 49 OF THE ACTION. [PART I. covenant to be performed by the testator in person, and which, consequently, the executor cannot perforin, or for the breach of a personal contract, when the breach can occasion no injury to the personal estate of the testator or intestate, and when, there- fore, the remedy dies with the person ;" and Chitty on Contracts' says that both specialties and simple contracts bind the execu- tors, unless it be "a personal engagement to be performed by the testator only, and requiring his personal skill and taste." * § 49. As to Indorsements and Assignments by Executors and Administrators. — It is thus seen that, as to all contracts and other things in action which can be assigned, the action must be brought in the name of the assignee, and it is assumed that all persons capable of contracting are also capable of indorsing commercial paper, or of assigning any chose in action. But doubts sometimes arise whether an indorsee or assignee has ac- quired such a title as to authorize an action in his own name ; and, first, when the transfer has been made by an executor or administrator. As to contracts made with the administrator, although dealing with the assets, no question can arise ; they are his contracts, and not those of the deceased, and he may dispose of them as he pleases. And as to undertakings and other rights in action belonging to the deceased at his death, he is not bound to prosecute the same, but may, if acting in good faith, assign and transfer them to third persons ; ' and when there are several > Page 98, Uh Am. ed. ' In Schulz V. Johnson, 5 B. Mon. 497, the action was based upon an agree- ment made with the plaintiff's intestate, by which the defendants agreed to purchase six successive crops of hemp of the intestate's own raising, embracing all the hemp he could raise upon certain land. The contract was held to be a personal one, and, upon his death, his administrator was defeated in an attempt to compel the defend- ants to take the hemp thereafter raised. The court made the agreement personal because of the phrases "of his own raising," and "he can raise." In Coleman v. WooUey, 10 B. Mon. 320, Coleman had employed WooUey to defend her son, charged with murder. Before the trial Woolley had been appointed judge, and the defense was conducted by his partner. Seld, that the contract, though personal, had been complied with, and that Coleman was liable for the fee. 2 Eawlinson v. Stone, 3 Wils. 1 ; Watkins v. Maule, 2 Jac. & "W. 237 ; Makepeace V. Moore, 6 Gilm. 474; Owen v. Moody, 29 Miss. 82; Band v. Hubbard, 4 Meto. 252; Petersen v. Chemical Bank, 32 N. Y. 47. 56 CH. IV.] PARTIES TO ACTIONS. § 50 executors or administrators, the indorsement may be made by one — their interest is joint.' This transfer must, however, be in good faith, in the interest of the estate, and if made in pay- ment of a private debt of the executor or administrator, it is a devastavit, and passes no title to one who takes with notice.^ In some of the states it is held that a foreign executor or admin- istrator cannot so pass title to a chose in action belonging to the deceased at his death as to enable the indoi'see or assignee to sue in his own name ; that, inasmuch as the foreign assignor can- not himself sue without taking out letters in the state where the action is brought, and where he would be bound to make the proper distribution, he cannot so transfer the claim as to avoid that duty.* In other states, however, such assignments are recognized as passing title to the assignee, although the assignor has only taken out letters in a foreign state.* Most of the au- thorities cited in this section are cases concerning the assignment of negotiable paper ; but where, as under the Code, the assignee of all choses in action may sue in his own name, they are all equally transferable, and the same rule must hold. The peculiar rights and liabilities of parties to commercial paper under the law- merchant cannot aflfect this question. § 50. The Mode of Assignment. — By the law-merchant, the legal title to commercial paper, payable to order, could only pass bv indorsement, and the purchaser who would sue as holder must show his right as indorsee. But one may become the equitable owner without indorsement, and, as being the real party in interest, is required to sue in his own name. No particular mode of transfer is required ; a written indorsement or assign- ment upon the back of the paper evidencing the debt is to be de- sired as matter of evidence, but so far as concerns the right of 1 Mosely v. Graydon, 4 Strobh. 7 ; Wheeler v. Wheeler, 9 Cow. 34 ; Bwight v. Newell, 15 111. 333. 2 Makepeace v. Moore, 5 Gilm. 474 ; Miller v. Helm, 2 Smed. & M. 687 ; Scott v. Searles, 7 Smed. & M. 498 ; Miller v. Williamson, 5 Md. 219. 3 McCarty v. Hall, 13 Mo. 480 ; Stearns v. Burnham, 5 Me. 261 ; Thompson ». Wil- son, 2 N. H. 291. * Harper ». Butler, 2 Pet. 239 ; Reddick v. Moore, 65 N. C. 382 ; Kand v. Hubbard, 4 Mete. 252; Petersen t;. Chemical Bank, 32 N. Y. 47. 57 § 51 OF THE ACTION. [PAKT I. a holder to become plaintiff, the transfer may be shown by any other evidence. Thus, it may be made upon a separate paper,^ and even a verbal sale is sufficient.^ As to the effect of a partial assignment, it is held in Kentucky that no title passes by it ; that the holder may recover in full, but to the extent of the interest assigned in trust for the assignee.' In Indiana the assignee of part of a judgment was permitted to unite in an action with the owner of the residue ; * and the assignee of one of two payees of a promissory note becomes the real party in interest with the other payee .^ § 51. Indorsements and Assignments without actual Sale. — Most of the courts have held that where negotiable paper has been indorsed, or other choses in action have been assigned, it does not concern the defendant for what purpose the transfer has been made, and, in an action by the transferee, he cannot, unless he has some defense or holds some claim against the real owner, object that the suit is not in the name of the real party in interest. It is sufficient for him that the holder has a right to receive the money — that he will be protected from any other demand founded on the same claim. Thus, a judgment-debtor, when sued by an assignee of the judgment, has no interest in impeaching the assignment, and it is no defense that the judg- ment-creditor is still beneficially interested.^ In Missouri the ' Thornton v. Crouther, 24 Mo. 164 ; MoClain v. Weidenmeyer, 25 Mo. 364. 2 Andrews v. McDaniel, 68 N. C. 385 ; Weinwick v. Bender, 83 Mo. 80 ; "Williams V. Norton, 8 Kan. 295 ; Carpenter v. Miles, 17 B. Mon. 598 ; Pearson v. Cummings, 28 Iowa, 344; White o. Phelps, 14 Minn. 27; Hancock v. Eitchie, 11 Ind. 48. The Indiana Code (§ 6) requires that where an action is brought by the assignee of a claim founded on contract, and not assigned by indorsement in writing, the assignor shall be made a party. 3 BUedge v. Straughan, 2 B. Mon. 82 ; Bank of Galliopolis v. Trimble, 6 B. Mon. 599. * Tapping v. Duffy, 47 Ind. 57. 6 Groves v. Ruby, 24 Ind. 418. A co-plaintiff may assign to the defendants his interest in the contract sued on ; it will be treated as a payment pro tanto, and the cause will proceed to recover the amount due the other plaintiffs. McPike v. McPherson, 41 Mo. 521. « Cottle V. Cole, 20 Iowa, 481. In this case Dillon, J., speaks of the rule as estab- lished by the course of decision in Iowa, that one holding the legal title to a note or other instrument may sue upon it, though he be agent or trustee, and liable to account for the proceeds, although the case is opened to any defense which may exist against the person beneficially interested. 58 CH. IV.] PARTIES TO ACTIONS. § 51 indorsee of a negotiable note for collection may still sue in his own name.' In New York the rule is settled in the Court of Appeals, and contrary to previous holdings in the Supreme Court, that the regular indorsee of negotiable paper may recover in his own name, notwithstanding he is a mere agent of the payee, and is bound to account to him for the proceeds.^ So far as concerns the right of the transferee to sue in his own name, there is no differ- ence, in principle, between paper negotiable by the law-merchant and ordinary choses in action assignable in equity. As to who is the proper plaintiff, the Code makes no distinction, and the New York Court of Appeals recognizes the right of the assignee of such demands to sue in his own name, although not the absolute owner — as, where the assignor retains an interest in the fund,^ even if the assignee is accountable for all he may collect.* The Supreme Court of Minnesota takes the same view as that of the New York Court of Appeals, and in Castner v. Sumner^ suggests the following test : "They [the defendants] can only raise the objection of a defect of parties to the suit where it appears that some other person or party than the plaintiff has such a legal interest in the note that a recovery by the plaintiff would not preclude its being enforced, and they be thereby sub- jected to the risk of another suit for the same subject-matter."^ 1 "Webb V. Morgan, 14 Mo. 428 ; Beattie v. Lett, 28 Mo. 596. In Beattie v. Lett the court speaks of the indorsee as a trustee of an express trust. 2 Eaton V. Alger, 47 K. T. 345. "As to anything beyond the bona-fides of the holder, the defendant who owes the debt has no interest." City Bank of New Haven V. Perkins, 29 N. T. 554. See, also, remarks of Davies, C. J., in Brown KAPenfield, 36 N. T. 473 ; and see Williams v. Brown, 2 Keyes, 486. 8 Durgin v. Ireland, 14 N. Y. 322. * Meeker v. Claghorn, 44 N. T. 349 ; Allen v. Brown, 44 N. T. 229. In Allen v. Brown certain coowners had assigned to the plaintiff their interest in the demand without consideration. The assignee was held to be the real party in interest, not- withstandino- he might be acting in the interest of said coowners, and be liable to them for their share of the amount collected. In Meeker v. Claghorn the doctrine is spoken of as settled in New York that an assignment in writing, absolute in its terms, makes the assignee the real party in interest, notwithstanding he may be acting in the interest of the assignors. 6 2 Minn. 44. " In Pease v. Bush, 2 Minn. 107, some of the plaintiflTs bad purchased the inter- est of certain partners in a firm, to whose order the notes in suit had been made payable, and the new firm brought the action in its own name, without indorsement bv the old firm. Held, that they were the proper parties ; that the title of a note ^ 59 § 51 OF THE ACTION. [PAET I. In California the ruling is that an assignment, absolute and un- conditional in its terms, gives the assignee a right to recover in his own name, although the transfer was only as collateral security ;^ and the same view is taken in Kansas, although there be no written assignment.* This is not the universal view, and in some of the states such a construction is given to the requirement that the action should be in the name of the real party in interest as to permit a de- fendant to show by answer that the plaintiff is not the real owner of the demand, notwithstanding the apparent regularity of an assignment. Thus, in Indiana the defendant was allowed to im- peach the plaintiff's title by showing that the payee of the note sued on had assigned it to the plaintiff to secure an indebtedness which had been paid ; ' and he may also show that the plaintiff has parted with his interest in the subject-matter of the action,* payable to order would pass by delivery merely, although an indorsement would be necessary to protect the holder from defenses good against the payee. In White v. Phelps, 14 Minn. 27, the note in suit had, without indorsement, been pledged to the plaintiff as collateral security. Held, that the pledgee was not bound to sell the in- strument, hut might collect it in his own name. ' Wetmore v. City of San Francisco, 44 Cal. 294. The controversy in this case arose out of an attempt of the plaintiff below to prosecute for an alleged balance upon certain demands which had been assigned as collateral, and upon which a judg- ment had been obtained by the assignee. Held, that the assignee had a right to sue for the whole demand, and that the assignor is estopped from bringing an action upon any of those which were covered by the terms of the assignment, upon the claim that only a portion were assigned, and, in fact, put in judgment. See, also, Gradwohl v. Harris, 29 Cal. 150. ' ■Williams v. Norton, 3 Kan. 295. ' Swift V. Ellsworth, 10 Iiid. 205. « In Gillispie v. Tort Wayne & Southern R. Co., 12 Ind. 398, the plaintiff below had sued upon a stock note, and the answer of defendant that the note had been delivered to one Jones, who was authorized to collect it and apply the proceeds upon a debt due him, was held to be good. In Hancock v. Eitchie, 11 Ind. 48, it was held that the ac- tion should be brought in the name of one who had bought a promissory note, although it had not been indorsed to him. In showing by answer that the plaintiff is not the real party in interest, the Supreme Court of Indiana enforces the rule that a pleading must state facts, and not inferences, especially in dilatory pleadings. In Hereth v. Smith, 33 Ind. 514, the plaintiff had sued as indorsee of the note, and the de- fendant answered that he had no interest in it, but that it belonged to one . This answer was held to be insufficient, Worden, J., remarking : " The defendants [by not denying it] admit the making of the note, and that it was duly indorsed to the plaintiff by the payee thereof, as alleged in the complaint ; but still they say that she does not own it, hut, on the contrary, it belongs to some one else, and she is not the real party 60 CH. IV.] PARTIES TO ACTIONS. § 52 and though the payee and apparent holder, he cannot sue in his own name. The same view is taken in Kentucky, and an an- swer that the note sued on had been sold to a third person with- out indorsement is held to be good.^ § 52. Who may be Plaintiffs other than Parties in' Inter- est. — The exceptions to the requirement that actions shall be brought in the name of the real party in interest are the same in all the code states, although the language varies. The New York statute, which is followed in most of these states, uses the following language: "An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A trustee, of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another." ^ The original act in New York embraced only the first paragraph, and the other was afterwards added to remove a doubt whether the class of persons named in it was included in the term "trustees of an express trust." The doubt might well be entertained, because it is not true that a person with Avhom, or in whose name, a contract is made for the benefit of another is necessarily a trustee of an express trust. He may be such trustee, and may not. The language of the Ohio Code, and in interest. But if the note was thus indorsed to the plaintiff, why does she not own it? why is she not the real party in interest? and how did it hecome the property of some one else ? The pleading fails to answer any of these queries, or to state any facts from which the assumptions are drawn. No new facts are stated that avoid the legal effect of the facts thus admitted. That such pleading is had needs the citation of no authorities, hut for convenience of reference we cite the following: Garrison u. Clark, 11 Ind. 369 ; Elder v. Smith, 16 Ind. 466 ; Raymond v. Pritchard, 24 Ind. 318 ; Lewis B. Sheaman, 28 Ind. 427." ' Carpenter v. "Wiles, 17 B. Mon. 598 : " The payee was a proper party, but Wil- son, the beneficiary, was a necessary party, and the suit could not have rightfully pro- ceeded without his being a co-plaintiff." The principle that the bolder, whether the absolute owner or not, has sufficient title to maintain an action, seems, however, to be recognized in those decisions which authorize the assignee of a chose in action to use it as a set-off when he holds it for that purpose only, and is to account to the assignor for only the amount he may recover by such set-off. See Atwell v. Cook, 9 B. Mon. 858 ; Graham v. Tilford, 1 Mete. (Ky.) 112. ' See references to the various codes in section 46. 61 § 53 or THE ACTION. [part I. that of several other states, is more appropriate. "An executor, an administrator, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted ; ' ' and the following special, but hardly necessary, clause is added : ' ' Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way.'" But whichever phraseology is used, the statute plainly includes four classes of persons other than parties in interest who may prosecute an action in their own name : first, executors and administrators ; second, trustees of an express trust ; third, persons with whom, or in whose name, a contract is made for the benefit of another ; and, fourth, persons expressly authorized by statute.'' § 53. 1. Actions by Executors and Administrators. — The necessary exception contained in the statute as to the personal representative of a deceased person leaves, as before, his right to sue in his own name, whether personally or in his repre- sentative capacity, although other provisions, as will be here- after noticed, may authorize him to become a party where he could not have been in common-law actions. In this connec- tion we are chiefly concerned to inquire as to what actions the executor or administrator must, or may, sue in his representative capacity — that is, as such executor, etc. — and when in his own name. And to enable us to answer the inquiry, it should be noted that the personal representative of an estate represents it only in regard to such claims and other property as belonged to the testator or intestate at his death, and tliat, ordinarily, subsequent contracts, although made concerning the assets, are his own. Thus, if a promissory note be made payable to him, although as executor or administrator, he does not trace his 1 The phraseology adopted in the states that do not follow the language of the New York Code, is not precisely the same, but in none of them is a trustee of an express trust confounded with one in whose name a contract may be made for the benefit of another. * See, upon the interpretation of this section, Pomeroy's Civ. Proc, ^ 171 et sea 62 CH. IV. J PARTIES TO ACTIONS. § 53 title through the deceased, he does not represent the deceased in enforcing a contract made with the latter, but may count upon it as a promise made to himself. So, if the instrument were the property of decedent, and were payable to bearer, the representa- tive is the bearer and may treat it as his own. In these cases he may, at his election, sue in his representative capacity — in which case he must plead and prove his authority. The right to sue in his own name, or as executor or administrator, at his election, although once questioned, is now clearly established.^ And on the resignation or death of the administrator, the paper may pass to his successor, and, unless it has been previously col- lected by his own personal representative, such successor may bring suit as administrator de bonis non.^ A contrary view has been taken in Missouri.^ The doctrine as generally received is thus stated in Mowry v. Adams,* by Parker, C. J.: "It is settled that where a contract is made with an executor or admin- istrator personally, after the death of the testator or intestate, or where money is received by the person sued after death, in such cases the executor or administrator may either sue in his own name or as executor or administrator." And it necessarily ' Mowry' v. Adams, 14 Mass. 327 ; Bright v. Currie, 5 Sandf. 433 ; Merritt v. Sea- man, 2 Seld. 168 ; Savage v. Meriam, 1 Blackf. 176 ; Patchen u. Wilson, 4 Hill, 57 ; Olive V. Townsend, 16 Iowa, 430 ; Lawrence v. Vilas, 20 Wis. 381. ^ Catherwood v. Chabaud, 1 Barn. & Cress. 150. In this case a bill of exchange, in- dorsed in blank, was delivered to the administratrix in payment of a debt due the deceased. Upon her death it was sued by the administrator de bonis non, and, upon full consideration, each judge giving an opinion, his right to bring the action was sustained. The case is given at length in note o, 1 Pars, on Notes & Bills, 156. ' Harney v. Dutcher, 15 Mo. 89. The action was brought by an administrator de bonis non upon a note for the hire of a slave belonging to the estate, and another agreement in regard to him, given to and made with his predecessor as administrator, who resigned before the note fell due. A demurrer to the petition, upon the ground that the plaintiif had not legal capacity to sue, was sustained. The court assumes that the original administrator was entitled to the money in his own right, or as trustee, the contract having been in his own name for the benefit of another. The latter supposition would give him a right to sue, but should not the beneficiary— i. e., the estate as represented by the administrator de bonis non — being the real party in interest, also have the right? * 14 Mass. 327. The administrator of a surety had paid the debt of his principal, and it was held that he might bring the action against the principal in his own name, because the liability of the principal accrued when the debt was paid, and this was after the death of the intestate. 63 § 54 OF THE ACTION, [PAKT I. follows that, if he die before suit, the action may be either in the name of his own representative or in that of the administrator de bonis non. As shown by the judges in Catherwood v. Chabaud, it may, under different circumstances, be best for one or the other to sue — as, on the one hand, if the amount to be recovered would be assets of the first intestate, it would save a transfer to let the action be brought by the administrator de bonis non; but, on the other hand, if the original administrator had already charged himself with the amount, his own representative is the proper plaintiff. The executor and administrator can, ordinarily, bring no action for an injury to, or upon, a contract pertaining to the realty unless a debt has been created previous to the death of decedent ; and for the plain reason that the title to the realty passes to the heir. But the California statute has so far changed the common law as to give the personal representative the possession of all the estate of decedent, real and personal, for the purposes of administration, and expressly authorizes the maintenance of actions by executors and administrators for the recovery of any property, real or personal, or for the possession thereof.^ The Missouri Administration Act authorizes executors and administrators, under direction of the Probate Court, to lease the real estate of decedent for any term not over two years, and to receive and recover rents. ^ § 54. 2. Actions by Trustees of an express Trust. — It is evi- dent from the use of the term ' ' express trust ' ' that it cannot have been the legislative intention to authorize all who may be, or may be held to be, trustees to sue in their own name. An ex- press trust must be one directly created, and, when pertaining to the realty, evidenced by an instrument in writing. The term, as applied to land, had been limited in New York by the Eevised Statutes, and, in all cases, the title to the land is vested in the 1 Code Civ. Proc. Cal. 1871 ?j 1581, 1582, also § 1452. The right is not exclusive, as the heirs or devisees are authorized, either themselves or jointly with the executor or administrator, to sue for the possession of real estate, or for the purpose of quieting title against any one except the executor, etc. For construction of these sections, see Curtis V. Sutter, 15 Cal. 264 ; Meeks v. liahn, 20 Cal. 620 ; Updegraff v. Trask, 18 Cal. 459 ; Grattan v. Wiggins, 23 Cal. 29 ; Emeriok v. Penniman, 26 Cal. 119. ' Wag. Stat. 89, J 48. 64 CH. IV. J PARTIES TO ACTIONS. § 54 trustee, \Adth certain duties to be performed. Mr. Kent calls them active trusts, and says that " express trusts are allowed in those cases only in which the purposes of the trust require that the legal estate should pass to the trustee." ^ Elliott, C. J., in "Weaver v. Trustees Wabash & Erie Canal, etc.,^ says : "An ex- press trust is simply a trust created by the direct and positive acts of the parties, by some writing, deed, or will." Dixon, C. J., in Bobbins v. Deverill," says the plaintiif in that case " is not the trustee of an express trust, because no such trust appears from the assignment, and none is shown to exist between himself and his co-partners by virtue of any other instrument. In order to con- stitute a trustee of an express trust, as I understand the statute, .there must be some express agreement to that effect, or some- thing which in law is equivalent to such an agreement. The case of factors and mercantile agents may or may not constitute an exception under the custom of merchants,* but in every other case the trust must, I think, be expressed by some agreement of the parties — not necessarily, perhaps, in writing, but either writ- ten or verbal, according to the nature of the transaction." The INew York Court of Appeals ^ defines express trusts as follows : ■" Express trusts, at least after the adoption of the Eevised Stat- utes, were defined to be trusts created by the direct and positive acts of the parties, by some writing, or deed, or will." Courts 1 4 Com. 309, 310. 2 28 Ind. 112. 3 20 Wis. 150. * Grinnell v. Schmidt, 2 Sandf. 706. The reference to G-rinnell v. Schmidt by the learned judge is to a case that arose in New York in 1850, after the adoption of the first clause of the section under consideration, and before the addition of the provis- ion including those with ■whom, or in whose name, a contract was made for the bene- fit of another. In that case the plaintift's had purchased and shipped a cargo in their own names, but really were acting for other-;, and the action was to recover the pro- ceeds of the cargo. In common-law practice, such agents always prosecuted in their •own name. " The contract was made by them in their own name, the corn was pur- . chased and shipped by them, and they were personally liable for the freight." The plaintiffs had a right to receive the money and discharge the claim, and would have if their principals had been made parties. A verdict and judgment had been obtained, and the court refused to open it to require other parties to be brought in — a very sensible conclusion ; but still it is diflBcult to see how the plaintiifs could be called i;rustees of an express trust. s Considerant v. Brisbane, 22 N. Y. 389. 65 § 54 OF THE ACTION. [PAUT I. have not been careful to distinguish between trustees of an ex- press trust, as the term is known to the law, and those with whom, or in whose name, agreements are made for the benefit of others ; nor is it practically necessary, unless for greater pre- cision in distinguishing trustees proper from other agents. Ex- press trusts are usually created concerning the realty, when they must be evidenced by a writing ; but the statute of frauds does not apply to trusts concerning personalty or choses in action. Certain promissory notes payable to order were indorsed to the plaintifi", with the express understanding that he should hold and collect the same for the benefit of, and as trustee for, his own firm and several other parties named. He was allowed to sue in his own name as trustee.^ So when he holds a security to b^ collected and applied in payment of a debt due from himself.^ The general assignee of choses in action for the benefit of cred- itors is a trustee of an express trust.' The most common in- stances of express trusts are where property is conveyed to trustees to hold for the separate use of married women, as is customary in those states that have not passed the Married Woman's Acts, so called ; or to hold and apply the proceeds for the benefit of infants, or other persons, to whom a grantor or testator is unwilling to give possession ; or to hold in trust to secure a debt due another, with or without power of sale. When the trust is so declared, it is, of course, express. In an ordinary deed of trust to secure a debt, with power of sale, the trustee, upon sale at auction under the power, is the proper party plaint- ifi" to recover the purchase-money;* also, where one had con- veyed personal property to trustees to the use of himself and ' Clark V. Titoomb, 42 Barb. 122. Although he would have had a right to sue as indorsee, according to the prevailing view, as shown in the next but one preceding section. 2 Q-ardinier v. Kellogg, 14 "Wis. 605. ' McClain v. "Weidenmeyer, 25 Mo. 364 ; Mellen v. Hamilton Kre Ins. Co., 17 N. T. 615 ; St. Anthony Mill Co. v. Vandall, 1 Minn. 246 ; Lewis v. Graham, 4 Abb. Pr. 106. In Palmer v. Smedley, 28 Barb. 468, the complaint — which alleged that the plaintiff ■was the assignee of the credits of Antioch College, was empowered to sue for, collect, etc. ; that defendant gave his note to the college, which was now in the plaintifl''3 hands as the property of the college, which was the lawful holder and owner — was held bad on demurrer. Qucere. * Gardner v. Armstrong, 31 Mo. 535 66 CH, IV.] PAETIES TO ACTIONS. § 56 wife for life, remainder to his children, if some of the property was wrongfully sold during their lives, it is held in Missouri that an action for its recovery, instituted after their death, must be in the name of the trustees, and that the children cannot sue.^ Nor, where it had been so conveyed for the use of the wife, and was afterwards sold by the husband, was the husband and wife permitted to recover it back in their own names. The suit should have been brought by the trustee,^ and such assignee in trust, when the wife is to have exclusive possession of the chattels, is the proper party to restraia an interference by a stranger.* § 55. 3. By Persons with whom, or In whose Name, a Con- tract is made for the Benefit of another. — Notwithstanding the attempt in New York, followed in most of the code states, to make the term ' ' trustees of an express trust ' ' cover this class of persons, yet they are not necessarily included. They hold a trust relation in regard to the contract, or its proceeds, yet the mere fact that it is made for the benefit of another, when no express trust has been otherwise created, does not make them such trustees. Practically, the distinction may be of little im- portance, as the same rule as to parties holds in either case, yet it is universally recognized in the law of trusts, and in reason- ing upon the subject, confusion arises from disregarding it. The cases are numerous in which this provision has been considered, and in noting a portion of them, I will speak, first, of those where the transaction is held not to be of such a nature as to authorize the action in the name of one who is not the real party in inter- est ; second, where the transaction is of such a nature as to so authorize it. § 56. 3. Continued — An Agent merely, not authorized to sue. — In Wisconsin the Supreme Court has declared that the assignee of a security to be collected and applied upon a debt due from the assignors to a firm of which the assignee was a 1 Gibbons v. Gentry, 20 Mo. 468. 2 Eichardson v. Means, 22 Mo. 495. In tbese cases it was clearly the duty of the trustee to protect the property; but it must not be inferred that the court intended to deny to the beneficiaries the right to enforce the trust, on his default. ' Keed v. Harris, 7 Kobt. 151. 67 § 57 OF THE ACTION. [PART I. member, cannot be collected in the name of the assignee.^ A mere agent cannot, in his own name, prosecute a suit to protect his principal ;* although, in dealing with the funds of his princi- pal, he may be decreed to hold in trust the property he may thus acquire, it is not an express trust, and he will not be authorized to sue unless the contract was made in his name. In a case in Indiana the suit was brought for rent, etc., by the agent, upon a written lease, expressed to be between the agent and the lessee ; but the lease afterwards saying, " I, A B, agent for C D, do agree to rent [the premises] to E F, for [a certain sum], and on failure on the part of E F to pay the rent as, etc., then it is hereby agi-eed between A B, landlord, and E F, tenant, that the contract is at end," signed by the tenant only. ZTeM, that the agent is not entitled to sue in his own name, as there was no express promise to pay the rent to him.' An ordinary com- mercial broker who does not buy or sell in his own name, and is not entitled to the possession and control of the goods,* is but a simple agent ; but if he guarantees the payment, he is said to have a del credere commission, in which case, or if he has ad- vanced money on the goods, he has an interest, and may sue. This was the doctrine before the Code,^ and is not changed. One who loans money part of which belongs to another, taking no written promise to repay, can sue upon an implied promise in his own name only for the part belonging to him. The indebtedness for the portion of the money belonging to the other person is to that person, and not to the agent.® § 57. 3. Continued — Cases where the Representative can sue in his own Name. — It is not disputed that an agent who > Bobbins v. Deverill, 20 "Wis. 150. Eeference is had, in section 54, to the opinion of Dixon, C. J., delivered in this case, and it should be noted that the authority of the opinion is weakened from the fact that the pleading, though held to be defective was sustained because not objected to by demurrer or answer. Strictly, then, the only point decided was that the objection came too late, although the opinion is very sug- gestive. ' Redfield v. Middleton, 7 Bosw. 649. ■'■ Kawlings v. Fuller, 31 Ind. 255. This comes very near being a contract between the agent and lessee. * Story on Ag., ? 28. 6 White V. Ohouteau, 10 Barb. 202. » Swift t. Swift, 46 Cal. 266. 68 CH. IV. J PARTIES TO ACTIONS. § 57 makes a contract in his own name, without disclosing the name of his principal, comes within the provision of the statute, and may sue in his own name, or in that of his principal. ^ The common case that arises in business transactions is wliere an agent becomes the payee of a promissory note or a bill of ex- change, in payment of a debt due another, or where the consid- eration otherwise springs from another ; in such case it is every- where conceded that, as at common law, he may bring an action in his own name. Mercantile agents, and factors doing business in their own names, though for others, come within the provisions of this clause.^ It has been doubted whether, upon a contract with an agent, where the name of the principal is disclosed, the agent can bring an action in his own name. But this question has been decided in the affirmative in several apparently well- considered cases. One arose in New York,^ when the promise had been made to the plaintiff as executive agent of a foreign company, naming it ; and it had been held in the Supreme Court, at general term, that, although the plaintiff's name was contained in the contract, inasmuch as his representative character was designated, the promise, in judgment of law, was made to the principal, and not to the agent. But the Court of Appeals held that the old rule was not changed ; that to limit the requirement that actions should be brought in the name of the real party in interest, it was expressly provided that those with whom, or in whose name, a contract is made for the benefit of another shall be considered so far a trustee as to authorize an action in his name, whether his representative character be disclosed or not ; and to enable him thus to sue, it does not matter whether the promise be made to him as agent for the party in interest or in trust for such party. In another case a deputy sheriff had taken an indemnity bond, payable to the sheriff himself, but to in- demnify the latter and all others who should assist him in the 1 Morgan v. Eeid, 7 ATdTj. Pr. 215 ; St. John v. Griffith, 2 Abb. Pr. 198 ; Eriekson v. Compton, 6 How. Pr. 471. As a lease signed "A, as agent of the owner." Morgan v. Beid, supra. 2 G-rinnell v. Schmidt, 2 Sandf. 706. This case was decided before the clause under consideration was added to the statute, and it was afterwards added to cover the case. Ante, I 54, note. » Considerant v. Brisbane, 22 N. Y. 389. 69 § 57 OF THE ACTION. [PAET I. premises, and it was held that the sheriff was a proper party plaintiff in an action for the benefit of the deputy.^ In a case in Indiana the plaintiffs were a corporation, by the name of the Trustees of the Wabash & Erie Canal. An association or part- nership had been formed by persons interested in the navigation of the canal, for raising money to keep it in repair, and the ac- tion was against one of the subscribers to the fund. The mem- bers of the association had, by its articles, agreed that, upon failure to pay assessments, the plaintiffs, upon the request of the Executive* Committee of the association, should enforce the pay- ment thereof by suit in their corporate name, and hold the money collected in trust for the association. The subscription was pay- able to the Executive Committee, but to be enforced as above ; and the association had agreed with the plaintiffs, upon certain condi- tions, to put the canal in repair. It was held that the action was properly brought in the name of the plaintiffs.^ Where a note is made payable to one, but to hold in trust for others;^ or where one is the payee of a note given for land belonging to another, although the mortgage to secure it be given directly to the beneficiaries ; * or where the defendant promises to pay to an agent of a public institution for its endowment ; ^ or where one becomes the obligee of a bond for his own use and the use of another ; ^ or where one had entered into an agreement with de- 1 Stillwell V. Hurlburt, 18 N. T. 374. In the opinion, Harris, J., said that the plaint- iff became a "trustee of an express trust." He could not have intended to use the term " express trust" in its ordinary sense, but only as enlarged' to include those in whose name a contract is made for the benefit of another. 2 Weaver v. "Wabash & Brie Canal, 28 Ind. 112. The court, inits opinion per Elliot, J., after defining an express trust as simply a trust created by the direct and positive acts of the parties by some writing, or deed or will, according to the language used in Considerant v. Brisbane, speaks of the provision that the term shall be construed as including one with whom, or in whose name, a contract is made for the benefit of another, as enlarging its scope so as to include the obligees in such contracts. It does not clearly appear whether the court intended to call the plaintiffs express trustees or parties to the contract, or parties having an interest. Its reasoning points in each di- rection ; but, in conclusion, the subscription to the fund is held, in effect, to be an in- ducement to, and to form a part of, the contract between the trustees and the associ- ation for repairing and using the canal, and in which they have an interest. » Scantliu v. Allison, 12 Kan. 85. * Ord». McKeo, 5 Gal. 515. " Winters v. Rush, 34 Gal. 136. « Cheltenham Fire Brick Go. v. Cook, 44 Mo. 29. 70 CH. rv.] PARTIES TO ACTIONS. § 58 cedent, by which the latter had promised him that his daughter shall receive certain property by will ; ^ or where one who is an agent for the sale of mowing-machines sells on commission in his own name ; * or where a partner contracts in his own name, but for the benefit of his firm ; ^ or where the nominal proprietor of a private bank does the business in his own name ;* or where an auctioneer sells in his own name^ — in all these cases the agent is authorized to bring an action in his own name. § 58. May the Beneficiary also sue? — Express trusts are usually created for the purpose of depriving the beneficiary of any control over the property or fund, while, at the same time, he enjoys the benefits derived from, or the proceeds of, its use. This is the case with trusts for married women, usually created by marriage settlements, for insane or profligate children, for charities, etc. And so with assignments in trust for the liquida- tion of debts. In these cases, if the beneficiary should be allowed to bring actions generally in respect to the property, the object of the trust might be defeated. The possession and control are given to the trustee for a supposed good reason, and the design of the donor or testator is to keep it out of the direct control of the beneficiary. In such cases, the only action that can be brought by him is against the trustee, to enforce the trust, to compel him to perform his duty, although, if the beneficiary is in the actual and rightful enjoyment and possession of the trust property, he or she should, upon principle, be allowed to sue for a disturbance of such possession — as, for a trespass. In the case, however, of contracts made for the benefit of others, where there is no express trust, a difierent rule prevails. "It is no longer absolutely necessary that the party to whom the promise is made shall be the plaintiff on the record in an action to enforce it. That is to say, if the promise is made for the benefit of another, who is the real party in interest, the latter may sue, 1 Wright V. Tinsley, 30 Mo. 389. » Davis V. Keynolds, 48 How. Pr. 210. " Taylor v. Steamboat, 20 Mo. 254. * Burbank v. Beach, 15 Barb. 326. ' Bogar V. O'Keagan, 1 B. D. Smith, 590. 71 § 59 OF THE ACTION. [PABT I. though the promise is made to an agent or trustee ; or, in the case last supposed, the agent or trustee, or person in whose name a contract is made for the beneiit of another, may sue without joining the party for whose benefit the suit is prose- cuted ; " ^ and this is the general holding where the question has been raised.^ The right of either party to sue — the one as the person to whom the promise was made, and the other as the real party in interest — cannot be denied unless there is an ex- press trust, and something in its nature, or in the relation of th6 trustee and beneficiary, that would forbid an intermeddling by the latter.^ § 59. The Extent of tlie Change made by the Code. — We can only understand the full force of the statute by noting the law in respect to parties to this class of contracts as it existed before the Code. As we have already seen, the promisee or obligee of a contract, with or without description of his agency, was the legal holder of the paper, and could sue in his own name.* He not only had the power, but, ordinarily, was bound to do so ; for, unless the contract was in the form of negotiable paper, it could not, at common law, be transferred to the principal. And ' Dillon, J., in Eice v. Savery, 22 Iowa, 471. ' Meyer v. Lowell, 44 Mo. 328 ; Plannagan v. Hutchinson, 47 Mo. 237 ; Union India Eubber Co. v. Tomlinsou, 1 E. D. Smith, 364 ; Erickson v. Compton, 6 How. Pr. 471 ; Lawrence v. Fox, 20 N. T. 268 ; Secor v. Lord. 3 Keyes, 525. A distinction in this regard was made at common law between simple contracts and those under seal, but that distinction is no longer recognized, and one for whose benefit a sealed instrument is executed may sue upon it. Rogers u. Gossnell, 51 Mo. 466 ; Van Schaick v. Third Avenue K. Co., 38 N". Y. 346 ; Eicard v. Sanderson, 41 N. T. 179 ; Coster v. Mayor, 43 N. T. 399. ' The right of the person for whose use a contract has been made to enforce it in his own name has not the same basis as the right of a beneficiary to prosecute the trustee for the enforcement of the trust. The latter could formerly be done only in a court of equity ; now, by the ordinary action. But the remedy is the same as before. Thus, where a trustee has purchased property at his own sale, it is, as before, a con- structive fraud, and the beneficiaries may at any time apply to the court to have the sale set aside, and for a resale. Hubbell v. Medbury, 53 N. T. 98. And, by way of argument, the Supreme Court of California, in Tyler v. Houghton, 25 Cal. 29, lays it down as an undisputed proposition, that where a trustee fails in his duty to protect the property of his beneficiary from waste, or trespass, or ouster, the latter may bring an action to compel him to do so. * Buffum V. Chadwick, 8 Mass. 103 ; Harp v. Osgood, 2 Hill, 216 ; Sargent v. Morris, 3 Barn. & Aid. 277 ; Story on Ag., J 401. 72 CH. IV. J PARTIES TO ACTIONS. § 59 if the agent were forbidden to sue in his own name, it could not be enforced at law.^ The obligation thus to sue no longer exists ; for, by adopting the I'ule in equit}^ practice, that actions should be brought in the name of the real party in interest, the distinction, so far as concerns parties, between commercial paper and such choses in action as were before transferable, but not negotiable under the law-merchant, is abolished. The assignee, as well as indorsee, may sue in his own name, and the one who is the real owner of a paper, even without indorsement or assignment, may thus sue under the Code. But there is a large class of agencies where the business is done in the name of the agent, and where the agent has an interest and special property in the subject- matter of the agency — as, a factor, a broker with a del credere commission, or an auctioneer — where the agent was always per- mitted or required to sue at law, and where a different rule would involve great inconvenience. As regards auctioneers, the New York Court of Appeals, in an action that was prosecuted under the common-law procedure, says: "An auctioneer has such a special property or interest in the subject-matter of the sale that he may sue in his own name, unless the principal or real owner elect to bring the action in his name. Chitty on Con. 185. And it is not necessary to prove that he has a special property or interest, for that flows, as a matter of course, from his position as an auctioneer ; and it is only where a party acts as a mere agent or servant that a special beneficial interest must be proved to maintain an action, or may be disproved to defeat it."^ The ' Harp V. Osgood, 2 Hill, 216. 2 Minturn v. Main, 3 Seld. 220. In Buckbee u. Brown, 21 "Wend. 110, Justice Cowen, after having shown that the plaintiff in the case at bar was but an agent doing business in the name of his principal, and that, consequently, he could not sue in his own name, proceeds to give a large class of cases where an agent would be thus authorized to sue. Says this very learned judge : "It is not necessary to deny that an express contract to pay A for the use of B, on a consideration moving from B, will raise such a legal interest, by waj' of trust, as will maintain an action in A's name, though even that has been doubted, as will be seen by what Eyre, C. J., said in Piggott V. Thompson, 3 Bos. & Pul. 147. Nor is it necessary to deny the right of factors, commission merchants, carriers, auctioneers, masters of vessels, etc., to maintain actions either for tortiously interfering with their possession or to recover prices, or for moneys falling due to them in various ways in respect to their interest, duties, liens, or liabilities. They are bailees, and have a special property. Their right to sue in their own names will be found mainly to arise out of their legal inter- 73 § 59 OF THE ACTION. [PAET I. other instances where the action at common law could be brought in the name of the agent sufficiently appear in the note. It is thus seen that the exception under consideration to the new and imperative requirement that the action must be brought in the name of the real party in interest was chiefly intended to cover this class of cases. Without the exception, it might well be doubted whether the real owner might not be required to bring the action upon contracts made on his account and in his interest, est. They are not naked agents. A factor or broker selling goods under a del credere commission is a yaasi-owner. Neither the principal nor purchaser ordinarily think of looking beyond him. Morris v. Cleasby, 1 Mau. & Sel. 576, 580 ; Sadler v. Leigh, 4 Camp. 195. An auctioneer sold the goods on the premises of his principal ; the purchaser, by a trick, got them away without payment. The auctioneer paid the price to his principal and sued the purchaser in his own name for goods sold, and the action was held to lie. Lord Loughborough gave the reason ' that the auctioneer has the possession, coupled with an interest, in goods which he is employed to sell— not a bare custody, like a servant or shopman.' Heath, J., added, if they should be stolen, he might bring trespass. "Wilson, J., added another ground, that of estoppel; the defendant, having bought of the plaintiff having custody, should not gainsay his right to recover as vendor. Williams v. Millington, 1 H. Bla. 81. See, also, Coppin o. Walker, 2 Marsh. 497 ; 7 Taun. 237. Similar reasons will be found to run through those cases where actions have been sustained by the various bailees I h^ve mentioned. A master has a special property in a vessel, and may, therefore, declare for freight of goods as carried in his vessel, although he be not the owner. Shields v. Davis, 6 Taun. 65. Another instance is Atkins v. Amber, 2 Esp. 493. The plaintiff was there a pledgee of the goods which he had sold as such, and was suing for the price. See Brown v. Hodgson, 4 Taun. 188, as to carrier. A broker in a matter of insurance, especially if he act under a del credere commission, is also regarded as principal, and may sue or be sued in his own name. Grove v. Dubois, 1 Term Eep. 112. This case is treated by a learned writer as an exception, implied from the course of trade. Ham. on Parties, 11. If they have no commission del credere, they may maintain an action in respect to their lien, if the contract be made in their own names, though on account of their principals. Parker v. Beasley, 2 Mau. & Sel. 423. In this case they claimed by virtue of n policy running to them by name, on account of their principals. Bailey, J., said that 'by suffering their names to be inserted in the policies, the underwriter has agreed that they shall be considered as principals, if they have an interest.' " In this case a wharfinger had sued in his own name, but was held to be a mere agent, collecting for the owners. In White v. Chouteau, 10 Barb. 202, it was held that an ordinary merchandise broker who does business in the name of his principal has no right to sue in his own name ; the right to do so is extended to those only who sell under a del credere commission, or to brokers or factors who have made advances upon the goods sold by them, or to auctioneers, or persons having some special property or interest in the subject-matter of the agreement ; and in Dows V. Cary, 12 Barb. 310, the consignefe or indorsee of a bill of lading was not allowed thus to sue ; the action should be by the shipper, or, if he be an agent merely, by the owner, 74 CH. IV.] PAETIE3 TO ACTIONS. § 61 notwithstanding the comparatively slight interest of a bailee.^ To remove this doubt we have the exception which covers the common-law cases which have been cited, and even goes further, for, by its language, any contract made with, and in the name of, the agent may be enforced by the agent, and though he be a mere agent without an interest, it does not matter, provided the promise be made to him in his name. At common law he might be also required to have some interest in the agreement, or some personal responsibility in regard to its subject-matter, but no such condition is named in the statute. § 60. 4. By Persons expressly authorized by Statute. — No attempt will be made to enumerate the classes of persons au- thorized by the statutes of the several states to sue in their own name, although for the benefit of others, nor to specify the numerous cases where the action is required to be in the name of the state, or some municipal body. The pleader will, of ne- cessity, consult the statute of his own state, and he will find that provision is made as to who should be the obligee in bonds of public officers, and in bonds of those who are placed in fiduciary j-elations by public authorities — as, executors, adminis- trators, guardians, etc. ; and sometimes persons are designated who may sue on behalf of voluntary associations and joint-stock companies. § 61. Joinder of Plaintiffs — The general Rule. — The statutory provisions in regard to the joinder of plaintiffs are (1) permissive and (2) imperative. The following is the first: "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may join as plaint- iffs, except as otherwise provided," ^ etc. This provision is fol- * In Grinnell v. Schmidt, 2 Sandf. 706, which arose under the Code, but before the addition of the clause regarding those in whose names contracts are made for the benefit of others, the court labored to bring the relation of commercial agents and factors within the category of trustees of an express trust, evidently embarrassed with the great inconvenience of no longer permitting this class of agents to sue in their own name. 2 Code Proc. N. T., ? 117; Code Civ. Proc. N. T. 1876, g 446; Code Proc. Ohio, 2 34; Code Civ. Proc. Ind., J 70; Bullitt's Code Ky., | 22; Gantt's Dig. Ark., g 4475; Wag. Stat. Mo. 1000, 2 4; Code Iowa 1878, 2 2545; Stat. Wis. 1871, 75 § 61 OF THE ACTION. [PART I. lowed by another, to wit, that " parties who are united in interest must be joined as plaintiffs or defendants ; but, if the consent of any one who should have joined as plaintiff cannot be obtained, he may be made defendant, the reason thereof being stated in the complaint ' ' [petition ] . These two provisions are at once recognized by equity pleaders as familiar acquaintances. But though drawn from equity practice, it must not be hence inferred that they are applicable only to actions for equitable relief ; for, as we have seen, and shall all along see, the chief changes made by the Code consist in applying to the pleadings in all actions rules formerly recognized only in courts of equity.^ The first clause in the provision secondly quoted, to wit, that parties who are united in interest — that is, those who have the same or a joint interest — must be joined as plaintiffs or defendants, was a rule in all courts ; but if one or more of those who had joint rights should refuse their consent to be joined as plaintiffs, there was no remedy in the courts of law. Nor, in courts of law, could par- ties having an interest in the subject of the action and in the remedy be united as plaintiffs, unless that interest was joint. I recognize these rules from the equity practice as now made uni- versal wherever, from the nature of the grievance or of the relief which is sought, they are applicable, and without regard to the former classification of actions. Yet from the fact that they are treated by one or two of the courts as only pertaining to pro- ceedings still called equitable, and that they are seldom in fact appealed to as having made any change in our system in mere money demands, I will dismiss their further consideration for the present, and will again consider them more fully, and especially with reference to their scope in connection with other so-called equitable rules .^ ch. 122, J 18; Code Civ. Proc. Kan., I 37; Code Civ. Proc. Neb., ? 37; Code Civ. Proe. Cal. 1874, ? 378; Comp. Laws Nev. 1873, § 1075; Code Civ. Proc. Oreg., g 380; Code Civ. Proc. N. C, § 60; Code Civ. Proc. S. C, § 140; Code Proc. Pla., g 68; Code Civ. Proc. Col., ? 11. ' Kentucky, Arkansas, Iowa, and Oregon preserve the distinctions between actions at law and suits in equity; and in Oregon the provisions quoted in the text are expressly applied to equitable actions only. It may be necessary in those states, especially in Oregon, to modify somewhat the view taken in this section, and in chapter 5, concerning parties plaintiff in equitable actions. 2 Post, cb. 5, 22 73-80. 76 CH. IV.] PARTIES TO ACTIONS. § 62 § 62. Joinder of Plaintiffs in Common-law Pi-ocee lings. — As stated in the last section, the requirement to unite as plaintiffs or defendants all who are united in interest is imperative, and this is equivalent to the rule recognized in common-law plead- ings, that joint obligees and those who would enforce a joint right must sue jointly.' Unless modified by that part of the section authorizing one who has a joint right, but where those who are united with him in interest refuse to unite in the action, to make them defendants, the rule remains as before the adoption of the Code ; and whether it is so modified will be hereafter considered.^ The scope of this requirement to thus unite as plaintiffs or defendants is given by a New York judge, ^ as fol- lows : ' ' We apprehend this union of interest refers to such cases as joint tenants, co-trustees, partners, joint owners, or joint contractors simply, where, in fact, a separate judgment in favor of one of them would not be proper in the case stated in the complaint. * * * Qn a demurrer to the complaint, we apprehend that the test of unity of interest intended in the 119th section is that joint connection with, or relation to, the subject- matter which, by the established practice of the common-law courts, will preclude a separate action." In the history of our jurisprudence we find that those who had joint rights as joint obligees were treated, with reference to their right, as were joint tenants in the realty. There was no several interest ; each one controlled the whole, and the right, being single, survived — not to the personal rei^resentative of any deceased coobligee, but to the survivoi's and the representative of the last survivor. There being no several interest, the whole right must be vindi- cated at once, and this could not be done without the presence, and only on the request, of all interested in that right — that is, all the living joint obligees. Although one of the claimants or obligees has, in theory, a right to the whole, yet every other claimant has the same right. A judgment in favor of one for the whole claim would deprive the others of their right ; a judgment for a part would be inconsistent with the idea of a joint right ; • 1 Chitty's PI. 8, 9. 2 Cli. 5, §2 77-80. 77 § 62 OF THE ACTION. [PART I. hence all must recover, and jointly, or none. The adjustment among themselves required a proceeding with which the counts of law had nothing to do ; they recognized the joint interest as one interest, with survivorship and other incidents of joint tenancies in real property.^ As, in the progress of the law, the individual interest of each obligee came to be recognized, the theory of a joint right, in the technical sense of the term, became but a fiction. The joint right, as a fact, ceased, and it should have been treated as merged into — as having become but a right in common — analogous to tenancies in common in the realty. I do not, of course, refer to the case of trustees where the legal interest is joint in fact and the survivorship is real, but only to those contracts where each obligee has an actual interest in the obligation for his own use, and where, notwithstanding upon death the right of action survived at law to his coobligees, they are required to account for that interest to his personal repre- sentatives. Neither do I refer to obligations to partners as such. No partner has a private personal interest in any particular con- tract — only in the general fund. Death dissolves the partner- ship, and the survivors administer the assets. The right to sue necessarily survives to them, but only in trust for themselves and the estate of the deceased partner. His representative can have no interest in any particular contract, but only in the fund which remains after the partnership affairs have been all adjusted. But as to the obligees in other contracts, and as to other joint rights, where there is no intention that the whole right or interest should go to the survivor, or where the law creates no survivor- ship in fact, as it does in some instances as to obligations to hus- band and wife, there is no such joint interest as to justify the doctrine of survivorship, even in bringing the action, or to pre- vent the personal representative from protecting the interest of decedent by joining with the survivor. Notwithstanding the law came to recognize — and, in an imperfect way, to protect — the > Littleton (§ 282), in speaking of survivorship in joint tenancies, says: "Inthesame manner it is of debts and duties, etc. ; for if an obligation be made to many for one debt, he which surviveth shall have the whole debt or diitj'. And so it is of other covenants and contracts." The first departure from this rule seems to have been in favor of merchants, according to the custom of merchants, which became part of the common law. See Co. Lit. 182 a. 78 CH. IV. J PARTIES TO ACTIONS. § 63 individual right of each joint obligee, yet in the courts of law the rule as to parties remained inflexible. The representative of the deceased coobligee was not permitted to unite with the sur- vivor, and there was no way by which a party to a joint right could enforce it, either to the entirety or to the extent of his interest, without the cooperation of all who are joined with him in interest. § 63. "Whether the Kight is joint or several. — The general rules are : (1) that a right given to two or more persons, without words of severance, create a joint, and not a several, right ; but (2) if a contract, though made with more than one, contains a stipulation to pay a certain sum to each promisee individually, or to do an act for the benefit of each one, it creates a several right. When (3) an obligation is given to two or more jointly and severally, or is entered into to pay a certain sum to them or either of them, it creates a joint and several right, to be enforced by all the obligors jointly, or by any one of them. The action, however, must be by the whole, or by one only, and cannot be brought bj'^ two or more jointly, if less than the whole. I know nothing in the Code, as generally adopted, that so far changes the old law ; but there is (4) another common-law rule pertaining to this subject which is contrary to the leading provision of the Code, which requires, with certain named exceptions, that the action be brought in the name of the real party in interest. I refer to those cases where the obligation is to more than one — that is, where the contract seems to be made to the obligors jointly, but the money to be paid to, or the act to be done for the benefit of, each one is specified. This is spoken of as a joint interest be- cause, by the form of the agreement, the obligation is to them jointly, although there is no joint interest in the benefit to be derived from it ; and Mr. Parsons justly calls it a strictly legal and technical interest.^ Under the former rule, requiring that the action be brought in the name of the party or parties having the legal interest — that is, those to whom the promise is made, and from whom the consideration springs — it may be properly said that all should sue, because the promise was made to all ; 1 Pars, on Con. 14. 79 § 64 or THE ACTION. [pART I. but there is no such rule now in force, and a promisee for the benefit of another can sue in his own name only by virtue of one of the exceptions to the general rule. As we have seen, those to whom !i promise has been made for the benefit of another may bring an action in their own names by virtue of their trust relation, but the person in whose interest the agreement was entered into may, at his election, himself sue ;^ and in the case under consideration, each person entitled to the benefit of the agreement should be permitted to bring an action for his individual interest. The second class of cases spoken of, to wit, where the obligation is to more than one, but the stipulation is to pay a certain sum to each, is closely allied to the latter ; but the right was always treated as several. Although the obligor may bind himself to A, B, and C, but if the obligation is to pay A a cer- tain sum, or do for him a certain thing, and to pay B a certain sum, or do for him a certain other thing, and so with C, there is no joint right, and each must sue separately for what is due himself. ^ § 64. Assignment of joint Rights. — The assignability of joint interests and rights was always recognized in equity, although, as with all choses in action except negotiable instru- ments, the legal interest did not pass. Under the new system, however, the whole interest of the assignor passes in the one case as in the other. Before the adoption of the Code, the stat- utes of some of the states had authorized the assignment of certain choses in action otlier than negotiable instruments, and 1 Ante, I 58. ■' For a discussion of the subject of this section, see Parsons on Contracts, volume 1, book 1, chapter 2, section 1, with the notes and cases referred to ; and, less fully, Chitty on Pleadings, volume 1, pages 10, 11. As an illustration of the proposition that the right may be several, though the obligation be in form joint, Mr. Chitty cites an indenture between A, B, and C, by which A demises to B Blackacre, and to C Whiteacre, and covenants with them jointly that he is the owner of the closes. Each should sue separately in respect to his distinct interest, and they cannot sue jointly, for they have no joint or entire interest in the same subject-matter. And if a party covenant with A and B to pay them $10 each, or an annuity to each, although the covenant be in its terms joint, yet the distinct interest of each in a separate subject- matter shall attract to each covenanter an exclusive right of action in regard to his own particular damage. 80 CH. IV. ] PAETIES TO ACTIONS. § 65 SO as to pass the legal title ; and, hence, authorized the assignee to sue in his own name. In Indiana it was held, under the old system, that this authority did not enable one of two joint obli- gees of a bond to so separately assign his interest that his assignee and the other obligee could become its legal holders.^ Under the Missouri statute, however, one of two payees of a non-negotiable note was held to be able to so assign to his co-payee as to make him the legal holder, and enable him to sue in his own nam6.^ This is no longer a practical question, for it cannot be doubted that, under the Code, one or more possessing with others a joint right may assign their interest in that right, either to a stranger or to the other holder or holders. We have seen^ that the old idea of a joint right has become obsolete; that each obligee and promisee has an individual interest which the law will protect, and which descends to his personal repre- sentative. That interest is necessarily assignable, and, the stat- ute requiring the action to be prosecuted in the name of the real party in interest, the assignee should join his assignor's cooblisee. This view is taken in Indiana, where the assignee of one of two payees of a promissory note was held to be the real party in interest with the other payee.* § 65. Parties in partial Assignments. — It sometimes hap- pens that the owner of a single demand assigns part of the claim, still retaining a portion. Unless the debtor has consented to the assignment, he will not be liable in two actions, as splitting of 1 Boyd V. Holmes, 1 Ind. 480. * Smith V. Oldham, 5 Mo. 483. ' Ante, i 62. * Groves v. Ruby and Yaryan, 24 Ind. 418. The action was brought below by Ruby and Yaryan, upon a promissory note payable to Cramer and Ruby, Cramer having assigned his half of the note to Yaryan. The parties were objected to, and the following is a clear and concise expression of the conclusion to which the appel- late court arrived : " It is urged that a part of a written contract cannot be assigned. This may be true at law, but not in equity. Ward v. Wallace, ante, p. 226 ; 2 Story's Eq. Jur., I 1014, and the authorities there cited. The assignment vested in Yaryan, Cramer's interest in the note in equity. Yaryan thereby became the real party in interest with his co-plaintiff, and they were the proper parties." The assignment of a joint right should not be confounded with a partial assignment of a single obligation, where, as concerns joinder of plaintiffs, there has been some difference of opinion. See next section. 81 § 65 OF THE ACTION. [PAKT I. causes of action is not permitted.* In whose name, then, shall the demand be prosecuted? By the old law, such partial assign- ment passed no legal interest, and an action at law was neces- sarily in the name of the original holder.^ This idea seems to have been adhered to in several decisions under the Code.^ But it is plain that the partial assignee has an interest, which should not be subject to the caprice of the assignor ; it is therefore said that he has an equitable interest, and must file a petition in equity making the assignor and debtor parties. 'This distinction was very well under the old system, but now all distinctions between legal and equitable forms of action are abolished. The debtor should not be subject to two actions upon one demand, and that is the reason given for not allowing causes of action to be divided ; but, by an action analogous to this petition in equity, the whole demand can be adjusted in one action. A later case in California sustains the right of the assignee to bring his action.* ' See, post, \ 118. • EUedge Story's Eq. PI., ? 76 6. ^ Ibid., § 76 c. See note 2 to this section for a valuable collection of statements by distinguished cbancellors and others in regard to parties. » Williams v. Bankhead, 19 Wall. 573. * Ante, § 61. = Code Proc N. T., ? 119 ; Code Civ. Proc. 1876, § 448 ; Code Proc. Ohio, i 36 ; Code Civ. Proc. Ind., § 19; Stat. Wis. 1871, ch. 122, I 20; Bullitt's Code Kj., \ 24; 124 CH. VIII. J PAETIES TO ACTIONS. § 97 tains to the joinder upon either side of those whose interest is the same, and is imperative in its requirement, and applies to every class of actions of which such an interest can be predicated. The liberty to make defendants of those who are unwilling to unite as plaintiffs was peculiar to the equity practice, but the right is now made a general one,^ and such parties are rather plaintiffs than defendants, though nominally the hitter. The several statutes give, immediately preceding the section last quoted, another general rule as to defendants, which is supposed to em- body the substance of the old equity rule. "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein." * This language does not in terms distinguish between parties without whom no effective remedy can be given — that is, parties who are indispensable — and those who should be brought before the court in order that there may be a complete settlement of the questions involved in the controversy, or pertaining to the subject-matter of the suit. The latter are proper parties. If omitted, their interests are not affected ; the judgment may be good as far as it goes, or as between the actual parties, but it leaves some things unsettled. Courts may order them to be made parties — should, ordinarily, refuse to proceed without them; yet, unless their interests are affected by the judgment, it is not error to do so. The phrase " may be made defendant " should be treated as imperative or directory, according to the nature of the interest. The rule thus embodied in the Code is called equi- table, as derived from the equity practice, and because it will Dig. Ark. 1874, ? 4477; Wag. Stat. Mo. 1001, § 6; Code Iowa 1873, ? 2548; Code Civ. Proc. Kan., ? 37 ; Code Civ. Proc. Neb., § 42 ; Code Civ. Proc. Cal. 1874, § 382 ; Comp. Laws Nev. 1873, § 1077; Code Civ. Proc. N. 0., ? 62; Code Proc. S. C, § 142; Code Proc. Pla., g 70 ; Code Civ. Proc. Col., § 13. ' Reasons have been heretofore given for treating this permission as applicable to causes of action heretofore called legal, as well as those called equitable. Ante, 2§ 77,78. ' ' In New York, California, North Carolina, and South Carolina the following clause is added: "And in an action to recover possession of real estate, the landlord and tenant thereof may be joined as defendants ; and any person claiming title or a right of possession to real estate may be made a party plaintiff or defendant, as the case may require, to any such action." 125 § 98 OF THE ACTION. [PAET I. more frequently be appealed to in proceedings formerly called equitable. Actions for the recovery of money or specific prop- erty are more simple ; unless in exceptional cases, those only will be sued against whom a judgment is sought for the money or the restitution of the property ; while in other proceedings, where all the equities clustering around the case, or the rights that attach to the property, can be adjusted, every interested person should be brought in, that everything may be settled. But it must not be hence inferred that the rule is not a general one, and that it has made no change in actions for the recovery of money or specific property. §98. Mortgages — Actions concerning them. — "A mort- gage is a conveyance of an estate, by way of pledge, for the security of a debt, and to become void on payment of it. The legal ownership is vested in the creditor, but in equity the mort- gageor remains the actual owner until he is debarred by his own default or by judicial decree." ' The debtor, being but the equi- table owner, can only enforce his right to redeem by a proceeding of an equitable nature ; and, on the other hand, the creditor is compelled to resort to a similar action if he would cut ofi" that right. This right or title of the debtor is commonly called his equity of redemption. Besides mortgages proper, a creditor may have a lien upon property which leaves the title in the debtor — as, a vendor's lien, or lien by deposit of title deeds, or by an imperfect mortgage. They are sometimes called equitable mortgages, and rights in regard to them can be enforced only by an action for equitable relief. If there has been no transfer of the equity of redemption, or sale of the property to which the lien attaches, or sale of the debt, and when the parties to the transaction are all living, and the premises are affected by no other lien, there can be no difficulty in determining who should be made parties. But, these things not all concurring, it is im- portant to know who should come into, or be brought into, court, either to represent, or in addition to, the original parties to the transaction. And great confusion will be prevented by noting the difi'erence between necessary parties — that is, those » 4 Kent's Com. 136. 126 CH. VIII.] PARTIES TO ACTIONS. § 99 without whom no right can be enforced, and proper parties — that is, those whose presence may be dispensed with, but who have an interest in, or are connected with, the subject-matter of the action, which in such case remains unadjusted. The statute, as we have seen, provides for both necessary and proper parties. The first have, or claim, an interest adverse to the plaintiff; a liberal construction of the second clause will include all the par- ties treated in the equity rule given in section 96 as proper, but not indispensable. It is error to omit a necessary party ; while, if a proper party be omitted, the proceeding is but incomplete. § 99. Parties in Suits to redeem. — The legal title, being in the mortgagee, passes to his heirs. In an action to redeem, brought after his death, they must be made parties ; and inasmuch as the money to be paid by the mortgageor goes to the personal repre- sentatives of the deceased, they also are necessary defendants.^ No decree will be made unless they are there to take charge of the redemption fund. The heir of a mortgageor desiring to re- deem should ordinai'ily bring into court the personal representa- tives of his deceased ancestor, inasmuch as he may have a right to require that the debt be paid out of the personal assets of the estate ; ^ but if he has no such right, and the administrator will be in no way affected by his action, there is no reason for making him a party. The administrator of the mortgageor has himself a rio-ht to file a bill to redeem, if the property becomes neces- sary for the payment of debts.' If the mortgageor has sold his equity of redemption, the assignee, in seeking to redeem, should make him a party if he is to be in any way affected — as, where he has conveyed the estate free from incumbrances and is under ob- ligation Mmself to redeem ; otherwise, not.* Not only are the heir and assignee of the mortgageor entitled to redeem, but also a subsequent mortgagee. He is directly interested in removing all prior incumbrances, and a privity of estate has been created between him and all other parties. And the rule applies, not only to the holder of a second or third mortgage, but to a judg- 1 Story's Eq. PI., ? 188. » Ibid., 1 182. » MoGlotMin v. Hemery, 44 Mo. 350. * Story's Bq. PI., 2 183. 127 § 100 OF THE ACTION. [PAET I. ment-creditor, or to any one who may hold a lien upon, or who has a legal or equitable title to, the premises. His interest will authorize him to remove any incumbrance necessary to the pro- tection of his own rights and interests. In enforcing his rights by action, he should make parties of all to be affected by the de- cree — both the holder of the previous liens or incumbrances which he would remove, or their heirs and personal representatives if interested or affected, and those whose duty it may be to pay off any claim previously secured, or their heirs or personal repre- sentatives. A petition in such case may be more than to redeem — it may be to foreclose the former equities as well.^ The owner of the demand which has been secured, or which may be a lien, may have assigned it with the security, and there may have been many assignments. In such case, if there is no dispute as to the amount which may have been paid to any of the previous hold- ers, and the assignment is complete, the last assignee is the only necessary defendant ; but if an account is to be taken as to what has been received to intermediate holders, or if only a part has been assigned, all those to be affected are necessary parties.* These instances are all that will ordinarily arise, and for exceptional cases the reader is referred to works upon equity pleadings, in which the subject is treated more largely than is consistent with the plan of this work § 100. Parties In Suits to foreclose. — In a suit to foreclose the mortgagee's equity, whether for strict foreclosure or to en- force the lien by sale, the same general rule holds in respect to parties, making it proper to join all who are interested in the estate or the fund, and making it necessary to bring in all who are to be affected by the judgment. Thus, those interested in the equity of redemption — as, assignees, heirs, or devisees, and if the assignment be in trust, the beneficiaries — should be made de- fendants, that their equities. may be foreclosed or their interests protected.^ In regard to other incumbrancers, the holding is not uniform. A prior incumbrancer, if not a party, would not be 1 Story's Eq. PI., 2J 185, 188. 2 Ibid., II 189, 190. " It has been held not to be necessary to name the trustee, as Ms beneficiary pos- sesses the real interest ; but it is certainly proper to do so. Story's Bq. PI., ^ 193. 128 CH. VIII.] PAETIES TO ACTIONS. § 101 affected by a judgment, whether of strict foreclosure or of sale, for the property would still be subject to his lien. He is rather a proper than a necessary party, and the court would permit, or even require, him to be brought in, if the incumbrancer or the mortgageor could show any good reason therefor, as, v/hen there have been part payments, or a credit is claimed but not allowed, it might be important to ascertain the true amount due upon the first incumbrance. It may also be for their interest that an un- incumbered title to the property be made, and to that end that all grior incumbrances be discharged. We have just seen that not only the mortgageor, but the subsequent mortgagee, has a right to redeem all prior mortgages. If by thus redeeming them he would acquire a right to strict foreclosure, unless re- paid the amount advanced as well as his own demand, in such case, although he may not in fact redeem them, if he can show an interest in having the property sold and a complete title made, he should be permitted to take an order of sale, and that the incumbrances be paid in their proper order. Curtis, J., upon this subject, says:^ "We consider the true rule to be that, where it is the object of the bill to procure a sale of the laud, and the prior incumbrancer holds the legal title, and his debt is payable, it is proper to make him a party, in order that a sale may be made of the whole title. In this sense, and for this purpose, he maybe correctly said to be a necessary party — that is, necessary to such a decree. But it is in the power of the court to order a sale subject to the prior incumbrance — a power which it will exercise in fit cases. And where the prior incumbrancer is not subject to the jurisdiction of the court, or cannot be joined without defeating the jurisdiction, and the validity of the incum- brance is admitted, it is fit to dispense with bis being made a party." Mr. Kent says that the better practice js to make all other incumbrancers parties, whether prior or subsequent, in or- der to prevent a multiplicity of suits, and to make a perfect title. ^ § 101. Continued — Subsequent Incumbrancers, and others. — Subsequent incumbrancers should always be made parties ; > In Hagan v. "Walker, 14 How. 37. 2 4 Kent's Com. 184, 185. 129 § 101 OF THE ACTION. [PART I. otherwise, their rights will not be affected by the foreclosui'e.^ It has been said that subsequent incumbrancers are not indispen- sable parties, and this is true. The proceeding is not thereby void, but will conclude those who are parties to it ; and the pur- chaser at the sale will take the rights of the plaintiff as though his mortgage had been assigned to him without foreclosure.^ He also takes the estate of the mortgageor which he held at the date of the mortgage ; ' so that he becomes the assignee of the parties to the suit. The subsequent mortgagee, not having been made a party, may still redeem or foreclose, but he must redeem of the purchaser at the sale ; or, if he should sell under fore- closure, the sale would be subject to the rights of the purchaser. And yet the equity of the mortgageor is not entirely gone. He is still indebted to the subsequent mortgagee, and is under obli- gation to pay the debt. By paying this debt he is held to be- come the assignee of this mortgagee's right of redemption, and may redeem his estate by paying off the first incumbrance, not- withstanding the sale.* If a mortgage be given as collateral security for another mortgage, upon a bill to foreclose against the principal mortgageor, the plaintiff will be required to make the collateral mortgageor a party ; for he is interested in the ac- count, and has a right to redeem.* Judgment-creditors who have a lien upon the property, whether the judgment be prior or subsequent to the date of the mortgage, stand in the relation of other lien-holders, and should be made parties.' In Indiana, both prior and subsequent mortgagees have been spoken of as rather proper than necessary parties.'' A purchaser of the prop- erty before suit is there held to be a necessary party in an action to enforce a mechanic's lien.* 1 Anson o. Anson, 20 Iowa, 55 ; Newcomb v. Dewey, 27 Iowa, 381. " Subsequent incumbrancers are not bound, because their interests would, otherwise, be concluded without any opportunity to assert and protect them." Story's Eq. PI., g 193, and cases cited. 2 Vanderkemp v. Shelton, 11 Paige, 28. » Montgomery v. Middlemiss, 21 Cal. 103 ; Grattan v. Wiggins, 23 Cal. 16. * Goodman v. "White, 26 Conn. 817. » Story's Eq. PI., ? 194; Stokes v. Clendon, 3 Swanst. 150. 8 Kolleston v. Morton, 1 Dr. & "War. 171. ' Pattison v. Shaw, 6 Ind. 377 ; "Wright v. Bundy, 11 Ind. 398. * Holland v. Jones, 9 Ind. 495. 130 CH. VIII. J PARTIES TO ACTIONS. § 103 § 102. Continued — In Case of Death of, or Asslgntnent by, Mortgageor. — The assignees of the mortgageor are, of course, necessary defendants, and, in case of his death without assign- ment, so are his heirs ; for the equity of redemption, being an in- terest in the realty, descends like land.^ But it is held not to be necessary to join his personal representative unless some special interest can be shown, or a personal liability is sought to be en- forced,^ or the land — as in California — vests in such representa- tive for the purposes of administration.' In case of sale by the mortgageor, the same rules govern as in other cases. If the sale be absolute, if there is no personal liability on his part, and he has no interest in the accounting, it is improper to make him a party. But there is usually a personal obligation, and he is directly inter- ested in the accounting. If the sale were subject to the mortgage, he is interested in seeing that the security is so far realized as to leave no personal charge. If the sale were absolute, he is inter- ested in reducing the charge for which he may be responsible to his vendee. If the petition be for foreclosure merely, it is gen- erally held to be unnecessary to make him a party.* § 103. Continued — Other Interests. — The principle gov- erning the pleader in making parties has been so often indicated that, in proceedings to enforce liens, whether by mortgage or otherwise, he can hardly blunder. If it is for his interest to sell the property and make a complete title, " all persons interested in the estate at the time the suit is instituted to enforce the mort- gage, whether the purchasers, heirs, devisees, remainder-men, reversioners, or incumbrancers, should be made parties, or their 1 Story's Bq. PI., ? 196. 2 Ibid., II 175, 196. In a petition to redeem, presented by the heir, the ad- ministrator of the estate of the mortgageor, as well as that of the mortgagee, are necessary parties [ante, ^ 99) ; and Judge Story treats the practice of dispensing with the presence of the administrator of the mortgageor, in a petition to foreclose, as a departure from principle. Story's Bq. PI. 175. As the heir may look to the personal assets for the payment of the debt, the. personal representative would seem to be affected by the decree, and to make a complete settlement of the matter should, with the heir, be brought into court. 5 Harwood v. Mayre, 8 Cal. 580. ♦ Story's Bq. PI., J 197 ; Bigelow v. Bush, 6 Paige, 843 ; Delaplain v. Lewis, 19 Wis. 476 ; Stephens v. Muir, 8 Ind. 352. 131 § 105 OF THE ACTION. [PAET I. rights will not be affected. The same is true as to suits to en- force mechanic's liens." ^ In speaking of these different classes of persons who sliould be made parties, the court could have referred to those only over whose interests the court, by virtue of the mortgage or the lien, could exercise control ; for it is not to be supposed that if one should mortgage his life estate, the remainder-man or reversioner would have any interest in the fore- closure. § 104. Statutory Foreclosure. — There are enactments in the different states in regard to mortgages and their foreclosure, some of which prescribe the practice. So far as they vary from the equity practice in regard to parties — and some of them do ^ — their provisions must be conformed to in statutory fore- closures. The plaintiff, ordinarily, has his election whether to bring the statutory action, if a specific form of action be provided for by statute, or to sue under the Code,^ and in the latter case the equity rules in regard to parties still prevail. § 105. Where the Lilability is joint. — I have already con- sidered the rule requiring all who are united in interest to be joined as defendants, excepting in a few states named, and I again recur to the subject in this connection because of a modifi- cation of the rule as to joint contractors, in the courts of equity, which was unknown in the common-law courts. As we have seen,* upon death of any one under joint obligation, leaving a surviving coobligor or obligors, his personal representative could not be pursued ; and in the common-law courts an action could be prosecuted only against such survivor or survivors. The rule of law was that death discharged the obligation, charging it upon the survivor or survivors only. This rule of law was so positive, and, at the same time, so inequitable towards the survivor and also the creditor, as both to forbid and invite the interposition of ' Whitney v. Higgins, 10 Cal. 547, citing 4 Kent's Com. 185, and 3 Johns. Oh., 459. ' As in Missouri, where neither the incumbrancer nor the heir can be made parties unless upon their own motion. See Thayer v. Campbell, 9 Mo. 277 ; Hull v. Lyon, 27 Mo. 569 ; Perkins v. "Woods, 27 Mo. 547. ' Thayer v. Campbell, supra. * Ante, I 92. 132 CH. VIII. J PARTIES TO ACTIONS. § 105 the courts of equity. " Equity follows the law," and the chan- cellor had no power to directly set aside the rule of law, no more in respect to joint obligations than joint tenancies in the realty, merely because it was unjust. But if he could get jurisdic- tion upon otjaer grounds, his power would be exercised accord- ing to the dictates of reason — not the artificial and technical reason of which Lord Coke speaks, but according to the prin- ciples of natural law ; that is, those rules that are obviously just and are generally so received. The court of equity possessed admitted jurisdiction to enforce contribution among co-sureties, and to correct mistakes in written instruments ; and, in exercis- ing its powers in these directions, was enabled to correct the wrong. Co-sureties are alike entitled to contribution, whether the obligation be joint or several. It is no part of the contract that each shall pay a portion, but each one is liable for the whole ; and the equity of contribution is founded rather upon the principles of natural justice than upon the agreement.^ Being so founded, it would be enforced according to those prin- ciples, and not the accident of survivorship ; and, hence, the rep- resentative of a deceased coobligor is compelled to contribute his due proportion to any co-surety who may have paid more than his share of the demand.* When, on the other hand, all the coobligors are principals, when they have all received the bene- fit of the contract, have enjoyed and appropriated its consid- eration — as, the money or property for which the undertaking had been given — it is obvious that the original obligation, that to which the parties would be subject in the absence of the specific agreement, would be several as well as joint. If the specific agreement, then, be so drawn as to be joint only, equity will hold it to have been so drawn by mistake, will treat it as joint and several, and give relief accordingly.^ Hence arose the rule that the personal representatives of a deceased coobligor could be charo-ed in equity, although the obligation by its terms was joint, and could be joined as defendants with the survivors. ' Story's Eq., g 493, and notes. 2 Ibid., g 497. 8 Ibid., 3 162. 133 § 107 OF THE ACTION. [PAKT I. § 106. Continued — The Rule under the Code. — The im- portant inquiry then arises, Which rule should prevail under the new procedure ; should the survivors alone be sujjject to suit, or should all be made defendants "who are imited in interest," although, as to some, the interest is but a representative one? In the states of Kentucky,^ Arkansas,^ Iowa,* and Missouri,* such union is expressly allowed ; but in most of the code states there is no direct provision on the subject. Whether, then, in a joint obligation, or in one made joint in eflPect by statute, as seen in the last chapter,^ the personal representatives of a deceased joint obligor could be united as defendants with the survivors, should, upon principle, depend upon the law of liability. In ordinary joint obligations, every obligor is personally holden ; and upon death, his estate, as much so as he would be if living. The doc- trine of survivorship only operated to change the foriun ; the liability is not changed. There is now but one forum and one form of action, and there is no reason why, in bringing the action, a distinction should be made between the survivors and those who may represent such estate. As to the obligations of trustees as such, they are joint in fact, and the demand is only against the living ; and there may be a difference between part- nership and other obligations. While the estate of every part- ner, both deceased and survivors, is chargeable with all partner- ship debts, yet there is supposed to be a partnership estate from which they should be liquidated. The death of a partner dis- solves the partnership, and the estate goes at once into liquida- tion in the hands of the survivors. Their first duty is to provide for the joint liabilities of the firm, and they hold all the part- nership assets in trust, like any other administrator, primarily for that purpose. § 107. The Decisions upon this Question. — The preponder- ' Bullitt's Code, § 27. ' Dig. 1874, J 4480. » Code 1873, § 2550. « Wag. Stat. 1001, g 7, 'g94. 134 CH. VIII,] PAETIBS TO ACTIOKS. § 107 ance of authority sustains the old rule as unaffected by the Code, although I find the matter considered in but few states. Several cases have come before the New York Court of Appeals in regard to the joint liability of partners, and it is there held that the personal representative of a deceased partner cannot be sued by the creditor, either jointly or otherwise, if the debt can be col- lected of the survivors. It does not distinctly appear what would be the holding of that court in regard to the union as co-defend- ants of the representatives of a deceased joint debtor with the sur- vivors, in other than partnership obligations ; the distinction is not made in the cases. ^ In Iowa, previous to the statutory 1 Yoorliis V. Childs, 17 N. T. 354, affirmed in Riohter v. Poppenhasen, 42 N. T. 373, and again affirmed in Pope u. Cole, 55 N. T. 124, with the additional ruling that the return by the sheriff against the surviving partners of " no goods " shows conclusively a right to proceed against the estate of the deceased, and that it is no defense that they had property which the sheriff did not find. It was also held that the creditor, by showing the insolvency of the survivors, may proceed at once against the estate of the deceased. Voorhis v. Ohilds is the leading case. The action was brought against the surviving partners and the executor of the deceased jointly, upon a partnership obligation, and it was held to be a misjoinder of defendants. The opinion of Seldem J., is elaborate, but seems to me not fully to appreciate the change made by the Code. It shows that, prior to its adoption, there was a conflict of opinion between the New York and English courts in regard to the remedial rights of the creditor upon the decease of a debtor partner, the latter holding that the creditor might proceed at once in equity agains-t the estate of the deceased, while the former held that the estate could not be looked to so long as the debt could be collected, by legal remedies, of the sur- vivors ; the English courts proceeding upon the theory that partnership obligations should be treated as joint and several, while those of New York regarded them as joint only, with the legal incidents. The opinion proceeds to show that the Code has made no change in the law upon this subject: "It cannot be claimed that it [the Code] has altered the principles which govern the responsibility of the representatives of a deceased partner for the partnership debts, or the order of liability as between them and the surviving partners. It contains not a word in indication of such an intent. The latter, therefore, are still primarily liable for the debts, and the estate of the deceased partner can only be resorted to in case of the inability to meet them." The learred judge speaks of the difficulty of applying the rules of equity practice in regard to parties to causes where the issues are triable by jury, and labors to show that the main distinctions between actions at law and suits in equity are still pre- served. To this view it may be said, first, that inasmuch as it is based upon the rulings in that state before the adoption of the Code, in regard to the right of the creditor to pursue in equity the estate of a deceased partner before having exhausted his legal remedies against the survivors, it will have little weight in those states that have followed the English decisions, and hold the personal liability of the partnership debtors to be unaffected by the death of either; second, the liability of the parties to ft contract is measured by the terms of the agreement and its legal effect. Each partner binds himself and his representatives to respond to all partnership obligations, 135 § 107 OF THE ACTION. [PAET I. authority to unite the personal representative with the living party ,^ its Supreme Court had held that there was nothing in the Code which changed the common-law practice in this regard." California, in the earlier cases, conformed to the common-law view that the administrator could not be joined as defendant with the surviving obligors, and for the old reason that one is charged de bonis testatoris and the other de bonis propriis.^ More recent cases, however, leave the matter in doubt.* In Indiana the ruling differs from that found in most of the other code states. Braxton v. The State ^ was an action on a joint bond, brought against the survivors and the administrators of deceased coobligees, and, objection being made to the union, the court held it to be sanctioned by the provision of the Code abolishing the distinction between actions at law and suits in equity, and and with his separate estate. Is there any difference between the liability of the survivors to a joint obligation and the estate of the deceased? Anciently, there was; but since equity has enforced contribution and made such estate chargeable, whatever the theory upon which it is done, for its due share of the obligation, there is none in fact. It makes no difference that, before the adoption of the Code, suitors were driven to a court of equity, and that, In one case, they might at once resort to its aid and pursue, at their option, the estate of the deceased obligor, or, in the other case, be compelled to collect the debt of the survivors, and force the latter to resort to equity to seek a contribution ; in either case the estate of the deceased is bound for its due proportion. The Code but substitutes a direct proceeding for the awkwardness and indirection of the old ; it goes only to the remedy, and does not affect the liability. The New York theory makes the deceased partner a guarantor, so far as the creditor is concerned, instead of a coobligor. 1 Ante, § 106. » Wapello County u. Bigham, 10 Iowa, 39 ; Childs v. Hyde, 10 Iowa, 294 ; Pecker v. Cannon, 11 Iowa, 20 ; Marsh v. Goodrell, 11 Iowa, 474 ; Barlow ». Scott, 12 Iowa, 63. s Humphreys v. Crane, 5 Cal. 173 ; May v. Hanson, 6 Cal. 642. * In The People v. Jenkins, 17 Cal. 500, which was a suit upon a bond given by Brown, deceased, and others, it is remarked: "The point that an administrator on Brown's estate should have been appointed and joined as defendant is answered by the statute, which makes ofiicial bonds joint and several." Whether such joinder would have been sustained does not appear. In Bank v. Howland, 42 Cal. 129, the court affirms the view taken in Humphreys v. Crane as to the form of a joint judg- ment against the survivor and the administrator, declines to express an opinion as to whether an action would survive against his representative upon the death of a joint obligor pendente lite, but says, if it does not abate, the judgment should not be joint, but payable de bonis propriis as to the survivor, and de bonis testatoris as to the repre- sentative. This intimation leaves the ruling in Humphreys v. Crane without any basis ; for if a several judgment, as in equity, according to the nature of the liability, can be rendered in one case, it can in the other. ' 25 Ind. 82. 136 CH. YIII.J PARTIES TO ACTIONS. § 108 by the rule that one may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved ; the court holding it to be the object of the adoption of the section to afford, as far as possible, a simple and direct means of bringing all the parties having an interest in the controversy before the court, and of settling all their rights in a single litigation, and thereby to avoid a multiplicity of suits. ^ In Ohio the union of the representative of the deceased joint debtor with the survivor as defendant, in the same action, is allowed, and is based upon a provision in the statute making the estate of such joint debtor liable, as though the contract had been joint and several.' § 108. In Suits for specific Performance. — In suits for the specific performance of real contracts, brought either by the vendor or the vendee, while the parties to the contract are living, and no third persons have acquired an interest in the property or in the contract, doubts in regard tP parties can hardly arise. If, however, after the execution of the contract, either party has died, or if an interest has been conveyed, devised, or assigned by either, or if liens have been created, or if third persons claim to have otherwise acquired an interest, the question becomes more complex. But by applying the touch-stone of interest — in- terest in the title and in the consideration — there will be little 1 The case was distinguished from Voorhis v. Childs, 17 N. T. 354, because the latter was an action to enforce a partnership obligation, and the chief reason given for the ruling arose from the law of partnership. Braxton u. The State, 25 Ind. 82, was afterwards affirmed in Owen v. The State, 25 Ind. 107, and in Myers v. The State, 47 Ind. 293. It does not appear whether or not the joinder would have been sustained had the action been based upon a partnership obligation ; the court might have deferred to the New York authorities, though in no state do we find the spirit of the Code more fully appreciated than by the Supreme Court of Indiana. I infer, however, otherwise, and in part because this court does not adopt the New Tork doctrine in regard to tfie joint liability of partners, but rather the English, holding the obligation of partners to be joint and several (Meyer v. Thornburgh, 15 Ind. 124), and that, upon decease of one of the partners, the partnership creditor may sue either the survivors or the representative of the deceased partner. Kimball v. Whitney, 15 Ind. 280. The right to join in an action the representative, personal or real, of a deceased joint debtor with the survivor is recognized in several other cases, though no distinct ruling is had upon the question. Baton v. Burns, 81 Ind. 390; Myers v. The State, aupra; Voris V. The State, 47 Ind. 345. 2 Bureovne v. Ohio Life Ins. Co., 5 Ohio St. 586. 137 § 108 OF THE ACTION. [PAET I. difficulty in its solution. Thus, upon death of the vendor, it takes both the heir or devisee and the personal representative to fully refpresent the deceased, to succeed to both his rights and liabilities — the latter as having a right to the purchase-money, and the former as the holder of the legal title.^ And in an ac- tion by his representative for specific performance, the heirs of the vendor, if they do not unite as plaintiffs, should be made de- fendants ; ^ and even if the vendor died without having the legal title, that will not excuse the administrator from uniting the in- testate's heirs as parties ;" and so, if the vendee shall have died, in a like action , both his heirs or devisees and personal representa- tives must be made parties.* On the other hand, if the contract is sought to be enforced against the vendor, the vendee having died, his heirs, as succeeding to his equitable interest in the land, or the devisees of the land, are the proper parties plaintiff,^ and all others having adverse interests should be made defendants: the personal representative of the purchaser, as being under ob- ligation to pay for the land out of the assets,* and the vendor or his heirs as the holder* of the legal title,^ also his personal representatives, a,s " they are the parties who not only receive, » Story's Eq. PI., ? 160. 2 Ibid., II 160, 177; Mitchell v. Shell, 49 Miss. 118. ' Koherts v. Marchant, 1 Hare, 547. "The purchaser, when he is sued for the specific performance of his contract, is entitled to have the question of the valid- ity of that contract decided (if it is to he decided) in the presence of the vendor, or, if the vendor should be dead, in the presence of all the parties who represent him ; he is entitled, after the death of the vendor, to the same benefit from the suit, by ob- taining a decree conclusive of the question, as he would have had if the vendor were living. * * * The circumstance that the legal estate was_outstanding in another person makes no difTerence." See next section. * Story's Bq. PI., § 160. s Buck V. Buck, 11 Paige, 170. 6 Story's Bq. PI., ? 177. ' Morgan v. Morgan, 2 Wheat. 290 ; Moore v. Murrah, 40 Ala. 573 ; Judd v. Moseley, 30 Iowa, 423. The Iowa statute (Eev. of 1873, § 2487) provides that, "where a person under obligation to convey real estate as might have been en- forced against him if living, dies before making a conveyance, the court may enforce the specific performance of such contract by the executor, and require him to execute the contract accordingly." Notwithstanding the power thus given the executor. In Judd V. Mosely the court held that the heir was a necessary party, while the personal representative may be dispensed with — that is, the statute need not be followed, is only directory. As to dispensing with the personal representative, it is probable, though the fact does not appear, that the contract had been paid in full, and the latter had no interest. 138 CH. VIII.] PARTIES TO ACTIONS. § 109 but who are to settle or contest, as the case may be, the amount to be paid by the vendee in fulfillment of his contract."^ It would seem that if the petition showed that the contract had been paid in full, so that the vendor's heir became but a trustee for the purchaser, the presence of his administrator might be dispensed with, and yet that fact could not be conclusively found against him unless he were made a party. If part of the vendor's heirs have already conveyed their interest to the purchaser, in an action for the interest of the other heirs, it is not neces- sary to make the former parties." If the purchaser has paid in full, but has received no conveyance, and assigns his contract to the plaintiff as collateral security, and dies, in a proceeding by the assignee to enforce his equity the heirs of the assignor are indispensable parties,^ and the defect of parties being such as to leave the judgment without foundation, it will be reversed for that reason. § 109. Continiied — As to outstanding Titles. — The old equity rule and its basis, in regard to the adjustment in a bill for specific pei'formance of rights and interests outstanding at the date of the contract, are thus stated by Lord Cottenham : "It is not disputed that, generally, to a bill for specific performance of sale, the parties to the contract are the only proper parties ; and when the ground of the jurisdiction of courts of equity in suits of that kind is considered, it could not be otherwise. The court assumes jurisdiction in such cases because a court of law, giving damages only for the non-performance of the contract, in many cases does not afford an adequate remedy. But in equity, as well as at law, the contract constitutes the right and regulates th% liability of the parties ; and the object of both proceedings is to place the party complaining, as nearly as possible, in the same situation as the defendant had agreed he should be placed in. It is obvious that persons strangers to the contract, and, therefore, neither entitled to the right nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to ' Potter V. Ellice, 48 N. T. 321. 2 Barnard v. Macy, 11 Ind. 536. » Muir 1). Gibson, 8 Ind. 187. 139 § 109 OP THE ACTION. [PAKT I. enforce the execution of it as they are to a proceeding to recover damages for the breach of it." ^ The language used in the cases, that in bills of this nature " the parties to the contract are the only proper parties," must be held to apply to them while living, and while holding the same relation to each other and to the property as when the contract was made ; for, of course, if either party shall have died, their proper representa- tives must be made to appear for them, and under the rules already given, nor can the case be disposed of without the pres- ence of those acquiring subsequent interests. Says Chancellor Kent: ^ " It is well settled that if A enters into a contract to sell land to B, and afterwards refuses to perform his contract and sells the land to C for a valuable consideration, B may, by bill, compel the purchaser to convey to him, provided he be charge- able with notice, at the time of purchasing, of B's equitable title under the agreement. * * * The rule which affects the pur- chaser is just as plain as that which would entitle the vendee to a specific performance against the vendor. " ^ In the Supreme Court of Alabama the following language is used : « ' The rule is that where a specific execution of a contract would be decreed between the original parties to it, that it will also be decreed between all parties claiming under them by assignment or in privity of estate, unless some new equity in favor of the assignor intervenes, and he insists upon such equity in bar of a specific execution of the contract." * If, then, after having entered into a contract for the sale of land, the vendor shall convey the property to a third person, in a suit by the first vendee for the specific performance of the agreement, the person to whom it has been conveyed, as well as the vendor, should be made defendant ; ^ and so if the 1 Tasker v. Small, 3 Myl. & Cr. 63. See, also, Wood v. White, 4 Myl. & Or. 460; Ilobertson v. The Great Western R. Co., 10 Sim. 314 ; Mole v. Smith, Jacobs, 490 ; 1 Dan. Oh. PI. & Pr., 3d Am. ed. 224. The language of Lord Cottenham in the text is quoted approvingly in Chapman v. West, 17 N. Y. 125. 2 Champion v. Brown, 6 Johns. Ch. 898. ' In the following English cases, among others, real contracts were specifically en- forced against the vendor and a subsequent purchaser with notice. Spence v. Hogg, 1 Coll. 225 ; Cutts v. Thodey, 13 Sim. 206 ; Potter v. Sanders, 6 Hare, 1. * McMorris v. Crawford, 15 Ala. 271. See, also. Hays v. Hall, 4 Port. 374. » Daily v. Litchfield, 10 Mich. 29 ; Stone v. Buckner, 12 Smed. & M. 78. 140 CH. VIII. J PARTIES TO ACTIONS. § 110 vendor has made a new contract to sell.^ It is held that all those through whom the contract may have passed by assignment should be made parties,^ although if the assignment is absolute, and if it leaves no interest in the intermediate parties, they need not be brought into court.* If, after the commencement of the suit, the obligor shall convey the legal title to a third person, such person may be made a party by supplemental petition ; * but the obligor will have no right to complain if it is not done.^ The assignee of the vendor in bankruptcy, if the consideration has not been all paid, so that by the assignment he acquires an interest in the contract, must also be made a party .^ And it has been also held, generally, that all who have become interested in the contract, or in the property, as judgment-creditors,' or by transfer or assignment of the whole or any part of it,^ must be made parties. The principle is, that in seeking specific perform- ance, the plaintifi^ has a I'ight to be placed in the position for which he had contracted, and that can only be done by remov- ing the obstacles placed in his way since the execution of the contract. § 110. Multifariousness by an improper Union of Defend- ants. — In equity pleading, multifariousness applies to an im- proper joinder of distinct and independent matters,' and often involves the improper union of defendants, inasmuch as one de- fendant, or class of defendants, may have an interest in one of the matters improperly united and not in the others, and hence should not be called on to answer in respect to them. They may, however, be united if there is some common point of inter- est. "Where several persons, although unconnected with each other, are made defendants, a demurrer will not lie if they have 1 Pullorton V. MoCurdy, 4 Lans. 132 ; Morris v. Hoyt, 11 Mich. 9. ' Estill's Heirs v. Clay, 2 A. K. Marsh. 497. ' Currier v. Howard, 14 Gray, 511. * Casady v. Scallen, 15 Iowa, 93. 6 Goddin v. Vaughn, 14 Gratt. 102. « Simpson v. Kouse, 65 N. C. 34. ' Saegon v. Bums, 4 Minn. 141. 8 Agard v. Valencia, 39 Oal. 292. » Story's Bq. PI., | 271. 141 § 111 OF THE ACTION. [PART I. a common interest centering in the point of issue in the cause." ^ As ill a creditor's bill, when the debtor had conveyed lands in fraud of creditors, and the title to different parcels had passed to different persons, they may all be joined as defendants in one action, for they all were concerned in, or, rather, had an interest in respect to, the fraud.^ So, in an action by a principal against his agent, who, with the plaintiff's money, had purchased prop- erty, and, without consideration, had conveyed it, part to one co-defendant, and part to another, the complaint was held to be not multifarious.^ In Iowa the heirs, in a proceeding to set aside as illegal sales of city lots by an administrator, and for an accounting, were permitted to join as defendants the several purchasers of the lot's.* A bill for foreclosure which makes par- ties of sundry persons for the purpose of cutting off their equi- ties is not, for that reason, multifarious.^ In the Supreme Court of the United States^ the right is shown to join all who claim real or personal estate under one title, although by distinct and separate sales, when each sale was not only wrongful, but in- volved the consideration of the same question, to wit, the authority under which they were made. § 111. Parties in other Actions, and whether one should be made Plaintiff or Defendant. — To speak in detail of the iiidis- pensable, of the necessary, or of the proper parties in all the various actions of an equitable nature would unduly extend this portion of the present work. The cases which have been given clearly illustrate the rules. Keeping in view the object of the action, understanding the interest and claims to be affected, 1 Fellows V. Fellows, 4 Cow. 682. See, also, Variek v. Smith, 5 Paige, 137. ' Winslow V. Dousman, 18 "Wis. 456 ; North v. Bradway, 9 Minn. 183 ; Howse o. Moody, 14 Fla. 59. 3 Blake v. Van Tilborg, 21 Wis. 672. See, also, Bassett'o. Warner, 23 Wis. 673, where the subject is discussed. * Bowers v. Keesecker, 9 Iowa, 422. The opinion says : " The defendants in this instance all derive their interest from Snow, as the administrator of Bowers. The ob- ject of the bill was to have determined the right of Snow, as administrator, to make sale of the lots ; and as the defendants were jointly interested in the determination of this question, it was proper that they should be made joint defendants." * Greither v. Alexander, 15 Iowa, 470. 6 In Gaines v. Chew, 2 How. 619. 142 CH. VIII.] PARTIES TO ACTIONS. § 111 remembering that the rights of no one can be conchided until he shall have had an opportunity to be heard in regard to them, and noting, further, that courts will discourage many suits where one will suffice, that they will not give remedies by piecemeal, but will require such persons to be brought into court as will enable them to make a full and complete settlement of the ques- tions or interests involved, the pleader, in this regard, will be seldom wrong. In addition to illustrations already given, an- other, where there is a personal money demand, will show when other parties should be brought in. As will be hereafter shown, where one, for a good consideration, has promised a debtor to pay his debt, the creditor may maintain an action for the debt in his own name. But if the promise be general — as, to pay all the debtor's obligations out of property turned over to him — and the amount of the debt sued on was not specified, and has not been liquidated by judgment, in suing the promisor the debtor should also be made a party, as interested in the question of liability and its amount.^ The pleader may be embarrassed in actions of an equitable nature, and where diverse interests may be in- volved, in deciding whether some party should be united as plaintiff or treated as an antagonist. The rule applicable to all pleading is given in the Code in these words : "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants," followed by the permission to make defendants of unwilling plaintiffs ; ^ so that where there are more than one having the same interest and who are necessary parties, one of them cannot bring an action making the others defendants unless they refuse to unite as plaintiffs ; nor can those having adverse interests unite as plaintiffs. To illustrate : While differ- ent mortgagees cannot unite in a bill to foreclose, inasmuch as they are not united in interest, if a single mortgage, or the obli- gations secured by it, are assigned to more than one, they must ' Hardy v. Blazer, 29 Ind. 226 ; Durham v. BischoflC, 47 Ind. 211. 2 Code Proc. N. T., ? 119; Code Civ. Proc. 1876, ? 448; Code Proc. Ohio, ? 36 Code Civ. Proc. Ind., g 19; Stat. Wis. 1871, ch. 122, I 20; Bullitt's Code Ky., g 36 Gantt's Dig. Ark. 1874, ? 4477; Wag. Stat. Mo. 1001, ^ 6; Code Iowa 1873, § 2548 Code Civ. Proc. Kan., | 37 ; Code Civ. Proc. Neb., g 39 ; Code Civ. Proo. Cal. 1874, 2 882 ; Comp. Laws Nev. 1873, g 1077 ; Code Civ. Proc. Oreg., ? 381 ; Code Civ. Proc. N. C, 2 62 ; Code Proc S. C, \ 142 ; Code Proc. Fla., g 70 ; Code Civ. Proc. Col., J 13. 143 § 111 OF THE ACTION. [PART I, unite, for their interest is the same. In the first case the interests of the different mortgagees are distinct from each other, and perT haps adverse ; in the last they depend upon the same deed, and anything which would affect its validity as to one would affect it as to all. The adjustment of their rights as between themselves is provided for in the clause in regard to judgments. And in a petition for the specific performance of a real contract, where the vendee has sold, by parcels and to different persons, the property embraced in the contract, the purchasers of all the parcels are united in interest as assignees, and should unite in the petition. The difference as to joinder of interests, as be- tween plaintiffs and defendants, is this : "While persons, in order to be enabled to join as plaintiffs, must have a joint interest or a common interest, this is not required of defendants ; for all whose interests are adverse to that of the plaintiff must be made de- fendants, and all who have an interest in the subject of the ac- tion may be made defendants, whatever their relation to each other. 144 CH. IX. J JOINDER OF CAUSES OF ACTION. § 112 CHAPTER IX. Op Joinder of Causes of Action in one Complaint or Pktition. Sectiom- 112. The Language of the Codes. 113. A Cause of Action — Pacts constituting a Cause of Action — Meaning of the Terms. 114. Different Modes of Relief do not make different Causes of Action. 115. Continued — Illustrations. 116. Continued — The judicial View. 117. The Causes of Action must he between the same Parties in the same Eight. 118. As to splitting a Cause of Action. 119. The separate Statement. 120. Continued — Where there are two Causes of Action and one Relief. 121. Completeness of each Statement. 122. The Causes of Action must be consistent. 123. Bach Party toust be affected. 124. Joinder under the old Systems. 125. First Class : Union of Causes of Action under. Meaning of the Term " Transaction." 126. Continued — What is the Subject of the Action? 127. Second : Joinder of Causes arising out of Contract. 123. Implied Contracts. 129. Third Class : Injuries. 1.30. The Joinder when the Tort may be waived. 131. Fourth Class : Injuries to Character. 132. Fifth Class: Ejectment. 133. Replevin. 134. Claims against Trustees. § 112. The Language of the Codes. — "The plaintiff may unite fn the same complaint [petition] several causes of action, whether they be such as have heretofore been denominated legal or equitable, or both, when they all arise out of (1) the same transaction, or transactions connected with the same subject of action; (2) contract, express or implied; (3) injuries with or without force to person and property, or either; (4) injuries to 145 ID § 112 OF THE ACTION. [PART I. character; (5) claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same ; (6) claims to recover personal property, with or without damages for the withholding thereof; (7) claims against a trustee, by virtue of a contract or by operation of law. But the causes of action so united must all belong to one of those classes, and [ex- cept in actions for the foreclosure of mortgages — North Carolina and Florida] must affect all the parties to the action and not re- quire different places of trial, and must be separately stated " [and numbered — Ohio and Kansas].^ The codes of Kentucky^ and of Arkansas^ omit the first class, and also the phrase concerning legal and equitable causes.* The other classes are substantially like those of the New York Code of Procedure, although differently 1 Code Proc. N. T., § 167 ; Code Proo. Ohio, 5^ 80, 81 ; Stat. Wis. 1871, oh. 145, a 31, 32 ; Code Proc. Minn., § 103 ; Code Civ. Proc. Kan., ^ 83 ; Code Civ. Proc. Neb., §§ 87, 88; Code Civ. Proc. 2Sf. C, ? 128; Code Proc. S. C, ? 190; Code Proc. Pla., ^ 117. The New York Code of Civil Procedure of 1876 has made substantial changes in regard to the subject of this chapter, but they are too recent to have been considered in the reported cases. The old provision, as above, is the one generally adopted elsewhere, and the decisions under it will be hereafter given, both as being useful where the change has not been made, and in refer- ence to what is substantially retained. The following is the new classification in New York: "Sec. 484. The plaintiff may unite in the same- complaint two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought to recover as follows : 1. Upon contract ; express or implied. 2. For personal injuries, except libel, slander, criminal conversation, or seduction. 3. For libel or slander. 4. For injuries to real property. 5. Real property, in ejectment, with or without damages for the withholding thereof. 6. For injuries to personal property. 7. Chattels, with or without damages, for the taking or detention thereof. 8. Upon claims against a trustee, by virtue of a contract or by operation of law. 9. Upon claims arising out of the same transaction or trans- actions, connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. But it must appear upon the face of the com- plaint that all the causes of action so united belong to one of the foregoing sub- divisions of this section; that they are consistent with each other," etc. These subdivisions are plain, but the last one, like the first in the old Code, will doubtless give rise to some controversy. 2 Bullitt's Code, ? 83. s Gantt's Dig. 1874, ? 4550. * They also provide that proceedings in a civil action may be either ordinary or equitable, and that the plaintiff' may prosecute his action by equitable proceedings in all cases where courts of chancery, before the adoption of the Code, had jurisdiction, and must so proceed in all cases where this jurisdiction was exclusive. Bullitt's Code, §2 5, 61 ; Gantt's Dig. 1874, §§ 4453, 4454. This provision is also embraced in the Iowa Code of 1873, U 2507, 2508. 146 CH. IX.] JOINDER OF CAUSES OF ACTION. § 112 numbered, and embracing as one class " claims for the partition of real or personal property, or both." The Missouri Code ex- tends the scope of tiie seventh class as follows: "7. Claims by or against a party in some representative capacity, by virtue of a contract or by operation of law," and adds, at the close, "with the relief sought for each cause of action, in such manner that they may be intelligibly distinguished." The codes of In- diana and Iowa, while upon this subject they radically differ from each other, also differ from those of every other state, the for- mer, abolishing the distinction between legal and equitable causes of action, classifies those that may be united with special refer- ence to the object of the action ; the latter, preserving that dis- tinction in its old prominence, allows the union of all which are legal, and of all which are equitable.^ The codes of Califor- nia^ and of Nevada^ omit the phrase " whether they be such as have heretofore been denominated legal or equitable," oinit the first class, add to the class embracing claims for the recovery of real property, etc., claims "for waste committed thereon," places in distinct classes " injuries to person " and " injuries to charac- ter," and provide that " an action for malicious arrest and prose- ' The Indiana provision is as follows : " Sec. 70. The plaintiflf may unite several causes of action in the same complaint when they are included in either one of the following classes : 1. Money demands on contract. 2. Injuries to property. 3. Inju- ries to person or character. 4. Claims to recover possession of personal property, with or without damages for withholdiiJg thereof, and for injuries to the property withheld. 5. Claims to recover possession of real property, with or without damages for withholding thereof, and rents and profits of the same — to make partition thereof, and to quiet the title to real property. 6. Claims to enforce the specific performance of contracts, and to avoid contracts for fraud or mistake. 7. Claims to foreclose mort- gages; to enforce or discharge specific liens; to subject to sale real property upon demands against decedents' estates, when such property has passed to heirs, devisees, or their assigns ; to marshal assets and to substitute one person to the right of another ; and all other causes of action arising out of a contract or duty and not falling within either of the foregoing classes. But causes of action so joined must affect all the par- ties to the action, and not require different places of trial." The following is the cor- responding section of the Iowa Code of 1873 : " Sec. 2630. Causes of action of what- ever kind, when each may be prosecuted, by the same kind of proceedings, provided they be by the same party, and against the same party, in the same right, and if suit on all may be brought and tried in the same county, may be joined in the same pe- tition ; but the court, to prevent confusion therein, may direct all or any portion of the issues joined therein to be tried separately, and may determine the order thereof." ' Code Civ. Proc, ^ 427. » Comp. Laws 1873, J 1127. 147 § 113 or THE ACTION. [PAET I. cution, or either of them, may be united with an action for either an injury to the character or to the person." It is held, however, in California that claims of a legal and of an equitable nature may be united in one complaint.^ The Oregon Code abolishes only the distinctions " between forms of actions at law," * and, in provid- ing for the union of several causes of action, omits all reference to equitable causes, omits the first class contained in the New York Code of Procedure, and makes two classes of injuries, one being to the person and one to property.' The Code of Civil Procedure of Colorado* differs from all the rest, and by class first, actions may be united for the recovery of real property, with damages, rents, profits, etc. ; by class second, actions for the recovery of personal property, with damages, etc. ; and by class third, all actions for damages, whether upon contract or for injuries to property, person, or character. § 113. A Cause of Action — Facts constituting a Cause of Action — Meaning of the Terms. — We have defined an action to be a proceeding for the prevention or redress of a wrong.^ The cause of action, then, is the wrong. In a given case, the latter phrase at the head of this section includes the former, for there can be no cause of action aside from the facts which constitute it ; the facts show a wrong committed or threat- ened, and unless they do so, there is no cause of action, or, in the language of the statute, "the complaint [petition] does not state facts suiEcient to constitute a cause of action." The wrong may be done by the denial of a right ; or by the refusal to respond to an obligation ; or it may arise from mere neglect in the performance of a duty ; or it may be an affirmative injury. An instance of the first is an adverse claim to prop- erty, or the denial of an obligation ; of the second, the non- performance of an agreement; of the third, an injury result- ing from negligence ; and of the fourth, a trespass. In the com- ' Eastman v. Thurman, 24 Cal. 379; Gray v. Dougherty, 25 Cal. 266; More v. Massini, 32 Cal. 595. 2 Code Civ. Proc, J 1. » 2 91. *2 70. « Ante, I 1. 148 CH. IX. J JOINDER OF CAUSES OF ACTION. § 113 plicated disputes that sometimes ainse, and especially in those that call for remedies of an equitable nature, the classification will not always be so simple ; but we cannot conceive of an ad- versary proceeding which does not involve some wrong which is sought to be jjrevented or redressed. If a right be denied, or an obligation ignored, or a duty neglected, no cause of action is shown — that is, no wrong appears without a statement of the facts showing the right or the obligation or the duty, as well as its denial or the neglect ; and this statement may be very simple, or it may be complicated, according to the nature of the wrong, or of the relief which is sought. Thus, no wrong appears from a denial of plaintiff's right of property and from his dispossession, unless he shows his title to the property ; nor does a wrong ap- pear from refusing to respond to an obligation until the facts are shown creating it. And so of injuries that result from negligence — the matter about which the defendant was employed, either personally or by his servant or agent, and the want of care in the employment, are facts to be shown, as well as the resulting injuiy ; they must all appear, or there is no wrong. But in a direct personal injury — as, assault and battery, or slander — the wrong appears without preliminary averments ; the right of exemption from the injury is incident to our being, and the justification, if there be any, must come from the one who has inflicted it. In every case but the last the facts stated must show a right, or there can be no cause of action — that is, there can be no wrong. " Where there is a wrong there is a remedy," and if one suffers an injury for which the law affords no remedy, it is called, in torts, damnum absque injuria — an injury without a wrong.^ The ' Wrongs usually involve blame, but there is a class of causes where such wrong can hardly be supposed — as, where a trustee applies to the court for direction in the execution of the trust This is rather a proceeding to ascertain a right, and an actual wrong cannot be predicated until after the duty is declared. And yet, theoretically, there is a wrong ; for when the court gives construction to an instrument or declares a duty, it is such as the party himself should have understood and performed. And in an action for the reexecution or reformation of a contract, the wrong may not have been voluntary, inasmuch as the accident or mistake may have arisen without defend- ant's fault. He commits a wrong, however, by refusing the remedy without action ; but if under disability, or If other rights have intervened, so that the action of the court becomes necessary, the plaintiff has suffered a wrong, and the question of blame is only material as affecting costs or some other penalty. In speaking, in this con- 149 § 114 or THE ACTION. [PART I. cause of action and the facts which show it involve, then, some wrong suifered by the plaintiff — some infraction of his rights ; and, in considering the union of causes of action in one suit, this view must be kept clearly in mind, lest the pleader improp- erly combine causes of action, or split up a cause, or imagine he has different causes when he is only seeking different kinds of relief. § 114. Different Modes of Relief do not make different Causes of Action. — The law may give more than one kind of relief for a single wrong — that is, for one cause of action. A doubt as to whether in such case there is not more than one cause of action has arisen where there is really but one wrong — as, the non-payment of a debt — but where the" plaintiff's remedy is twofold — that is, he may bring one or another kind of action — and the facts constituting a cause of action in adopting one remedy differ from those which entitle him to relief in the other. As, in enforcing a contract secured by mortgage, or suing upon a promissory note given for the purchase-money of land, in pur- suing one remedy it is sufficient to aver and prove the contract ; while, in seeking the other, the mortgage or the consideration of the note must be also averred and proved. And yet there is but one right — the right to the money ; and one wrong — the refusal to pay it. The lien, or the right to pursue the property, is but an additional relief, furnished in one case by the act of the pai'ties, and in the other by the law. In these cases it is clear that the plaintiff may bring suit upon the contract merely, and seek only a personal judgment, or he may seek to enforce the lien as well ; but each action is based upon the same cause of action, and in seeking the full relief the plaintiff does not unite two causes of action in one suit, but simply so states his facts as to entitle him to such relief. There is another class of cases, where one cannot proceed in the ordinar}'^ mode of collecting his debt or recovering his property without the previous interposi- tion of the court. If, in these cases, the plaintiff seeks full nection and elsewhere, of the action as necessarily prompted by a wrong, special proceedings not antagonistic in their nature,, and where the action of the court is as much administrative as judicial, are not referred to. 150 CH. IX. J JOINDER OF CAUSES OF ACTION. § 115 redress, he has but one cause of action ; he pursues but one right — a right to the money or property wrongfully kept from him, and the special interposition of the court is but part of the relief, an act or order necessary to such redress. And yet he may not seek full relief; he may not yet be entitled to it, or may prefer to postpone it, but still desires the obstacles to be re- moved — wishes to be placed in position where, in due time, he can pursue his full right, and accordingly he brings suit for that purpose only. He has not, in such case, the same cause of ac- tion ; the wrong to be now remedied does not consist in depriv- ing him of the money or property, but in something else ; and he may, for the present, be satisfied with redressing that wrong, or may not yet be able to do more. But it does not follow that, when one seeks full relief, there are two causes of action. It is then a different cause. The plaintiff seeks, as it were, double re- lief, as will appear by the illustrations in the next section. The pleader will derive aid, in enabling him to decide intelligently whether the facts constitute one or two causes of action, by ob- serving, in the separate statements of what he may suppose to be each cause, in some cases, the incompleteness of the obliga- tion in one of the statements, that alone it will not support a judgment, and hence does not embody a cause of action — only a part of the facts that constitute it; and in other cases, that each statement complains of the same breach of the same obli- gation, and hence states the same cause of action. § 115. Continued — Illustrations. — The plaintiff may be the owner of a written obligation which has been destroyed. He may enforce it, if due, notwithstanding its destruction, and with- out the form of a preliminary order, the fact of the loss being shown, or he may be content with an order for its reexecution ; and, if the obligation is not due, that is all the relief to which he is as yet entitled. The wrong in the first case is in not com- plying with the terms of the obligation ; in the second, in not executino- a new one. So, in an action for the reformation of a written ao-reement, the plaintiff may seek to have it enforced as it was actually made, and should have been written, or may only desire the correction of the error. The wrong in one case is in 151 § 115 or THE ACTION. [PABT I. refusing to do as the party agreed to do ; in the other, in refusing to correct the mistake. The plaintiff seeks to recover land which is really his own, but the legal title is in another ; a fraudulent conveyance perhaps intervenes ; he may sue only to have the con- veyance canceled, and for title, or he may ask also for posses- sion and for damages. This is more like splitting an action; but inasmuch as under the old system the first relief could be obtained only in equity, while an action for the latter, if sought separately, was called an action at law, the two actions in regard to the same land are allowed, although they may be, and ordinarily should be, combined — that is, there should be but one action ; and if the plaintiff seeks full relief, it is not a union of causes of action. The wrong has been in keep- ing him out of possession of his land, in depriving him of its use, and by means of a fraudulent title ; the cancellation of the evidence of that title, compensation for the dispossession, as well as giving possession, are but different measures of relief for the same wrong. But where the suit is for the cancellation only, the wrong consists in shadowing the title by the cloud of a fraudu- lent paper.* I Where a contract is both reformed and enforced, the relief may be called double : first, the correction of the mistake ; and, second, the damages for its breach. It would seem that the judgment need only be for the amount due, and that the mistake could be treated as matter of evidence — that is, that the court would admit evidence of the mistake, as showing what the contract actually was, and permit a recovery as upon a lost instrument ; and but for the long distinction between the powers of courts of law and of equity, this might, perhaps, be done. In courts of law the rule has been inflexible that the instrument is to be taken as it reads — it, and it only, is evidence of the agreement covered by it; while equity would correct a mistake, though established by parol. The decree of the chancellor could be used in the courts of law to vary the agreement as written ; the interposition of two courts — that is, two independent issues and j udgments — were necessary to give relief upon the instrument ; and it makes DO difference in principle, though the equity courts came to give the full relief. It con- tinues, therefore, to be the practice to render a double judgment-^ an order for the reformation of the instrument, followed by a judgment for the amount due upon it. In Globe Insurance Company v. Boyle, 21 Ohio St. 119, while the court recognized the necessity of the order of reformation as preliminary to the judgment on the merits, it held the omission to be an error of form, which would not authorize a reversal of the judgment, inasmuch as the evidence, as preserved in the record, showed that the plaintiff was entitled to such an order, which it would be the duty of the appel- late court to give. As to the judgment where a defendant seeks to avail himself of a mistake in the instrument sued on, see, post, ch. 17. 152 CH. IX.] JOINDER OF CAUSES OF ACTION. § 116 § 116. Continued — The judicial View. — The old courts of equity in effect treated the cases which have just been supposed as containing but one cause of action, although it was seldom so stated in terms. The saying was so frequent as almost to be- come a formula, that, when the chancellor had obtained jurisdic- tion, he should do complete justice — that is, should give the plaintiff every relief to which he is by law and the facts entitled. The courts in the states that have adopted the new practice con- tinue to use the old formula, though they are not always precise as to whether there is one or more causes of action. ^ The courts of New York uniformly treat this class of actions as embracing but one cause of action, in which the plaintiff is allowed to re- cover full relief.^ California follows New York.^ The Indiana 1 As to tlie extent of the relief that may be given in actions of an equitable nature, see Part H, J§ 166-173. ^ Most of the New Tork oases treat the matter with reference to the relief, affirm- ing the old equity rule, but this necessarily supposes that there is but one cause of action. Thus, in Bid well v. Astor Insurance Company, 16 N. Y. 263, j udgment had been rendered below for the reformation of an insurance policy, and for the amount due upon it. In affirming the judgment the Court of Appeals scouts the objection that the court 'should have stopped with reforming the policy and have turned the plaintiff over to a new action to recover his damages. In New York lee Company v. Northwestern Insurance Company, 23 N. Y. 357, which was a similar action, the same court treated the application for reformation and for damages as one action, and held that even if the equity for reformation failed, and there was enough in the contract unreformed, and the evidence, to show a claim for damages, the plaintiff should have judgment In Gaboon D. Bank of Utica, 3 Seld. 486, one Brown had assigned to defendants a bond and mort- gao-e to secure certain indebtedness, and afterwards assigned to the plaintiffs all his rights and credits. The action was against Brown's first assignees for an account, for the delivery of the instruments secured, and for the payment of the balance in their hands. On objection for misjoinder, the majority of the court held that, notwithstand- ing the balance in the hands of defendant was ascertained, there was but one cause of action. Jewitt and Welles dissenting, and holding it to be a union of two causes of ao- action without stating them separately. In the Supreme Court the same view is taken. Thus, an action for cutting off the plaintiff's access to the river by a railroad running across a bay, and between his landing and the main stream, was for a single griev- ance, and he was allowed a judgment for damages and an order upon the defendant to construct a bridge and passway as required by statute. Getty v. Hudson River K. Co., 6 How. Pr. 269. It was also held, in Spear v. Robinson, 9 How. Pr. 325, that a specific performance of a real contract, and for the rents and profits of the land while in the vendor's possession after sale, constituted but one cause of action, the judge (Cady) remarking that "it was a specification of what he [the defendant] ought to do to make full compensation for the wrong done him." 3 In "Walker v. Sedgwick, 8 Cal. 398, the court treats an action brought for a per- sonal iudgment founded upon a promissory note given for the purchase-money of 153 § 116 OF THE ACTION. [PAET I. Code expressly provides that a contract may be reformed and enforced by one action.^ The judges of the Supreme Court of Wisconsin, when relief of a legal and of an equitable nature are given in one action, usually speak of the action as embracing more than one cause ; and so do those of Minnesota.^ The position land, and another action to enforce the lien, as both being for the same cause of action, although a judgment without satisfaction in the first suit is no bar to the second. But inasmuch as under the Code the plaintiff might, in one action, have obtained his full relief, he should be required to pay the costs of a second suit. After referring to the old necessity of going into a court of law to obtain a personal judgment, and to a court of equity to enforce the lien, the following language is used : " But under our system of practice, when law and equity are both administered by the same tri- bunal, and may be in the same suit, the reason for the former rule does not exist, and the rule itself should cease. Why should the purchaser be harassed with the costs of two separate suits to obtain the end that as well might be reached by one ? The whole spirit of our system and its leading intent is to avoid a multiplicity of suits. This is the best feature of the system. All the party has to do is to make a concise and true statement of the facts that constitute his cause of action and defense, and then the court will give him such relief as by the rules of law or equity he may be entitled to receive. In this case the plaintiff should have stated all the facts in the suit upon the notes, and the court could have given him such a decree as he was entitled to have." I have given so much of the language of the court in this case because it shows, for the time when it was used (1857), an unusual appreciation of the spirit and object of the Code, better than in some of the other early cases. In California there is no expresH permission to unite causes of action of a legal and equitable nature, and it is nowhere intimated that to seek relief by a personal judgment, and by an order charg"- ing land upon which the demand may be a lien, shows two causes of action. See Gray v. Dougherty, 25 Cal. 266 ; Murphy v. Rooney, 45 Cal. 78. 1 Monroe v. Skelton, 36 Ind. 302. ' In Sauer v. Steinbauer, 14 Wis. 70, in an action to foreclose a mortgage, a judg- ment was sustained which had been rendered against the mortgageor for an unsatisfied balance that may remain after the sale, and upon the ground that the statute author- ized the union in one complaint of more than one cause of action. There was but one count, and nothing was said in regard to the necessity of separate statements. In Stillwell o. Kellogg, 14 Wis. 461, in afiirming a similar judgment, the court does not speak of it as a joinder of two causes of action, but as a customary judgment in an action for foreclosure ; treats the whole case as equitable, and denies the right to a jury trial. But in Paesi v. Goetz, 15 Wis. 231, the same judge (Paine) treats a similar complaint as containing two causes of action. Also, an action seeking a per- sonal judgment and to enforce a vendor's lien was afterwards said to contain two causes of action properly united. Stephens v. Magor, 25 Wis. 533. In Harrison v. Juneau Bank, 17 Wis. 340, the court distinctly speaks of a complaint seeking to re- form a contract and to enforce it, as reformed, as embracing two causes of action, which should have been separately stated. In none of these Wisconsin cases was an attempt made to define a cause of action, nor does the distinction seem to have been presented by counsel, or considered by the court, between actions seeking more than one kind of relief and a union of different causes of action. To show the narrow view which continued to be taken by a court of excellent character and reputation, see Board of 154 CH. IX.] JOINDER OF CAUSES OF ACTION. § 118 taken in Missouri is somewhat ambiguous, but the legal and equi- table relief seems to be treated as showing two causes of action.^ § 117. The Causes of Action must be between the same Parties In the same Right. — The pleader will not be likely to overlook the express requirement that, in the joinder of causes of action, they must affect all the parties to the action. But the several causes thus united must not only affect the same parties, but they must be affected in the same right. Thus, one cannot be sued upon his personal liability, and in the same action upon his liability as executor or administrator ; ^ nor can one sue, though by different statements, as executor or administrator, and in his personal capacity.^ In requiring that each cause of action should affect all the parties, it is not meant that they are all to be affected equ.tlly ; otherwise, but few causes for the enforce- ment of equitable demands could be united. If one cause of action be joint (that is, be a wrong done to the plaintiffs in respect to their joint rights), causes of action that are several (that is, wrongs in respect to the individual rights of each of the plaintiffs) cannot be united with it.* § 118. As to splitting a Cause of Action. — It is a rule that one cause of action — as, one springing from a single contract — Supervisors v. Decker, 30 Wis. 624; Horn v. Ludington, 32 Wis. 73. The Supreme Court of Minnesota, in Guernsey v. American Insurance Company, 17 Minn. 104, treats an action for the reform of an insurance policy and for a judgment, as reformed, as containing two causes of action, the first of which should be passed upon by the court before the other issues could be submitted to a jury. ' The Supreme Court of Missouri, from Peyton v. Kose, 41 Mo. 257, to Henderson V. Dickey, 50 Mo. 161, held that if a party sought legal relief in an equitable action, he combined two causes of action, and that in order to obtain such relief he should seek it by another action, or by another count in the equitable action. This position is more fully discussed hereafter. Post, H 170, 171. " Ferrin v. Myrick, 41 N. Y. 315. The court in this case treats the following prin- ciples as settled: (1) That for all causes of action arising upon a contract made by a testator in his life-time, an action can be sustained against the executor as such, and the judgment would be de bonis testatoris ; (2) that in all causes of action, where the same arises upon contract made after the death of the testator, the claim is against the executor personally, not against the estate, and the judgment must be de bonis propriis; (3) that these different causes of action cannot be united in the same com- plaint." The second proposition is affirmed in Austin v. Monro, 47 N. Y. 360. 3 Lucas ■». New York Central R. Co., 21 Barb. 245. * Grant v. McCarty, 38 Iowa, 468. 155 § 118 OF THE ACTION. [PAET I. cannot be so split as to authorize more than one action ; and the same rule would make it improper to so divide a single cause of action, by separate statements in one complaint, as to show more than one cause of action. It is sometimes difficult to decide whether a given matter — as, a running account for the sale of different articles of property, or distinct breaches of a written ao;reement — constitutes but one cause of action, or more than one ; and the courts have not always been in accord upon this subject. Logically, every wrong furnishes itself a cause of action, but different wrongs may be so blended as to be called a single wrong, as to furnish but a single cause of action, especially with reference to the policy of the law, which discourages a multi- plicity of suits. A distinguished common-law judge in New York says: "All damages arising from a single wrong, though at different times, make but one cause of action; and all debts and demands already due by the same contract make one entire cause of action."^ This language was quoted in the New York Court of Appeals by Strong, J., who further remarks: "Per- haps as simple and safe a test as the subject admits of, by which to determine whether a case belongs to one class or the other, is by inquiring whether it rests upon one or several acts or agree- ments. In the case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however numerous the items of wrong or damage may be ; in respect to contracts, express or implied, each contract affords one, and only one, cause of action. The case of a contract containing several stipulations, to be performed at different times, is no exception; although an action may be maintained upon each stipulation as it is broken, before the time for the performance of the others, the ground of action is the stipulation, which is in the nature of a several contract. Where there is an account for soods sold, or labor performed ; where money has been lent to, or paid for, the use of a party at different times, or several items of claims spring in any way from contract, whether one only or separate rights of action exist, will, in each case, depend upon whether the case is covered by one or by separate contracts. The several 1 Cowen, J., in Bendernagle v. Cocks, 19 Wend. 207. 156 CH. IX. J JOINDEE OF CAUSES OF ACTION. § 118 items may have their origin in one contract — as, on an agreement to sell and deliver goods, or perform work, or advance money ; and usually, in case of a running account, it may be fsxirly implied that it is in pursuance of an agreement that an account may be opened and continued, either for a definite period or at the pleasure of one or both the parties. But there must be either an express contract or the circumstances must be such as to raise an implied contract embracing all the items, to make them, where they arose at different times, a single or entire demand or cause of action." ^ The cases are numerous where this question has.been raised, as in the case just quoted from, where, in a second suit upon the same alleged cause of action, a defense is made upon the ground that a part of the account, or some of the breaches of an agreement, in suit had been the foundation of a previous action. The question only concerns the pleader, in this connec- tion, as enabling him to determine whether to embrace his claims in one or more statements — that is, whether he has more than one cause of action.^ But parties may agree that the items of a claim for goods, etc., may be divided ;^ and if one has sued to recover possession of specific articles of personal property, not knowing that the defendant had possession of other property which he also claimed, he may have a second action for the articles which, for that reason, he had not included in the first.* It is also held that, where the plaintiff had assigned a portion of a demand, and the defendant had, in effect, consented by securing the portion assigned, the plaintiff may sue for the balance, and without making the assignee a party.* An action for moneys fraudu- lently obtained, although at different times and by divers frauds, is held to embrace but one cause of action.® 1 Secor V. Sturgis, 16 N. T. 548. In this case the business of the plaintiff consisted of two branches, which were designed to be, and were, kept entirely distinct from each other. In an action upon an account accruing in respect to one branch of his business, it was held that the two branches were so distinct that separate suits would lie upon the accounts of each. 2 See, as affirming the general doctrine given in the text, from Secor v. Sturgis, and as applied to trespass in taking personal property, Draper i;. Stouveneal, 38 N. Y. 219, quoting Parrington v. Payne, 15 Johns. 432. ' Mills V. Garrison, 3 Keyes, 40. * Risley v. Squire, 53 Biirb. 280. » Boyle V. Bobbins, 71 N. C. 130. • The People v. Tweed, 5 Hun, 363. The view taken in Missouri is not altogether 157 § 119 OF THE ACTION. [PART I. § 119. The separate Statement. — Whatever the provision as to the nature of the causes of action that may be united in one proceeding, it is uniformly required that each cause be separately stated, and in some states that the statements be numbered. These separate statements are frequently called counts, a term talten from common-law pleading ; yet the rules that govern each should be distinguished. A second common-law count might embody a new cause of action, or be a statement in different form of a cause already declared on. Nor was it required that each count should embrace every fact necessary to its validity, provided the facts omitted had been stated in other counts and were properly referred to. But it is generally required that the different statements of a code pleading should contain causes of action different in fact. The statutes all require that the facts shall be stated without repetition, or unnecessary repetition, and, with a few exceptions, this requirement is held to forbid a dupli- cate statement, in different form, of the same cause ; and if such statements are made, the plaintiff will be required to elect upon which to go to trial, or the court will strike out all but the first statement.^ The Supreme Court of Indiana has, however, held that, inasmuch as the oath is not required in that state, the pleader will be permitted to make a second statement of the same cause of action;^ and in Wisconsin the same liberty has been given him when not fully advised as to defendant's relation in harmony with that of the text. In The State v. Dulle, 45 Mo. 269, the fact that several distinct hreaches were counted on, and the verdict was for an entire sum, wa^ held ground for reversal, the practice in Missouri being to require from the jury a separate verdict upon each cause of action. In Boyce v. Christy, 47 Mo. 70, the action was brought by an apprentice upon the indenture, and the several breaches charged were called distinct causes of action. In The State v. Davis, 35 Mo. 406, the court, however, held that the several breaches of a sheriff's bond furnished but one cause of action. Moore v. Smith, 10 How. Pr. 361, does not conform to the other New Tork cases. In Pisk v. Tank, 12 Wis. 276, the defendant had agreed to build and set up steamboat engines, and an action charging failure in point of time, also defects in their construction, with appropriate damages for each breach, was held to embody but one cause of action — there was but one contract, although two breaches of it. 1 Stockbridge Iron Co. i.. Mellen, 5 How. Pr. 439; Churchill v. Churchill, 9 How. Pr. 552; Lackey v. Vanderbilt, 10 How. Pr. 155; Dunning v. Thomas, 11 How. Pr. 281 ; Dickens i;."New York Central K. Co., 13 How. Pr. 228 ; Mead v. Mali, 15 How. Pr. 347 ; Whittier v. Bates, 2 Abb. Pr. 477 ; Nash v. McCauley, 9 Abb. Pr. 159 ; Pern v. Vanderbilt, 13 Abb. Pr. 72 ; Sturges v. Burton, 8 Ohio St. 215 ; Ferguson i.. Gilbert, 16 Ohio St. 88 ; Murphy v. Estes, 6 Bush, 532. 2 Snyder v. Snyder, 25 Ind. 399 ; Stearns v. Dubois, 55 Ind. 257. 158 CH. IX. j JOINDER OF CAUSES OF ACTION. § 120 to the property — as, whether he should be charged as warehouse- man or carrier.^ In Iowa the rule in common-law pleadings is held to prevail.' In New York its Supreme Court has per- mitted a plaintiff, under an apparent necessity, to make a dupli- cate statement of the same cause of action. The statute pro- hibits unnecessary repetition, but does not prohibit it alto- gether.* § 120. Continued — Where there are two Causes of Action and but one Relief. — It sometimes happens that one may have demands of a different nature founded upon the same contract or transaction, but is entitled to but one satisfaction. For ex- ample, words used in the sale of a horse which make a contract of warranty may, with the addition of knowledge of their falsity, give also a cause of action for the deceit, and thus the plaintiff may be wronged by the breach of the contract and by the fraud ; but he cannot recover for both causes — to embody them in one statement would be duplicity, and if both are relied on, they should be separately stated. So, a shareholder of an insurance company gives his promissory note to the company, and a re- ceiver brings suit upon it, reciting its consideration. If it is a stock note, the whole should be paid ; if a premium note, only the assessments upon it. The wrong, then, and therefore the cause of action, differs, being in the one case the refusal to pay the note ; in the other, to pay the assessments.* And so, a plaint- iff holds a demand against the defendant, who is charged with fraud in representing the solvency of the purchaser of goods, and for the same representation, with a liability as guarantor for their price.* Even if the two statements should never be permitted where there is but one cause of action, although made under an » Whitney v. Chicago & Northwestern K. Co., 27 Wis. 327. ' Pearson v. Milwaukee & St. Paul E. Co., 45 Iowa, 497. ' In Jones v. Palmer, 1 Abb. Pr. 442, the court, in allowing two statements, said that the pleader should be permitted to set out the facts in two forms, " provided there is a fair and reasonable doubt of his ability to plead them in one mode only. But such pleading," continues the court, "will be allowed with great caution, and only when it is very clear that the nature of the case renders it proper and nec- essary to protect the rights of the plaintiff, and secure him from the danger of a non- suit in the trial." * Birdseye v. Smith, 32 Barb. 217. ' These facts are involved in Waller v. Raskan, 12 How. Pr. 28, 159 § 120 OF THE ACTION. [PART I. apparent necessity, yet there is no good reason why the permis- sion should be withheld in the cases just supposed. First, no case will be found where the two causes of action do not spring either from the same transaction or from transactions connected with the same subject of action ; and thus it does not matter though the wrong in one case be called a tort and in the other the breach of a contract. Second, there is nothing in the stat- ute to forbid such union. Aj(firmative provision is made for the union of different causes of action, but there is no condition that they are to be such causes that a recovery may be had upon all ; nor would the joinder be such a repetition of facts as is for- bidden. There may be actually two grounds for the action, or, being only one, certain supposed grounds may be so connected that the plaintiff may not be able to tell in advance which will be established upon the trial. The Code will have failed in its chief object if he is forbidden to develop every ground upon which he bases his right of recovery. The opinions of the courts upon this question are not always clear or consistent. In the case first supposed, of the false warranty and deceit in the sale of a horse, the Supreme Court of New York has held that the two demands could not be united, although separately stated.^ In a case where the action was for the fraudulent representation of a pur- chaser's solvency, and upon a guaranty of the payment of his purchase, a motion to strike out all that pertained to the repre- sentation was sustained, upon the ground that, of the two causes of action, one was founded upon a tort and the other upon a contract.^ In an action by the receiver of an insurance com- ' Sweet V. InRerson, 12 How. Pr. 331. The decision is based chiefly upon the fact that one demand sounds in contract and the other in tort, the opinion assuming that they do not arise out of the same transaction. But if the transactions upon which the demands are based are not one and the same, it is difficult to perceive what is meant by the term. The contract was entered into, and the fraudulent representa- tion was made, by the use of the same words, and it differs from the case where one assaults and slanders another at the same time, for in that case there are two distinct acts of a different nature. The judge (Bacon) also says he is inclined to the opinion that the object in allowing a joinder was to authorize a union of causes where a re- covery for both could be had in the same action ; and this view, if correct, would be fatal to the union. 2 Waller o. Kaskan, 12 How. Pr. 28. The court did not note the fact that both causes of action arose out of transactions connected with the subject of the action. Although the fact is noticed, no objection was made, because there could be but a single remedy. 160 CH. IX.] JOINDER OF CAUSES OF ACTION. §120 pany upon a promissory note given the company, where there were two statements charging the liability diflPerently, the Su- preme Court at general term sustained the pleading, in as much as the causes of action were really two, altliough founded upon the same instrument.^ The ruling in Ohio is only consistent with the one talcen by Allen, J., in Birdseye v. Smith, given in the note. One had recovered a judgment against an insolvent railroad company, and, by a proceeding of an equitable nature, sought to subject the credits of the company to its payment. The petition sought to charge the defendant, a stockholder, with a twofold liability : one upon his subscription to the capital stock of the company, and one upon his statutory individual liability ; and this pleading was also sustained.^ 1 Birdseye v. Smith, 32 Barb. 217. In the opinion, Allen, J., says : " If the ques- tion were res nova, I should be inclined to greater liberality in the construction of the Code, in tolerating, without unnecessary repetition, statements of the same cause of action in different forms, or different causes of action arising out of the same trans- action, than the reported cases seem to warrant. Several statements of the same cause of action, substantially the same and only differing in form, are not necessary. But where the statements differ materially and in substance, and are not unnecessarily inserted, and cannot mislead the defendant or embarrass the defense, but are only in- serted from the caution which every practitioner finds it necessary to exercise to guard against the infirmities of human memory and the defects of human testimony, I would allow them to stand as not 'unnecessary repetitions.' " Coming to the case be- fore him, he further says : "The two counts are not inserted to meet a possible vari- ance in the statement of a single cause of action, but to sustain two distinct and dif- ferent claims. The fact that they are based upon the same instrument does not af- fect the question. * * * Unless there is a necessity imposed by the Code, it would not be right to compel the plaintiff to elect between the two counts where such election may lead to successive actions to determine the rights and liabilities of the parties upon a single instrument." ' "Warner v. Callender, 20 Ohio St. 190. This case is not precisely like the others, although it is similar in principle, the plaintiff by separate statements charging a twofold liability, although he did not seek to recover in both if one sufficed. In equity such proceedings were common, and the rule of equity practice may throw some light upon this question. Judge Swan, in Sturges v. Burton, 8 Ohio St. 215, says that "pleadings under the Code must be as liberally construed as the stating part of a bill in equity." Story's Equity Pleading (J 251) says : " And although setting forth the plaintiff's title [right] in alternatives may not be sufficient, yet we are not from that to draw the general conclusion that a bill can never be brought with a double aspect. On the contrary, where the title to relief will be precisely the same in each case, the plaintiff may aver facts of a different nature, which will equally support his application. Thus, for example, if the plaintiff should seek to set aside a deed upon the ground of fraud and imposition, and undue influence, the plaintiff in such case may charge insanity in the party making the deed, and he may also charge great weakness and imbecility of mind." u 161 § 122 OF THE ACTION. [PART I. § 121. Completeness of each Statement. — The presumption is that every statement embodies a cause of action altogether new ; hence the rule that it must be complete in itself. It must contain all the facts which constitute the cause of action embraced in it, and its defects cannot be supplied from the other state- ments. Although this reason is denied in Indiana,' yet the re- quirement that each paragraph, as the separate statement is there called, shall contain all the facts necessary to the cause of action, is rigidly enforced in that state ; and a second paragraph, which counted upon a mortgage, and referred to the land as described in the first, was held to be bad on general demurrer, upon the ground that the court would not look outside the paragraph for a description of the land.^ The question has been before the Supreme Court of Wisconsin, and the same view is taken in that state ; ^ also in New York.* So imperative is the require- ment that each statement should be complete, that, when the statute requires that copies of the instruments upon which the action is based should be filed with the pleading, it is held that where the same paper is made the foundation of a second count, it should be referred to as filed with that count also.° § 122. The Causes of Action must be consistent. — One's remedial rights in regard to the same wrong are not necessarily single, and yet they may be of such a nature that only one can be pursued. Thus, the injured party to a violated agreement may enforce it, or rescind it, and he may enforce it either by taking a judgment for damages or a judgment for specific per- formance. Here are three modes of seeking redress for the same wrong, to wit, the breach of the contract, either of which, but only one of which, is available. The plaintiff must elect. But sometimes one may claim more than one right in regard to prop- > Snyder v. Snyder, 25 Ind. 399. » Clark V. Peatherstone, 32 Ind. 142. The same rule is applied to answers, it being held improper in a special defense to refer to others for particular facts, instead of stating them anew. "Woodward v. Wilcox, 27 Ind. 207 ; Potter v. Earnest, 45 Ind. 416. « Curtis V. Moore, 15 Wis. 134 ; Catlin v. Pedrick, 17 Wis. 88 ; Sabin v. Austin, 19 Wis. 421. But in Curtis v. Moore, matter of inducement in the first count waa allowed to be referred to in the other counts. * Sinclair v. Pitch, 3 E. D. Smith, 677 ; Landau v. Levy, 1 Abb. Pr. 376. * Peck V. Hensley, 21 Ind. 344. 162 CH. IX.] JOINDER OF CAUSES OP ACTION. § 123 \ erty — that is, he claims to have more than one cause of action, and seeks to prosecute them all. If they are such as can be united in one action, they must be consistent with each other — that is, one cause of action, if valid, should not show the others to be bad. Thus, one cannot seek the recovery of land as his absolute property, and by a second statement seek damages for an injury to his right of way over it ; ^ if the plaintiff owns the land, he cannot own a right of way, for the latter merges in the fee. . Nor should one statement base the demand upon an agree- ment to lease, and another upon an actual demise.^ One cannot sue an agent, and one to whom he has sold the plaintiff's land, charging fraud, etc., in the sale, and seeking damages against the agent for the fraud, and in the same complaint seek to make the purchaser account as trustee. The first demand affirms the sale, and the other disaffirms it.' Nor can a plaintiff seek an in- junction against the breach of the covenants of a lease, and in the same complaint ask for its forfeiture.* Where two statutes create liabilities for the same neglect, the injured party cannot enforce both, but should elect.* The requirement of consistency is simply a logical one, the codes being generally silent upon the subject, although the new Code of Civil Procedure of New York expressly requires that causes of action, to be united, must be consistent. § 123. Each Party must be affected It will not do to imite, in one pleading, a cause of action against two or more with a cause of action against a part of the defendants only. The codes are express that " the causes of action so united * * * must affect all the parties to the action ; " * hence I Smith V. Hallock, 8 How. Pr. 73. » Crow V. Hildreth, 39 Cal. 618. ' G-ardner v. Ogden, 22 N. T. 327. Another objection to the joinder was made by the court, to wit, that the causes of action joined in the complaint do not affect both the parties defendant. On the plaintiff's own showing, he has separate and distinct causes of action against each of the defendants. * Linden v. Hepburn, 3 Sandf. 668 ; s. c, 5 How. Pr. 188. The forfeiture of the term is a relief totally inconsistent with any equitable remedy. The lessor may pursue his remedy for a reentry and possession, or he may proceed for an injunction and damages, leaving the tenant in possession. ^ Sipperly v. Troy & Boston E. Co., 9 How. Pr. 83. • The New York Code of Procedure and the North Carolina, South Carolina, and Florida statutes except actions for the foreclosure of mortgages. 163 § 124 OP THE ACTION. [PART I. plaintiffs cannot unite, although in regard to the same property, where their interests are several. Thus, one cannot be dispos- sessed in one action of parcels of land by different claimants, either by a single statement or by different statements ; nor will different persons who each claim the whole be permitted to join in ejecting him.^ In Kansas, different persons holding dis- tinct mechanic's liens were not permitted to unite in one action to foreclose their liens.* The defendants in each statement must be the same — that is, all the parties must be affected b/ each cause of action ; and it is a misjoinder — in equity pleadings it was called multifariousness — to charge certain persons as respects one cause of action, and in another statement bring in another party, or show that another party is interested, or that some of the necessary parties in the former statement are not interested.' The several defendants must be charged in the same character. Officers of a municiijal corporation cannot, in the same action, be charged officially and personally ; * nor can an executor or trustee be charged personally and, in the same action, in his rep- resentative character." But it is not necessary that the liability of the defendants be of equal amount, or that their interest be the same in each cause of action.* § 124. Joinder under the old Systems. — Before considering the different classes of causes of action that may be united in one pleading, the old rules should be briefly noted. And in legal actions the rules regulating such joinder, like so many others, were formal and artificial, it being permitted or forbidden, not ' Hubbell V. Lerch, 58 N. Y. 237. In this case the complaint alleged title in one plaintiff, and afterwards title in the other. It was a case of general repugnancy. It showed, taken together, that no title existed in either ; and, as the judge remarked, the parties were guilty of felo de se. 2 Harsh o. Morgan, 1 Kan. 293. Aliter in California. Barber ». Reynolds, 33 Cal. 497. 3 See Eobinson ti. Kice, 20 Mo. 229; Farmers' Bank v. Bayliss, 41 Mo. 274; Trow- bridge V. Forepaugh, 14 Minn. 133 ; Ghiradelli v. Bourland, 32 Cal. 585 j Gardner v. Ogden, 22 N. Y. 327; Barnes v. Smith, 1 Eobt. 699. * Hancock v. Johnson, 1 Mete. (Ky.) 242. » Ferrin v. Myrick, 41 N. Y. 315. " Blake v. Van Tilborg, 21 Wis. 672 ; Vermeule v. Beck, 15 How. Pr. 333. As to multifariousness as regards parties, see, ante, J 110. It has been held in Kentucky that different defendants holding distinct parcels of land sought to be recovered in eject- ment may all be joined in one action. Woolfolk v. Ashby, 2 Mete. (Ky.) 288. 164 CH. IX. J JOINDER OF CAUSES OF ACTION. § 124 by the real character of the wrongs to be redressed, but by the form of the aetion and the form of the judgment. Thus, if one should declare in assumpsit, he could not join a count in trover, though in both cases he seeks the value of goods, and because one is an action upon contract and the other sounds in tort. But if, for the same cause of action, he had declared in case, as in some instances both case and assumpsit would lie, he might then join the count in trover, for the reason that both actions sounded in tort.^ The joinder of causes of action declared on as arising from a tort, with others pleaded" as springing from a contract, was never allowed,* and so far the old rule is preserved in the codes of most of the states as to matters entirely inde- pendent of each other. But there was another consequence of a system which made form rather than substance the test, which the Code repudiates. Thus, debt or assumpsit would lie upon a promissory note, or upon other unsealed contracts for the pay- ment of a sum certain ; but a count in debt could not be united with a count in assumpsit, because the form of the judgment in the two actions was not the same.^ And, in general, counts in assumpsit, debt, covenant, or account could not be joined in the same declaration, though all sounding in contract, because of the different forms of the pleading and of the judgment. And so, in torts, the joinder of counts in trespass and case was forbidden, because they had no formal affinity, although the wrongs them- selves were sometimes so nearly alike as to make it difficult to determine which form to adopt. In suits in chancery, while formal counts embodying different causes of action were un- known, yet distinct claims of a similar nature between the same parties, and involving similar princijjles and results, could be embodied in one bill, to be heard and adjudged together.* Thus, one who held different demands, secured by different mortgages upon the same property, had as many different causes of action, but his right to enforce his equities by one proceeding was never doubted ; and so in other similar cases. The subject- 1 1 Chitty's PI. 199. » Ibid. 201, and note 4, p. 199. » Ibid. 200. * Story's Bq. PI., i 531 et acq. 165 § 125 OF THE ACTION. [PART I. matter of the several causes of action, the property against which the several liens were sought to be enforced, was the same, and hence they could all be adjusted together, as well as other liens upon, or clanns to, the property to be prosecuted by defendants, if such liens or claims existed. § 125. First Class: TTnlon of Causes under — Meaning of the Term " Transaction." — Except in a few of the so-called code states, the first class of causes of action that may be united in one complaint or petition are those that arise " out of the same transaction or transactions, connected with the same subject of action." ^ Transaction is a broader term than contract, includ- ing not only that, but any occurrence between parties that may become the foundation of an action.^ If, from any one transac- action, or from more than one, if connected as above, it is possible for more than one cause of action to arise, in favor of the same and against the same parties, whether sounding in contract or in tort,' or whether called legal or equitable, they may be united in one complaint. There is danger that the pleader will split his cause of action by supposing that he has more than one, either because his demand consists of various items or because the plaintiflF may be entitled to more than one kind of relief; and, 1 Ante, J 112. " The etymology of a word is sometimes suggestive, althougli, by reason of changes in the meaning of words, it may become an unsafe guide. The root of the noun is the verb " transact," from trans and ago, to go or pass over from one to the other, some- thing connected with two or more, which would usually apply to contracts, hut may, also, to injuries committed by one upon, or in respect to, another. The word, in this connection, cannot have the meaning of compromise or adjustment, given it in the civil law, and it must mean more than contract; otherwise, the term "contract" would be used. When speaking of counter-claims, the term is used in addition to, and not as a substitute for, the term "contract." ' I find the following language in Lane v. Cameron, 38 "Wis. 603 : " The proposition that a complaint might be so framed as to state in the same count, or in any number of counts, a cause of action ex contractu, and also one ex delicto, and still be a good pleading, is one we should be unwilling to sanction — certainly where any objection was taken to the misjoinder." This remark must have been made unadvisedly. The Code of "Wisconsin (Stat. 1871, ch. 125, J 31) copies the provision of the New Tork Code specifying the causes of action that may be joined in one complaint, and the learned judge, in this dictum, cannot mean to judicially hold that causes of action ex con- tractu cannot be properly united with causes ex delicto, provided they arise " out of the same transaction or transactions, connected with the same subject of action." 166 CH. IX.] JOINDER OF CAUSES OP ACTION, § 126 also, there is some danger that he may suppose that two or more transactions from which causes of action arise are one, because they occur together. From the first danger he has already been sufiiciently guarded ; ^ an instance of the second will suffice for that. It is not uncommon for one who assaults and beats another to apply, at the same time, a slanderous epithet. Are the battery and the speaking the same transaction — the same act? If one should strike another several blows in succession, it would be but one beating; if he should strike one person and kick another at the same time, there would be two beatings and two ofienses — that is, two transactions, and not between the same parties. The term " transaction " has the element of time, but is not controlled by it ; for two things done at the same time may be so different in their nature that they cannot be called the same act. This precise state of facts — that is, the beating and slan- der — was held in the Supreme Court of New York to make two transactions, the court using the phrase " the same thing done " as equivalent to " the same transaction." ^ § 126. Continued — What is the Subject of the Action? — Not only under this class may all causes of action be united in one proceeding that arise out of the same transaction, but also those that arise from different transactions, provided they are connected with the same subject of action. It, then, becomes necessary to understand what is the subject of an action, also the character of the connection that will authorize the union. The cause of action has been described as being a legal wrong » Ante, 2 118. ' Anderson v. Hill, 53 Barb. 238 (overruling Brewer v. Temple, 15 How. Pr. 286). See, also, Dragoo v. Levi, 2 Duv. 520, where it is held that causes of action for slander, and malicious arrest, and false imprisonment cannot he united. A different ruling has been had in Kansas. The petition united two causes of action, which arose as follows : H. met A., called him a thief, charged him with stealing a horse, arrested him, and threw him in jail. A. sued H. for slander and false imprisonment. The court sustained the joinder, because they arose out of the same transaction, although actions for injuries to character cannot be united with injuries to person, and affirmed the action below in overruling a demurrer for misjoinder. Harris v. Avery, 5 Kan. 146. The correctness of this ruling, in assuming that the arrest and speaking the words were the same transaction, because they occurred at the same time, and were the result of the same passion or impulse, is questioned. 167 § 126 or THE ACTION. [PART I. committed against, or an infringement of some legal right of, the complaining party ; and the object of the action is the redress of the wrong by obtaining some legal relief. The subject of the action is, clearly, neither of these ; it is not the wrong which gives the plaintiff the right to ask the interposition of the court, nor is it that which the court is asked to do for him, but it must be the matter or thing, differing both from the wrong and the relief, in regard to which the controversy has arisen ; and this is, ordinarily, the property, or the contract and its subject-matter, or other thing involved in the dispute. Thus, in an action to re- cover the possession of land, the right is the right to possession ; the wrong is the dispossession ; the object is to obtain possession ; and the subject, or that in regard to which the action is brought, is the land. In an action for money due on a contract, the right is to the money ; the wrong is the refusal to pay it ; the object is for the relief — that is, for a judgment for the amount due ; and the controversy is in regard to the subject-matter of the contract, which is not only the promise, but the consideration, and the matter in respect to which the promise has been made. As, if the agreement has been to pay money for land, the land, and the title to it, so far as they affect the contract, enter into it, become part of its subject-matter, and, with the promise, become the subject of the action. If the contract be to do something else than to pay money — as, to perform labor — the thing to be done becomes part of the subject-matter of the contract, and enters into the subject of the action. If suit be brought against the immediate iudorser of commercial paper, as between him and his indorsee — the consideration may be inquired into and become part of the subject of the action ; but if brought by one between whom and the indorser the consideration cannot be inquired into, the subject of the action becomes more limited, and may be confined to the note itself, the fact of its execution and indorsement. In an action for a tort, the injury complained of is the wrong, and the subject of the action would be that right, interest, or property which has been affected — as, in re- plevin or trover, the property taken ; for libel or slander, the plaintiff's character or occupation; for- an injury to a servant, the service ; for the seduction of, or for harboring, a wife, the 168 CH. IX.] JOINDER OF CAUSES OF ACTION. § 126 marital relation ; for negligence, the duty, property, or person in respect to which the negligence occurred ; for false imprison- ment, the plaintifl"'s liberty; and for a trespass upon property, the property. In an action for assault and battery, it is diffi- cult to distinguish the subject from the cause of action, from the right to immunity from personal violence and its infringement that is, the beating. This construction of the term is given with some hesitation, inasmuch as its full and exact scope does not seem to have been judicially considered, although most of the cases, as given in the note, are only consistent with the view here taken. The same phrase is used in the statute in regard to coun- ter-claims, and it should, in that connection, receive the same construction as when applied to the union of causes of action.' 1 In Adams v. Bissell, 28 Barb. 382, the defendants were sued as carriers of goods, and in one statement the plaintiff charged them with negligence and waste, and in another claimed a sum of money as overpaid on freight. The joinder of the two causes of action was sustained, which could only be done because both transactions were con- nected with the matter of the affreightment. See criticism on opinion in this case in Pomeroy's Remedies, etc., sections 468, 469. In Badger v. Benedict, 4 Abb. Pr. 176, the plaintiff had furnished the defendant with stereotype plates for a book which he had agreed to print. The plaintiff sued him for not complying with his contract, and also for injuring the plates, and the joinder of the two causes of action was sus- tained. They did not arise out of the same transaction, for there were two — the contract and the injury to the plates; but both these transactions were connected with the subject of the action — that is, with the subject-matter of the contract — which was the printing the books. In Hamlin «. Tucker, 72 N. C. 502, the plaintiff em- bodied in his complaint three causes of action : first, for harboring and maintaining his wife ; second, for converting personal property to which he was entitled jure mariti ; third, for inducing the wife, while so harbored, to execute to defendant a deed of land from which he had received rents. The joinder was sustained upon demurrer, because all the causes of action arose out of transactions connected with the same subject of action ; they were all unlawful interferences by the defendant with the marital rights of the plaintiff. In Lovensohn v. Ward, 45 Cal. 10, a counter-claim was held to be improper because it pertained to property not involved in the litigation. The action was replevin, and the court held that the subject-matter of the action was the property named in the complaint. In Jones v. Steamship Cortes, 17 Cal. 487, the action was by a passenger who had been carried beyond her destination, and the complaint counted upon the contract and its breach, and upon the fraud prac- ticed upon the plaintiff to induce her to purchase a passenger ticket. The Cali- fornia statute omits the class of causes under consideration, but the court holds that everything connected with the transaction should be settled in one action; that the plaintiff should be permitted to recover for the breach of the contract, and for the wrongs and injuries committed by the defendants in connection with it. In See V. Partridge, 2 Duer, 463, difficulties had arisen between building-contractors and the owner, some of which had been submitted to arbitration. The plaintiff sued and 169 § 127 OF THE ACTION. [PAET I. § 127. Second: Joinder of Causes arising out of Contract. — The Code permits the union in one complaint or petition of several causes of action "where they all arise out of [2] con- tract, express or implied." This union, as we have already- seen, was only allowed, at common law, as to certain classes of actions and contracts. Thus, several simple contracts, for which assumpsit would lie, could be enforced in one action, because the whole could be met by the general issue of non-assumpsit. But if the plaintiff would sue in debt, he could only unite those de- mands the pleading of which could be met by the general issue of nil debit, which plea was not permitted when the foundation of the action was a sealed instrument. And so, in declaring in covenant, only covenants could be united. The distinction once so broad between simple contracts and those under seal is grow- ing less and less, and in some states is abolished altogether. So far as pleading is concerned, the Code knows no difference, and causes of action for the breach of any sort of contract may be united in one proceeding.^ sought to set aside the award ; also, to recover a balance due on the contract ; also, to recover for extra work and materials ; and, also, for damages arising from having been hindered and delayed by the defendant in completing the work. The union of the several causes of action was sustained, as all connected with the same subject of action. The New York Court of Appeals has been less liberal in the construction of the phrase, both in this connection and in regard to counter-claims, than the courts of most the states. In Keep v. Kaufman, 56 N. T. 332, the plaintiff sued upon a covenant for quiet enjoyment, and in the same complaint charged a trespass in entering the plaintiff's premises by false keys and breaking open his truck. The union was for- bidden, although the act complained of in both counts was the same —not because it was the same, but because one cause of action -was founded on contract and the other on a tort. In Wiles v. Suydam, 64 N. Y. 178, the complaint charged the defendant with a liability because of a debt due upon his stock subscription to a corporation, of which he was an oflBcer, and, in another count, with a statutory liability for not keeping proper records. The union of the causes of action was held to be bad on demurrer. See further authorities as to the meaning of the phrase, cited in treating upon counter-claims. Also, see Pomeroy's Kemedies, where this matter is discussed, sections 475, 775. 1 The Kentucky Code omits class first of the New York Code, and its Supreme Court has been driven to a rather forced construction of the class now under considera- tion in order to sustain a union which seemed called for by the ends of justice. The stockholders of an insolvent bank brought suit against the assignor of the bank, and the president and directors, charging the latter with gross fraud in managing its affairs seeking to compel them to make good the losses which had occurred throu"-h their misconduct, and also asking that the trustee be required to execute his trust and ac- 170 CH. IX.] JOINDER OF CAUSES OF ACTION. § 128 § 128. Implied Contracts. — The permission is to unite ac- tions upon contracts, express or implied. It is said that an implied agreement is but an obligation created by law, warranted by jus- tice, butnotby the assent — and often against the assent — of those who are to be charged. So far as this is so, such obligations have no affinity with contracts, and cannot, upon principle, be classed with them. To call such an obligation a contract was always a fiction. But more commonly, when we speak of an implied agree- ment, we refer to the actual understanding of the parties, though not expressed in words. One man works for another ; if the ser- vice is understood to be a gift, there is no contract, no implied promise to pay. But men ordinarily claim the fruits of their labor, and when one works for another at his request, and there is nothino; to show that the service was sought and intended as a gift, we are warranted in assuming a mutual understanding that it is to be sold and paid for ; ^ and the contract is implied, because it tacitly exists in the minds of the parties. A contract is a mutual understanding. And so, if one obtains money or goods, the expectation on one side is to pay, as it is on the other to loan or sell, and not to give ; and if one receive money to another's use, the fact of so receiving it shows an expectation to account for it. In speaking, then, of an implied contract, we only supply the words and those understood by the parties, and the one who received the benefit of the transaction will not be permitted to say that he secretly designed not to pay, but to cheat, the other party. Although these remarks will properly apply to a large count under the direction of the court. Ohjection had been made on account of mis- joinder, and sustained below, because the suit to settle the trust was founded in con- tract and connected with one against the president and others in tort. The Supreme • Court held the joinder to be proper, because the tort was directly connected with the contract, and the law implied a contract on the part of the officers of the bank to do their duty. Jones v. Johnson, 10 Bush, 649. ' Such an understanding can hardly be presumed in favor of a son or daughter who remains at home and continues to labor after majority, and because children so frequently remain and without any expectation of pay. In Priermuth v. Friermuth, 46 Cal. 42, the rule of liability is thus given : " When a son remains with, and per- forms services for, his father after reaching his majority, the law will not, ordinarily, imply a promise on the part of the father to make pecuniary compensation for the labor. But if the circumstances show that it must have been the expectation of both parties that he would receive compensation, then a promise will be Implied." Citing Andrus v. Foster, 17 Vt 556, and Dye v. Kerr, 15 Barb. 444. 171 § 129 OF THE ACTION. [PAKT I. class of cases where, at common law, a contract was said to be implied, and where a promise was laid in the pleadings, yet they cannot to all. There were cases in which assumpsit would lie where no promise, as a fact, could be implied, where the allega- tion of a promise was a naked fiction, where there was an obli- gation merely, and where, logically — if any logical deduction had governed the common-law pleaders which did not spring from a fictitious premise — debt, or case, or trespass should have been the form of action. I refer to legal obligations in respect to those through whom the debt accrued, and to obligations arising from injuries. Thus, one might lay a promise from the husband or father to pay for necessaries furnished to a wife or child, although furnished against his express command, and also lay a promise to pay for goods wrongfully converted by the defendant, although under a claim of ownership. As the Code expressly refers to implied contracts, these, as well as those where the agreement is understood, will probably continue to be treated as agreements ; and thus one of the most marked fictions in common-law plead- ing is perpetuated. I shall again refer to this subject.'^ There are cases where a promise may properly be said to be implied, where a privity is created between the parties, although they are strangers. This is the case when the person sought to be charged has received money for the use of another ; or when, without having seen the creditor, he, for a consideration, has promised the debtor to pay his debt ; or when money has been remitted to him with directions to pay it over, and he keeps the money ; or when an estate has been devised, charged with the payment of debts and legacies, aiad the devisee accepts the estate.^ In all these cases, while it may be said that a duty arises, and a conse- quent legal obligation, yet the action of the party in receiving the money or the property, or other consideration, is voluntary ; he takes it cum onere, and the very act of taking it is an accept- ance of the conditions upon which it is suffered to come into his hands, and a tacit but real agreement to perform them. § 129. Third Class: Injuries. — Causes of action that arise 1 Post, 1% 152-154. ' See, post, H — . 172 CH. IX.] JOINDEE OP CAUSES OF ACTION. § 129 from "injuries with or without force to person or property, or either," may be united in one pleading. Injuries with force were called, and are still generally called, trespasses, and the wrong was formerly redressed usually through the action of trespass, unless the trespass consisted in seizing goods, when the property itself might be reclaimed; while for injuries committed without force, trespass on the case was the appropriate remedy.^ Similar causes of action arising ex delicto were, at common law, suffered to be united in one action, but, as in contracts, they must be such as could be prosecuted by the same form of action ; thus, counts in trespass could not be united with counts in case.^ The phrase in the statute " with or without force " is intended to change this rule, and the restriction to injuries to person or property excludes those affecting character. The term " injuries to property" comprehends such injuries as one sustains in his rights of property, whether directly affecting or depriving one of the possession and enjoyment of things the subject of prop- erty or not.^ Thus, fraud and deceit, which affect one's estate — as, by inducing him to pay more than an article is worth — is an injury to property,* and a statement setting out such fraud can be united in the same action with another counting upon an 1 Those not familiar with the common-law system are liahle to be confused by observing that trespass on the case lay for injuries, while trespass on the case upon promises, or assumpsit, was the form of action most frequently resorted to in enforcing contracts. Although case for Injuries and assumpsit upon contracts were both actions of trespass on the case, they were radically different in their character. Debt was the old remedy upon simple contracts, but, to avoid some inconveniences in the practice, and especially the right of defendant to wage his law, a new remedy was devised, in form ex delicto, and, instead of alleging indebtedness, the defendant was charged with a wrong and injury in breaking his promise, from which arose consequential damages, precisely as a plaintiff might be injured by negligence, or some other wrongnot com- mitted with force. The modem action of assumpsit thus came into vogue with all its genei-alities and loose rules of pleading ; and that of debt came to be but little resorted to, except in actions upon bonds or penal statutes. When, however, the common-law pleaders speak of the action of case, or trespass on the case, they do not include assumpsit, although in form it belongs to that class, but refer to actions where the wrong is an actual injury committed without force. ' 1 Chitty's PI. 230, 231. There was one exception. The action for seducing the plaintiff's daughter, per quod, etc., was laid vi et armis, like trespass, and a count for this injury could be joined with a count in trespass. • Cleveland v. Barrows, 59 Barb. 864. * Ibid.; 1 Hill, on Torts, 4th ed., ch. 17, g 1 ; 2 ibid., oh. 26, § 1. 173 § 131 OF THE ACTION. [PART I. injury in seizing and talking away chattels.^ So, then, in this class is included every form of action for an injury — as distin- guished from the wrong springing from the breach of a contract — excepting libel, slander, and malicious prosecution, which are embraced.in class fourth, and excepting the dispossession of real or personal property, where one seeks to recover the possession, which are embraced in the fifth and sixth classes — that is, class third includes causes of action for assault and battery, for false imprisonment, for trespass upon land, for an injury to personal property, for conversion of such property where the relief is in damages, for nuisances, for all kinds of negligence in the per- formance of a duty either by the defendant or his servants, for criminal conversation, for enticing a child or servant, or enticing or harboring a wife, for seduction of a servant or daughter, for fraud and deceit in sales, in false recommendations, etc. § 130. The Joinder where a Tort may be waived. — I speak not in this connection of causes of action that spring from, or are connected with, the same transaction, but where they are wholly disconnected. We have seen that all causes of action arising from contract can be united in one complaint, and so can all which arise from injuiies to person or property, except those affecting character, or where the specific property is sought to be recovered ; but unless they belong to the first class, causes aris- ing from contract cannot be united with those that spring from a tort. And yet this is not always true, for there are some tortious injuries to property where the injured party is permitted to waive the tort and sue as upon contract. And, if he thus elect, he may unite the causes of action thus arising with others founded upon an actual contract. The theory upon which the permission was given to treat a tort as furnishing a cause of action based upon contract, so far as the doctrine of implied promises was stretched to meet the case, was but a fiction.^ § 131. Fourth Class: Injuries to Character. — Actions arising from injuries to character are usually brought for libel or • Cleveland v. Barrows, 59 Barb. 364. > See, ante, I 13, and, post, JJ 152-154. 174 CH. IX.] JOINDER OF CAUSES OF ACTION. § 132 slander, although malicious prosecutions, while they affect prop- erty in the expense they cause, are chiefly injurious to the char- acter of those who suffer, and are, hence, held to be embraced in this class. ^ A more natural classification would separate actions for injuries to person from those affecting pi'operty, and unite all affecting the person only — as, assault and battery, slander, etc. This union would be more natural for the reason that, by the law of England, as adopted in most of the states, there is a marked distinction between injuries affecting the person only and those affecting the estate or property of the person injured, in this : that actions based upon the former abate by the death of either party, and the right of action is not assignable ; while actions on account of injuries to property survive in favor of or against the proper representatives of a deceased party, and the right of ac- tion is assignable.* The Code of Indiana alone follows this clas- sification, making of the second class "injuries to property," and of the third, " injuries to person or character ; " ^ while the codes of California,* of Oregon,^ and of Nevada,^ preserving in a distinct class injuries to character, separate injuries to person from injuries to property. § 132. Flftli Class: Ejectment. — The fifth class embraces " claims to recover real property, with or without damages for withholding thereof, and the rents and profits of the same." They were formerly enforced by the common-law real actions, by the action of ejectment, and by trespass for mesne profits. The object of the clause is not so much to authorize the recovery of damasres in real actions as the union in one proceedino; of causes of action for the recovery of distinct parcels of land. In prose- cuting this action, whether the wrong is a single one, furnishing but one cause of action, or whether there has been a dispossession of different parcels, at different times, having no connection with 1 Martin v. Mattison, 8 Abb. Pr. 3 ; Hull v. Vreeland, 42 Barb. 543 ; s. c, 18 Abb. Pr. 183 ; Shore v. Smith, 15 Ohio St. 173. « Ante, ii 39-43. •2 70. * Code Civ. Proc. 1874, ? 427. » Code Civ.'Proc, ? 91. « Comp. Laws 1873, 2 1127. 175 § 134 OF THE ACTION. [PAET I. each other, thus making a separate cause of action in regard to each parcel, it is liot disputed that, as to each cause of action, the plaiutiflF may claim possession, with the damages and rents spoken of, or may claim possession alone and prosecute the money demand by an independent action.^ And if the complaint claims possession only, failing to set out the facts which show the money demand or its amount, it is held to be error to admit evidence in regard to the damages, or to render a judgment for them.* The statute authorizing the plaintiff to elect whether to seek possession alone or possession with damages, the omission to ask for the latter indicates the election. Whether one or both be sought, there is but one cause of action, one wrong — the dis- possession ; the success of the claim for damages and rents depends upon the success of the claim for possession,' and it is but a claim for additional relief. It is held that there cannot be a joinder in one complaint of a statement seeking the recovery of real prop- erty, with damages, etc., with another statement which seeks damages only for withholding certain other property.* § 133. Keplevin. — The sixth class embraces "claims to re- cover personal property, with or without damages, for the' with- holdinir thereof." This is known as the modernized action of replevin, and the same rule as to the application for damages holds as in the real action.' § 134. Claims against Trustees. — The seventh class provides for a union of " claims against a trustee, by virtue of a contract or by operation of law." This class is extended in Missouri to actions in favor of trustees, the language being, " claims by or against a party in some representative or fiduciary capacity, by virtue of a contract or by operation of law." ' Vandevoort v. Gould, 36 N. T. 639 ; "Walker v. Mitchell, 18 B. Mon. 546 ; Burr v. Woodrow, 1 Bush, 602 ; Sullivan u. Davis, 4 Cal. 291 ; Armstrong v. Hinds, 8 Minn. 254. ' Larned v. Hudson, 57 N. T. 151, approving Livingston v. Tanner, 12 Barb. 481. The causes of action are said to be distinct, and each must be sustained by proper averments. But, in fact, there is but one cause of action. * "They are one cause of action." Sullivan v. Davis, 4 Cal. 291. * Holmes v. Williams, 16 Minn. 164. ' Pharis v. Carver, 13 B. Mon. 236. 176 PART II. OF PLEADINGS. CH. X.J GENERAL CONSIDERATIONS. § 135 CHAPTER X. General Considerations. Sectiok- 135. Definition of Pleadings. 136. Pleading Facts necessarily implies a Proposition of Law. 137. The logical Formula — Illustration. 138. "Why are written Pleadings required? 139. Their End not attainable under the Common-law System. 140. But Evidence need not be pleaded. 141. The old Systems must be understood. 142. Singleness of Issue a Fiction. § 135. Definition of Pleadings. — " Pleadings are the mutual allegations between the plaintiff and defendant, which at present are set down and delivered into the projser office, in writing, though formerly they were usually put in by counsel ore tenus or viva voce in court, and there minuted down by the chief clerk or prothonotary." ^ In the Court of Chancery the pi. hidings from the beginning were in writing ; the first application to the court was by bill, which was a petition addressed to the chancellor ; it con- tained a statement of the facts upon which the relief was sought, more in detail and in less technical language than was proper in a common-law declaration ; many formulas deemed essential in the latter were altogether omitted in the former, yet, both in actions at law and in suits in equity, the pleadings were but the mutual allegations of the parties as to the facts constituting the ground of the prosecution or of the defense, " delivered into the proper office, in writing" and expressed in legal form. In the more general sense of the term, pleadings include demurrers, or formal objections to the legal sufficiency of an adverse pleading, and in this sense I shall use the term, although it is sometimes applied only to allegations or denials of matters of fact. 1 3 Bla. Com. 393. 179 § 137 OP PLEADINGS. [PAET II. § 136. A Pleading of Facts necessarily implies a Proposi- tion of Law. — No system of pleading can be devised that re- quires a statement of the facts that constitute the cause of action, or of facts that constitute a defense, wliere tlie statement does not necessarily imply a proposition of law.^ If the proposition be false, the pleading is radically defective, and no judgment can rest upon it. Issues may then be tendered, either upon the truth of the facts charged or upon the truth of the proposition in- volved. The former is called an issue of fact, the latter an issue of law, and both are tendered by denials — the issue of fact by a denial of the facts, or of some material fact stated ; the issue of law by a denial in effect of the proposition of law, which is always implied, but never stated. § 137. The logical Formula — Illustration. — Every state- ment of facts constituting a cause of action, or a defense, is but part of a logical formula — the minor premise, or second member of a syllogism, and the proposition of law involved is the major premise, or the first member. The latter is denied by a demurrer ; the former is denied, or avoided, by an answer. To illustrate: A sues B, and states that B agreed to give him a certain horse worth $100, but refuses to do so, and asks damages. B demurs, and says the facts stated by A do not constitute a cause of action. The statement of A involves the following syllogism : 1. Major Premise. — Whoever agrees to give property to an- other is liable to him in damages if he refuses to comply with his agreement. 2. Minor Premise. — Defendant, B, agreed to give the plaintiff a certain horse, and afterwards refused to do so. 3. Conclusion. — Therefore B is liable to the plaintiff in dam- ages. The demurrer of B denies the first proposition, and the plaintiff goes out of court. But if A had alleged that he had paid B $100 as the price of a certain horse which the latter agreed to deliver to him, but refused to do so, then the major premise would be such that B would not risk a demurrer, but would answer, and ' G-ould's PI., ch. 1, I 4. 180 CH. X.] GENERAL CONSIDERATIONS. § 137 either deny the facts charged — that is, the minor premise — or admit tliem, and state some new matter showing that notwith- standing there is no liability. This statement of new matter in confession and avoidance is but the minor premise of a new syllo- gism, also involving its major as a proposition of law. If this new matter in defense is deemed insufficient, the plaintiff will demur, and will thus, as with the defendant's demurrer, deny the major premise. But if he replies, he will deny, or avoid by new matter, the minor premise — that is, the facts stated in the answer. To further illustrate : Suppose, to A's allegation of the consideration and the agreement, B should answer and state that A subsequently told him that he need not deliver the horse as he had agreed to do, then we have the followhig syllogism : 1. Major Premise. — One who makes a contract is discharged from his obligation if the other party says to him that he need not perform it. 2. Minor Premise. — The plaintiff told the defendant that he need not perform the agreement sued on. 3. Conclusion. — Therefore the defendant is not liable for its breach. The jDlaintiff, in demurring to the answer, denies the first premise — the proposition of law — and will take judgment upon the issue of hiw. If, however, the defendant had stated that plaintiff had accepted a yoke of cattle in full satisfaction of the agreement, he makes a defense that cannot be demurred to, because the proposition of law involved cannot be denied. The plaintiff will then, perhaps, deny that he accepted the cattle in satisfaction, which makes an issue of fact; or, he may reply that the defendant, to induce him to accept the cattle, warranted them to be kind, well broke, and ruly, when in fact they were vicious, unruly, etc., and that he had tendered them back. This replica- tion of new matter, as well as the answer of new matter which it meets, involves a proposition of law as the first premise of a new syllogism, which it is unnecessary to give. The defendant will hardly demur to it — that is, deny the legal proposition in- volved — and, as no rejoinder is allowed by the Code, it is supposed to be denied ; or, the defendant may avdid it by evi- 181 § 138 OF PLEADINGS. [PART II. dence of facts which, if pleaded, would have made a special re- joinder.^ § 138. Why are written Pleadings required? — There can be no legitimate object in requiring that the " mutual altercations between the plaintiff and defendant" be reduced to writing, except to bring clearly before the court the real matter in con- troversy, that the grounds of their dispute, and the precise points both of fact and of law involved in it, may be known before a trial shall be entered upon, in order, first, that it may be seen whether it is 9f such a nature that the plaintiff, if he succeed in establishing the truth of his allegations, will be entitled to relief under the law, or whether the defendant has a legal defense ; and, second, to confine the investigation to the points of actual disagreement. These ends are secured by requiring the parties to state truly the facts upon which they rely, and by requiring their traverse to be truthfully made. I say truly, meaning that neither party shall be permitted to state any fact he does not believe to be true, or to controvert any known fact, and, to that end, that each party shall sustain his statements or his denials by his oath. Thus, one who does not dispute the execution of an instrument in writing sued on, but who expects to avoid its obligation by showing infancy, release, or other new matter of defense, will not deny, and thus compel the opposite party to prove his signature, but will state upon oath the facts which, in his view, constitute the defense. If he state them truly, the opposite party will not deny them ; but if he sees that they make a valid defense, and cannot avoid their effect by new matter truthfully pleaded, he will go out of court without trial. If, however, he can plead other newmatter — as, a subsequent promise or duress — the trial will be confined to the truth of the last affirmative statement of facts. There is no controversv in reeard to the other facts, and it would be a great wrong and a sorry trifling with public interests to compel a pai-ty to prove, and to compel the courts to sit and hear evidence in regard to what is 1 See Gould's PI., ch. 1. 182 CH. X.] GENERAL CONSIDERATIONS. § 140 not, in fact, disputed. It is burdensome enough to litigants to subject them to the expense of establishing what is really doubted, and it is burdensome enough to the state to support tribunals for the settlement of real controversies. § 139. This End not attainable under the Common-law System. — To secure this end was always the assumed object of written pleadings, but in common-law pleading it was seldom attained. While great strictness was required in matters of form, great looseness was allowed in matters of substance. A plaintiff was not permitted to complain of the defendant " in a plea of debt," where the action should be called trespass on the case, and each had their appropriate formulas, which must be fol- lowed. But in the most common of all the actions, where the defendant only denied the promise charged, he was permitted to prove upon the trial almost any special defense — as, infancy, coverture, duress, fraud, etc. — which admitted the promise, but avoided its effect. The pleadings thus came very far short of stating upon paper the facts constituting the defense, nor did the declaration always give the true cause of action. To say nothing of fictitious averments, which are inconsistent with any true theory of pleading, we had the common counts in assumpsit and debt, which were sustained by evidence that did not pertain to their subject-matter. A connection was supposed, but it was merely conjectural, and the counts were equally sustained if it did not exist at all. No care was taken to compel the parties to make their issues cover the real facts in dispute. The defendant, for example, was encouraged to " lie low," and not only to keep his real defense in the dark, but to subject his adversary to the trouble and expense, frequently great, of proving what he never, in fact, disputed, which formed no part of the actual controversy. § 140. But Evidence need not he pleaded. — The only legit- imate object of pleading, which requires that the facts constitut- ing the cause of action or the defense should be clearly and truly stated, does not require that evidence be pleaded. Bills of dis- covery are no longer necessary, and the ultimate facts upon which the pleader relies — those which in law create the liability 183 § 141 , OF PLEADINGS. [PAET U. or make tlie defense, and not the many evidential facts that go to establish them — should alone be stated. It is true that oftentimes, as claimed by eminent writers, the controversy would be better understood beforehand if the parties were permitted to give, upon paper, a detailed account of the circumstances that have given rise to it — that is, to state the various probative facts which are relied on to establish the demand or the defense. This mode is said to prevail upon the Continent, is followed in the admiralty courts, colored our proceedings in equity, and is not without its advantages. But to minds trained to the theoretic precision of common-law pleadings, who have seen the necessity of making, issues as distinct and simple as possible, in order to be clearly seen by the jury, such pleadings seem bungling, un- scientific, and confusing. And, besides, there is this practical objection to pleading evidence : A party may well know the question in dispute between him and his opponent, the ultimate fact or facts upon which he relies, and yet be not as well advised as to the evidence. The probative facts may appear upon the trial somewhat difi"erent from what he anticipated, and still sus- tain his demand. If spread upon the record, their denial would often make an immaterial issue, questions of variance would be constantly raised, and, if justice were done, it would frequently become necessary either to make special issues, after the equity practice, or submit to the jury the substantial issues between the parties, although not made upon paper. Hence the rule, here- after to be considered, that evidence should not be pleaded. § 141. The old Systems must be understood. — It is assumed that the student of the Code is familiar with the common-law and equity systems of pleading. If not, he is groping in the dark, and much that is offered will escape his apprehension. This knowledge is deemed essential, not only because all well-educated lawyers must know the history of our jurisprudence, must live through, as it were, and measure every step of its marvelous progress, but because the foundation idea of pleading has not been changed. The common-law system was always, in theory, based upon sound logic. In practice it had become greatly cor- rupted, so that the pleader, in burdening his memory with mere 184 CH. X.] GENERAL CONSIDERATIONS. § 142 forms and mere fictions, with the rules governing the probata in cases where they had no connection with the allegata, in seeking familiarity with an artificial style, and in familiarizing himself with artificial reasoning, would lose sight of the theory, and the system, in many of its applications, came, long before our day, to be anything but logical. Code pleading, so called, is but a reform, not a destruction — a radical one, it is true, and, in the view of many, more radical than was called for. It is believed by some of our best lawyers that if the changes had been more like those effected by the Hilary Rules, under the act of 4 Will- iam IV., and the English Common-law Procedure Act of 1852, with the liberty to make equitable defenses, and the requirement that pleadings be sworn to, the chief object of the reform would have been secured, and we should have been saved many doubts and perplexities. But, be that as it may, the two systems run into each other, and both must be understood. This is especially true in regard to the equity system, from which so many features of the Code are taken. § 142. Singleness of Issue a Fiction. — It was the boast of common-law pleaders that their system reduced the controversy to a single issue, and thereby facilitated investigations by simpli- fying the questions upon which the jury is called to pass. When the only issue of fact in a given action was tendered by a repli- cation or subsequent pleading, it was specific and single, but issues tendered by the plea were seldom so, even in form. The plea might specially traverse some material fact stated in the declaration, in which case the issue would be really single and direct; but inasmuch as the general issue put in issue all the material facts, this plea was almost unknown in practice. The general issue was the great plea, which, in terms, denied nothing that the plaintiff was required to prove, yet, in effect, compelled him to prove everything — every fact necessary to constitute a cause of action ; and not only that, it also permitted the defendant to offer in evidence many new matters available in defense. What he might thus offer, and what he might not, was governed by no fixed principle, and in regard to such new matter, there was not only no single issue, but no issue at all in the pleadings. 185 § 142 OF PLEADINGS. [PAET H. In assumpsit there was a formal issue, a traverse of the promise, yet the fact traversed was almost always either an inference or a fiction. Instead of being required to prove it, the plaintiff was placed under obligation to prove other facts which created a liability ; and, to keep up a seeming connection between the cause of action and the pleadings, we had the doctrine of implied promises. Nil debit and not guilty deny nothing in terms, put nothing in issue except the defendant's liability, which is not a fact, but a conclusion ; they purport to put in issue the third member of the syllogism, which is impossible, as it is a mere inference ; and non est factum is hardly better. The Code makes no pretense to singleness of issue, but it does seek to make every issue clear and definite, and to narrow the dispute and develop the real matter in controversy. Duplicity is condemned, the pleading of evidence is forbidden, general issues are abolished, inconsistent defenses are not permitted, and the oath is generally required. 186 CH. XI.] THE COMPLAINT OR PETITION, § 143 CHAPTER XI. Of the Complaint or Petition — The Title — The Statement. Section 143. Tlie Order of its Parts. 1. The Title. Section 144. The Court and County. 145. The Names of the Parties. 146. The true Name should be given. 147. Where the Name is unknown. «. The Statement. Section 148. Scope of the present Inquiry — The introductory "Wordii. 149. The Inducement and Gist. 150. What Classes of Pacts are Matter of Inducement. 151. Fictitious Allegations. 152. 1. The Fictitious Promise. 153. 2. In treating a Tort as a Contract, how should the Pacts be stated? 154. The Right to so treat it inferred from an Enlargement of the Remedy. 155. The Inquiry resumed. 156. 3. The common Counts — WTien are they still permitted? 157. The judicial View. 158. 4. As to pleading Matters according to their legal Effect. § 143. The Order of its Parts. — All the codes embodying the reformed procedure agree in regard to the general frame of the complaint or petition, and require that it shall contain (1) the title of the cause, with the name of the county in which the action is brought, and the names of the parties plaintiff and de- fendant ; (2) a statement of the facts constituting the cause of action, in ordinary and concise language, and without repe- tition ; and (3) a demand of the relief to which the plaintiff supposes himself entitled. The phraseology varies slightly in different states, but the order is the same. In New York, where the action may be brought in one county, to be tried in another, the title must specify " the name of the court in which the action 187 § 145 OF PLEADINGS. [PART II. is brought, and the county in which the plaintiff" desires the trial to be had." In New Yorlf, North Carolina, South Carolina, Florida, Indiana, 'Wisconsin, Minnesota, California, Oregon, Nevada, and Colorado, the statutory name for the first pleading is complaint, while iu the other code states it is called a petition. They are words of precisely the same significance in pleadiug,. the former being derived from the common-law system, in which the plaintiff" "complains" of the defendant, while in equity practice the plaintiff" was a petitioner. The statutes of Ohio, Kentucky, Iowa, Kansas, and Nebraska require that the names of the parties be followed by the word " petition." In addition to the three parts of the complaint or petition, should be added (4) the oath which is required in most of the code states. 1. The Title. § 144. The Court and County. — As has been seen, the title must show the court in which the action is brought — as, the Cir- cuit Court, the District Court, the Supreme Court, or any court having original jurisdiction in the matter ; and it must also show the county in which the cause is triable.^ Except in New York,, the county in which the action is brought is the one in which it is to be tried — that one only is designated; and in transitory actions, as will be hereafter seen, this is the only venue named in the pleadings.* § 145. The Names of the Parties. — The full names of both plaintiff's and defendants should be given as plaintiffs and as defendants — not as formerly, by describing them in the body of the pleading, but in the form of a title to the cause, and they may be afterwards referred to, without naming them, as " the plaintiff" or " the defendant." In an action b}' or against a partnership, the full names of all the partners must be stated. Partners cannot, at common law, sue or be sued by their part- nership names ; but by statute in some of the states, as in Ohio, 1 As to New York, see Merrill v. Grinnell, 10 How. Pr. 31 ; Hotchkiss v. Crocker, 15 How. Pr. 336. » Post, ^ 284, 296. 188 ■CII. XI. J THE COMPLAINT OR PETITION. § 145 Iowa, etc., this is allowed, and so far partnerships are treated as •corporations. Elsewhere their demands are joint and personal, and must be enforced by them as individuals. The liabilities also of partners are personal liabilities, and they or their surviv- ors are jointly liable, unless, as in Missouri, the statute severs the liability and authorizes an action against one or more of them. It is not absolutely necessary that the title describe the parties as partners and. give the partnership name, provided the fact appears in the body of the complaint ; but it is always best to do so. And so, when one brings an action in a representative ca- pacity, or sues another in that capacity, the title should show the relation. Thus, if John Doe, an administrator, wishes to recover a debt due his intestate from James Jackson, who is de- ceased, he should entitle the action as follows: "John Doe, as administrator of the estate of Henry Smith, deceased, against Richard Roe, as executor of the will of James Jackson, de- ceased." The word " as " should not be omitted ; it is necessary to show the relation between the parties and the estates repre- sented, and that they are in court, not for themselves, but for their estates.^ "John Doe, administrator," etc., may be meant as an indication as to which John Doe is meant if there is more than one, and to distinguish him from another who may be a o-uardian, or a merchant, or something else ; or, otherwise, as a means of identification. The words of addition merely are called descriptio personce, and because he is an administrator, and so says, it will not follow that the action is on behalf of the estate unless the fact appear. And the rule applies to all who sue in a representative character, both in the title and statement.^ In a suit by an infant, the title should be " A B, plaintiff, by C D, his o-uardian," etc., but it is sufficient if the names appear ■ correctly in the body of the pleading.^ Although the statute is positive in requiring the statement to be preceded by the title, yet if it is omitted, and the names of the parties are given in .the statement, the pleading is not, hence, subject to a demurrer ; 1 Sheldon v. Hoy, 11 How. Pr. 11. > Gould V. GUlss, 19 Barb. 179, etc. ■' Hill V. Thacter, 3 How. Pr. 407. 189 § 147 or PLEADINGS. [PAKT II. thus, the followhig, kfter giving the court and county, was held to be a substantial compliance with the statute : ' ' Charles Crosby complains of John Ammermau, and says," ^ etc. § 146. The true Name should be given. — Even where a judgment has been obtained against a defendant by a wrong name, an action upon the judgment should be brought against him by his true name ; but that there may be no. variance between the title and the description of the judgment as given in the body of the pleading and the record itself, the identity of the parties should be shown — as, that the judgment was recovered against the defendant by the name of Richard Roe, or whatever he was called.^ If one is well known by two or more names, either name is the true one. "Parties can only sue in their true names. Where the contract or deed is executed to them in a wrong name, nevertheless plaintiifs must sue in their proper names, and may aver in their declaration that defendants made the deed or contract by the name mentioned." * § 147. Where a If ame is unknown. — The plaintiff maybe ignorant of the name of a defendant, and in such case he is authorized by the codes of some of the states to designate him by a fictitious name, and supply the true one when discovered.* In Iowa, instead of giving such defendant a fictitious name, the plaintiff is required to describe him as accurately as practicable,* and to give the reason for so doing. In the states that have not provided a statutory mode of bringing one into court whose name is unknown, at worst the title of the complaint can only be > Ammerman v. Crosby, 26 Ind. 451 ; and to the same effect is The State v. Patton, 42 Mo. 530. 2 2 Chitty's PI. 484. ' Pinckard v. Milmine, 76 HI. 453, citing Board of Education v. Grreenbaum, 39 HI. 609. See, also, Becker v. German Mutual Fire Ins. Co., 68 HI. 412. * Code Proc. N. Y., g 175; Code Civ. Proc. 1876, ? 451 ; Code Proc. Ohio, § 141 ; Code Civ. Proc. Cal. 1874, p. 474; 2 Stat. Wis., 1447, | 43; Code Civ. Proc. Neb., ^ 148 ; Code Civ. Proc. Col., g 76. In California, by an amendment to the section, the plaintiff is required to state the fact of his ignorance of the true name, but before that, in Bosencrantz v. Rogers, 40 Cal. 489, it was held that the ignorance must be real. 5 Code 1873, ? 2557 190 CH. XI. j THE COMPIiArSTT OB PETITION. § 149 objected to for misnomer. At common law this error was met by plea in abatement for misnomer, but the practice under the Code cannot be considered as settled.^ 2. The Statement. § 148. Scope of the present Inquiry — The introductory Words. — It will be necessary hereafter to devote several chap- ters to the consideration of certain rules that govern the statement of the facts, and in this connection I shall speak of general matters that concern the statement, and of such particu- lars as, in the classification I shall adopt, cannot be conveniently embodied in rules. Where the names of the parties are correctly given in the title, and no explanation in regard to them is called for — as, an averment showing the character in which they sue or are sued — it is not necessary to restate them, but it is sufficient to say, " the plaintiff states that the defendant," etc. The word " states" corresponds to the name of this part of the complaint, and hence is a very proper one, but any equivalent word will suffice — as, "alleges," "represents," "says," etc. § 149. The Inducement and Gist. — The old distinction be- tween the facts which were of the gist or substance of the cause of action and those which were matter of inducement was a nat- ural one ; it did not pertain to the form merely of the pleading, and must continue to be recognized. We have no longer fictitious inducements — as, the loss and finding, in trover — any more than fictitious allegations of matters of substance, as was generally the promise in assumpsit; nor are traverses now. confined, as formerly, to avermeiats of facts which are of the gist ; but it still happens that the main charge will not be understood, or will not create a liability, either at all or as between the parties, without explana- tory statements. The facts covered by these statements are sometimes called extrinsic facts, and, though not of the substance, they are material, and if denied, must be proved. The terms 1 See post, a 427, where the authorities upon the question are noted. 191 § 150 OF PLEADINGS. [PART II. "gist" and "inducement,'* though seldom now employed, are familiar to old pleaders, are not misleading, express a distinction readily recognized, and sliould be retained. The distinction may be less prominent than under the common-law system, both be- cause of such fictitious inducements and because of the restriction in regard to their traverse ; but so far as the distinction was not artificial, it still subsists, and no pleader can properly analyze the facts constituting his cause of action without noting it. Natural classification clarifies the understanding, and one should know the precise and relative bearing of all his facts. And the distinction is still important with reference to the rule that in pleading matter of inducement less certainty or particularity is i-equired than in matter of substance.^ The old pleaders also spoke of matter of aggravation, as constituting one of the parts of the declaration, as distinguished from matter of substance, which was not traversable.^ While no such mere formal matter is now proper, yet the extent of the damage may not be indicated by the nature of the injury complained of; and in such case, when they are the natural consequences of the act, though not necessarily the result of it, they should be particularly specified in the complaint, that the defendant may not be taken by sur- prise.' § 150. What Classes of Facts are Matter of Inducement. — Pacts which are matter yof inducement are either such as show a right in the particular person to institute the action, or a liability, where such right or liability does not appear in the allegations showing the wrong, or they are facts necessary to explain or siip- plement such allegations in order to show that any wrong had been suffered ; that is, they either go to the right or liability 1 Post, ? 311. 2 1 Chitty's PI. 612. 3 Baldwin v. The New York & Harlem Nav. Co., 4 Daly, 314. The words thus lield to be necessary were that the plaintiif " was prevented and incapacitated from attending to his business," and were suffered to be inserted, by way of amendment, upon the trial. The same view as to averments of special damage is taken in Molony V. Dows, 15 How. Pr. 261, and in both cases the courts speak of them as not travei-s- able, referring, however, to common-law authorities. 192 CH. XI. J THE COMPLAINT OR PETITION. § 150 in respect to the parties, or to the right or liability itself. The question as to a right or liability in respect to the parties may involve the legal existence of a party — as, if an action be brousht by or against a corporation. Upon principle, it is not sufficient simply to use the corporate name, whether as plaintiff or defend- ant ; but, inasmuch as a corporation is an artificial person — the creature of law — facts should be alleged which show its lesfal existence, and with such certainty as to be traversable if the de- fendant desires to put them in issue. This matter will be here- after considered at some length.' This question may also go to the right or liability in the particular case, as the action is by or against one in a representative capacity. Thus, if an executor or administrator, or a trustee, bring an action on behalf of the estate of the deceased, or on behalf of the beneficiary, he should show his relation ; and so if the plaintiff seeks to charge one by virtue of such relation. In either case the facts creating the relation should be so pleaded as to be traversable. This subject is also separately considered.^ The right or liability itself, with- out reference to the legal existence of a party, or the character in which he sues or is sued, may depend upon facts extrinsic to the main chaise. Thus, in an action for slander, words not actionable in themselves maybe made so by a statement of some extrinsic fact. In a Missouri case the defendant was charged with saying that the plaintiff had burned a barn in Indiana, but there was no allegation that to burn a barn was an indictable offense in that state; and inasmuch as it was'^not a felony at common law unless the barn was filled with corn or connected with a dwelling-house, the petition was held to be bad.' The gist of the petition was the publishing the words concerning the plaintiff, but no fact was stated showing the criminal character of the act charged, and the c-ourt could not take judicial notice of its character unless it is a common-law ofl'ense. It has been claimed that the court should presume that the statutes of other states upon a given subject are the same as in the state of their jurisdiction, but the presumption rather is, in the absence of 1 Post, U 246-261. 2 Post, II 261-267. 8 Bundy v. Hart, 46 Mo. 460. 193 13 § 151 OF PLEADINGS. [pART II. evidence, that the common law prevails.' So, if one be defamed generally in regard to his profession, business, or trade, the fact that he is engaged in such business, etc., is an extrinsic one, to be pleaded ; and words of depreciation in reference to the per- formance of a special undertaking or duty requiring skill would be meaningless, so far as their defamatory character is concerned, without the statement of facts showing their application.'' Says Chitty : " The inducement or averment by way of introductory allegation is peculiarly proper where a party is charged upon , or in respect of, the breach of a contract or implied duty resulting from any particular character or capacity of defendant." * This doctrine is applied to declarations against attorneys, physicians, and mechanics, for negligence, and against carriers and innkeepers for loss of goods, the coiatract or possession of the property and the injury being the gist or substance, while the allegations show- ing the occupation of the defendant, in reference to which the contract was made or the duty arose, show matter of inducement. § 151. Fictitious Allegations. — In comparing the Code re- quirement to state the facts constituting the cause of action with the statements required in common-law pleading* we must nec- essarily inquire whether, in fact, all fictitious averments are now forbidden ; whether the law itself supposes and requires the pleader to state what in fact is not true, or whether the state- ment should correspond with the facts to be developed. It would seem that the inquiry could, upon principle, be answered in only one way: All forms of action are abolished, and the pleader is required to state the facts that constitute the cause of action or the defense — "the facts that constitute Ante, li 9, 128. 195 § 154 OF PLEADINGS. [PABT II. show a mutual understanding, one not expressed in words, but wliich, under certain circumstances, must exist. Is it necessary or proper, under the Code, to state this promise or understand- ing? The ruling upon this subject has not been uniform, although the weight of authority favors the negative answer.^ § 153. 2. In treating a Tort as thougli a Contract, how should the Facts be stated? — Eeference is here had only to the class of cases where one who has suffered an injury may, to use the old phraseology, waive the tort and sue as upon contract — that is, sue in assumpsit. There is now no assumpsit or other mere form of action, and yet the right to waive the tort, etc., is still recognized. There being no difference between assumpsit and trespass or case, except that which necessarily springs from the differing causes of action, the question arises. How shall the pleader indicate the fact that he has elected to sue in contract? He may desire to unite in one complaint a cause of action arising from a tortuous conversion of property with one arising from the refusal to pay a promissory note ; or, it may be important, when sued for breach of contract, to set off a demand founded upon such tortuous conversion — and, in either case, the inquiry becomes important. But before proceeding further to consider it, I will again venture a suggestion as to the propriety, under the Code, of recognizing an implied contx'act as springing from a tort. § 154. The Right to so treat it inferred from an Enlarge- ment of the Remedy. — The right, under the old procedure, to waive the tort and sue as upon contract, simply meant that the plaintiff was not obliged to sue in that form of action which could alone be resorted to when the wrong complained of was called a tort. Instead of resorting to the action of trespass or case, he might declare in assumpsit; but in order to do so he must allege a promise, for a promise is of the gist in that form 1 As showing that the promise should not be alleged, see "Wills v. "Wills, 34 Ind. 106 ; Gwaltney v. Cannon, 31 Ind. 227 ; Parron v. Sherwood, 17 N. Y. 227 ; Cropsey V. Sweeney, 27 Barb. 310; Jordan, etc., Co. v. Morley, 23 N. Y. 552; Allen v. Patterson, 3 Seld. 476 ; "Wilkins v. Stidger, 22 Cal. 235. Contra : Bird v. Mayer, 8 "Wis. 362; Booth v. Farmers & Mechanics' Bank, 65 Barb. 457; s. c, 1 N. Y. Sup. Ct.46. 196 CH. XI. j THE COMPLAINT OR PETITION. § 154 of action. Hence the fiction of an implied promise when it is impossible for one to be supposed. The implied promise in torts is wholly unlike that which is assumed in contracts, for with the latter there is an actual understanding. To say that it is im- plied is no more than to say that it is tacit — as though given by signs and not expressed in words. But in torts there can be no such understanding. The wrong-doer either claims the property concerning which the wrong is done, or designs to appropriate it without such claim ; and in either case the facts are wholly incon- sistent with the idea of a promise. It is not probable that the fiction of an implied promise on the part of a wrong-doer would ever have been invented, had there been no action of assumpsit, and had trespass or case been the only remedy, or even if the action of debt had been held to lie. But the action of assumpsit was a very convenient, and it became a very popular, remedy for many classes of grievances ; it was in form an action of trespass on the case, charging the breach of the promise as though a tort, and came to be allowed, at the option of the plaintiff, in the class of cases of which we are speaking. From the necessity of averring a promise in the pleadings, it came to be the received doctrine that there is an implied promise on the part of certain wrong-doers to compensate the sufferer for his loss. And yet this uiiphilosophical statement of the doctrine is a modern one. In the earlier cases the right to sue in assumpsit was placed upon other grounds, and chiefly upon the ground that a defend- ant will not be permitted to stultify himself — to defend by show- ing that he has been guilty of a fraud or other tort.^ Although, 1 Hambly v. Trott, Cowp. 371, was an action of trover against an executor, for a conversion bv the testator. The objection was that the cause of action, being for a tort, abated by death. The matter was carefully considered at different sittings, and the court, pei- Mansfield, J., were clearly of the opinion that it ought not to abate, in- asmuch as it affected the property of the plaintiff; but still, trover was a form of action for torts, and, as the law then was, actions for a tort by the ancestor could not be prosecuted after his death. But, that justice may be done, the court held that the testator, who had sold the property converted, owed a duty to the plaintiff, and, so far, " upon the principles of civil obligation, another form of action may be brought — ■ as an action for money had and received." Nothing is said about an implied promise arising out of the wrongful conversion. Lightley v. Olouston, 1 Taun. 112, was an action of indebitatus assumpsit by the master against one who had seduced and em- ployed his apprentice. Mansfield, J., says : "He may waive his right to damages for the 197 § 154 OF PLEADINGS. [PAET II. where goods had been fraudulently or otherwise tortiously ob- tained and sold, the property in the goods was held not to be changed — they still belonged to the plaintiff; and, when sold, it might be truthfully said that the money, the proceeds of the sale, was received for his use.^ From the permission thus tort (for the seduction), and may say that he is entitled to the labor of his apprentice; that he is, consequently, entitled to an equivalent for that labor, which has been bestowed in the service of defendant. It is not competent for the defendant to answer that he obtained that labor, not by contract with the master, but by wrong, and that therefore he will not pay for it." Hill v. Perrott, 3 Taun. 274, was an action of indebitatus assumpsit for goods obtained by fraud, and the court held that "the law would imply a contract to pay for the goods from the circumstances of their having been the plaintiff's property and having come to the defendant's possession, if unac- counted' for, and he could not be permitted to account for the possession by setting up the sale which he had himself procured by the most nefarious fraud, because no man must take advantage of his own fraud." In Longchamp v. Kenny, 1 Dougl. 137, masquerade tickets had been intrusted to the plaintiff to be sold, and defendant had obtained one of the ticlcets. The plaintiff being called on to return or pay for the tickets, sent the owner to the defendant for this one, who failed to account for it. The plaintiff, under threat of arrest, paid five guineas, the price of the ticket, and sued the defendant on the many counts in assumpsit. Mansfield held that the pre- sumption was that defendant had sold the ticket, and, therefore, he should be held for money had and received to the plaintiff's use. Some of the other judges held the defendant under the count for money paid on his behalf by the plaintiff — as, where a surety pays for his principal. Foster v. Stewart, 3 Mau. & Sel. 191, was an action of assumpsit for work and labor for the services of an apprentice seduced by defendant. Bailey, J., does not reason the case, but says that the plaintiff may "waive the tort and bring assumpsit; " citing Lightley v. Clouston, and Hambly v. Trott. Le Blanc, J., says: "I should be inclined to consider that, as there was a contract, the master might avail himself of it, as the apprentice was under the incapacity of making a contract, except for the benefit of his master." Abbotts v. Barry, 5 Moore, 98, was assumpsit for money had and received, etc. The evidence showed that defendant had fraudulently procured a sale of goods by the plaintiff to an Insolvent debtor, and out of the proceeds of a resale had received a part of his debt. In holding that assum,psit would lie against him, Dallas, 0. J., says: "The sale in question was effected by fraud, and it is equally clear that a sale of this description works no change of property. The wines must be considered as remaining in the plaintiffs as the original owners, and, therefore, the produce of such wines obtained by the de- fendant by the sale of them must be considered as money had and received by him to the use of the plaintiffs, as the original proprietors." These are the principal cases in the older modern reports. The judges did not find it necessary to assume, as matter of law, that the defendant had made a promise. 1 In Jones v. Hoar, 5 Pick. 285, to which is a valuable note, it was held that in tortious conversions of personal property the right to waive the tort and sue in assumpsit was confined to cases where the plaintiff's property had been sold by the defendant. If the right is based upon the fact alone that the defendant has received money from the sale of the property — that is, if the pleader is required to tell the 198 CH. XI.] THE COMPLAINT OR PETITION. § 154 given in certain cases to bring an action of assumpsit, it after- wards came to be asserted as a rule tliat when there is an ob- ligation to pay money, and, in some cases, when it arises from a tort, the law raises a promise on the part of the debtor or of the wrong-doer to make compensation.^ There is no longer a seem- truth, and the defendant is permitted to controTert the facts as pleaded — this view is a sound one; for in case the plaintiff's property has been converted into money, the money, in law, is received for the use of the plaintiff, and the pleading tells the truth. But to say that, when the defendant has wrongfully converted and holds the plaintiff's property, he has purchased it, that the goods were sold and de- livered to him at his request, is not true in fact nor in law; and in such case the only ground upon which the plaintiff can, upon principle, be permitted to treat the transaction as a contract is by a sort of estoppel — that is, if the plaintiff chooses to treat it as a sale, the defendant, upon a familiar principle, will not be permitted to avail himself of his own wrong, by showing that it was not sold, but obtained by theft or fraud. ' It is unnecessary to go»through the numerous cases where this is stated or as- sumed. Mr. Pomeroy, in speaking of the right of election in cases where one may waive the tort, etc., says: "The single principle upon which the entire doctrine rests is very simple, and should * * * afford a ready and plain solution of every question, new and old, which can be suggested. This single principle may be thus formulated : From certain acts or omissions of a party creating a liability to make compensation in damages, the law implies a promise to pay such coixipensation. Wherever this is so, and the acts and omissions are at the same time tortious, the twofold aspect of the single liability at once follows, and the injured party may treat it as arising from the tort, and enforce it by an action setting forth the tortious acts or defaults, or may treat it as arising from an implied contract, and enforce it by an ac- tion setting forth the facts from which the promise is inferred by the law." Pom. on Eem., ^ 568. The learned author seems fully imbued with the modern idea that the law implies a promise, in certain cases, to compensate the sufferer for the injury which one is inflicting upon him. The implied promise is sometimes traced to the fic- tion of the social contract. Says Blackstone (3 Bla. Com. 158), speaking of contracts implied by law : " Of this nature are, first, such as are necessarily implied by the fundamental constitution of government, to which every man is a contracting party. And thus it is that every person is bound, and hath virtually agreed to pay such par- ticular sums of money as are charged on him by the sentence, or assessed by the in- terpretation of the law. For it is a part of the original contract, entered into by all mankind who partake of the benefits of society, to submit in all points to the municipal constitutions and local ordinances of that state of which each individual is a member. Whatever, therefore, the laws order one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge." The author proceeds to found upon this original contract the obligations to pay judgments, forfeitures, fines, and penalties, and after having spoken of contracts to pay for services, etc., which are implied in fact, he treats of negligence as a violation of the general contract to meet one's obligations in all the relations of life, and especially in the performance of any special duty he may be called on to do. The barrenness of this theory, in its application to pleadings, appears when we consider that no promise is laid in actions 199 § 155 OF PLEADINGS. [PAET II. ing necessity for speaking of an implied promise in such cases. We have no assumpsit, with its fictitious promise ; and, as we have just seen,^ where a promise is actually implied, it is no longer necessary to allege it — only the facts from which it is understood. The old right of election was simply a right to seek redress in a more convenient form of action, and one which would sometimes lie where an action of trespass or on the case had abated. Having now no forms of action, it would seem that the reason for allowing the election had passed away ; and, per- haps, had the provisions of the Code in this regard been viewed in the beginning from a scientific stand-point ; had the bench and the bar been able at that time to emancipate themselves from old ideas and habits of thought, we should no longer hear of this right of election, or of an implied promise to compensate for an injury. » § 155. The Inquiry resumed. — In common-law pleading there was no practical difficulty in indicating the election, inasmuch as the pleading itself would necessarily show the position in which the plaintiff had chosen to place his antagonist. But under the new system it is not always easy to know whether a party has determined to waive the tort ; it is not easy to fix upon the sig- nal or notice to be given by the aggrieved party, in order to in- form the court of the nature of the liability which he charges. There are several ways by which it may be indicated. One is to charge the facts as though a contract had been actually made — as, where the plaintiff's property has been taken, to allege a sale to -the defendant, the value, and refusal to pay; or, where the plaintiff's property has been sold by the defendant, to charge the sale of the plaintiff's property and the money rceived for his for the wrongs of which he speaks, except where the promise is real, though not in words. He does not seem to have known of the implied promise, at the time of the infliction of an injury, to compensate for its results. There is no logical consistency, however, in assuming a promise in such cases, except upon the theory that legal obli- gations and duties are binding only because of one's original contract as a member of society — an idea only found among the exploded fancies of the last century — and the "then and there," etc., of the narratio in assumpsit, refers to the time and place of making such contract, which I believe has never been precisely fixed. I Anie, § 152. 200 CH. XI. J THE COMPLAINT OR PETITION. § 155 Tise.^ The objection to this view is that it is not generally true — that is, the pleading, under the brief formula of the abbreviated common counts, may state the truth as far as it goes ; yet it does not tell the whole truth, does not " state the facts consti- tuting the cause of action." And if the defendant claims property in the goods, the issiies upon the trial would not be the same as those made upon paper. On the other hand, there is great force in the reason for allowing the action of assumpsit which is given in Lightley v. Clouston, and in Hill v. Perrolt, to vsdt : that the defendant will not be permitted to set up or take advantage of his own wrong as a defense. It is analogous to the doctrine of estoppel in pais. Although the facts which show the plaintiff's right and the wrong may not be strictly true as laid, the defendant will not be permitted to controvert them by showing a -more grievous wrong, and one involving moral delinquency. " No man can take advantage of his own fraud," or of his unlawful conversion of the property of an- other. Under this view it would be proper for the plaintiff to count as upon contract, and he would be entitled to recover — not because the law implied an agreement in the particular case on the part of the defendant, but because, according to estab- lished principles of law, the latter is forbidden to make a de- fense of the character named. Another mode of indicating the election would be to state the facts as intended to be proved, but to show it by the connection of the statement, by the prayer, or, sometimes, by the writ. As, one might unite a count for a tort in the same pleading with one founded upon contract, or may seek to set off damages arising from a tort against a demand springing from contract. If this be an injury of such a character that the twofold complexion may be given it, it may be properly held that the pleader has indicated his choice by the use he thus makes of his demand. Or he may directly i state his choice, or indicate it by the prayer.^ In New York and 1 This is the view taken in Booth v. Parmers & Mechanics' Bank, 65 Barb. 457, although in that case the court, contrary to all the other New York cases, goes so far as to say that the implied promise should also be stated. See I 152, ante. This mode of statement is Intimated as proper in Gordon v. Bruner, 49 Mo. 570. 2 In Corry v Gaynor, 21 Ohio St. 277, it is said that where the facts stated in the 201 § 156 OF PLEADINGS. [PART II. some other states the writ differs in actions of tort — aiTest and imprisonment being allowed — from the common summons that is issued in actions founded upon contracts. This writ is some- times appealed to, not as conclusive, but as indicative of the character of the action. § 156. S. The common Counts — When are they still per- mitted? — I do not refer in this connection to causes of action that may be correctly described by one of the old common counts, in which case the pleading may be subject to the objection only of uncertainty, or that the statement of indebtedness is but a conclusion of law, but to cases where an express agreement has been violated, and where the party entitled to redress is permit- ted to sue — as, for work and labor, for goods sold, etc., accord- ing to the subject-matter of the contract — as though no such agreement had been made. It is true the allegations of indebted- ness for work and labor, for goods sold, etc. , are not fictitious ; but the pleading does not state the true cause of action. The wrong which is the cause of action is the breach of the contract ; the damages are measured by the contract ; the evidence must show the contract, its performance on the one side and breach on the other, and, upon principle, the pleading should correspond. In some of the states, in actions founded upon written agreements, the original agreement must be filed with the petition ; in others, a copy ; and in others, the original or a copy. In all these states the common count would defeat this provision of the statute, be- cause the pleading does not base the action upon the contract, but upon something the plaintiff has done, not to be alleged as done in pursuance of the agreement, but to be so shown in evidence. The old rule was that when an agreement has been wholly per- formed on the part of the plaintiff, or when he has been hindered from performing it by the defendant, he may recover under the common counts if they cover the subject-matter of the agreement on his part. There is reason for holding that if the plaintiff has been hindered from performing the contract, he may, if it was petition will entitle the party to elect between two remedies, "the prayer may deter- mine the character of the action, because it is an election ; " and the same view is taken in Gillett v. Treganza, 13 Wis. 472. 202 CH. XI. j THE COMPLAINT OE PETITION. § 157 for work and labor, sue for what he has done, without naming the contract, and for the reason that the other party had repu- diated it, and he has a right to treat it as rescinded. But when it has been fulfilled, the plaintiff can only recover under and by virtue of the contract. The courts administering the Code do not, however, require the pleader to rely upon the agreement, but hold the old rule to be still in force. § 157. The judicial "View. — The New York Court of Appeals in an early case ^ held that the Code had not changed the former rule of pleading ; that a party who had wholly performed a special contract on his part may still count on the implied as- sumpsit to pay the stipulated price, and is not bound to declare specially on the agreement. And the doctrine of that case has been universally affirmed in that court, where the question has arisen.^ The same view is taken in other states. In a case in Wisconsin ^ the defendant had made a fraudulent sale to the plaintifi", and the latter was permitted to recover back the pur- chase-money upon a count for money had and received for his use, the court holding, on objection to the admission of evidence showing the fraud, that the pleading was sufficient under the facts, and intimating that a motion even to make it more spe- cific would not lie. Cole, J., says that " the facts which, in the judgment of the law, create the indebtedness need not be set 1 Tarron v. Sherwood, 17 N. T. 227. 2 See Hosley v. Black, 28 N. T. 438 ; Hurst v. Litchfield, 39 N. T. 877 ; Fells v. Vest- vali, 2 Keyes, 152. In Fells v. Vestvali the following language is used: "The other proposition, to wit, whether there could be a recovery under a complaint on a quan- tum meruit where the proof tended to show an express contract at a fixed price, was, under the evidence in this case, wholly destitute of merit. If the plaintiflT was entitled to recover at all, it was on the ground that the services had actually been rendered ; and, after complete performance of an express contract, there is no reason why a re- covery may not be had under this form of pleading. The only eflect in such case of an express contract fixing the price is that the stipulated price becomes the quantum meruit in the case. It is not a question of variance, but only of the mode of proof of the allegations of the pleading." The vice in the reasoning, to minds unsaturated with the common-law notions as to implied promises, will appear from the fact that the defendant's liability arose from the actual agreement, and not from an implied one, and also from the fact that the extent of the liability is fixed by the agreement, and not by the value of the labor. The agreement, its performance on one side and its breach on the other, are the facts that constitute the cause of action. » Grannis v. Hooker, 29 Wis. 65. See, also. Green v. Gilbert, 21 Wis. 395. 203 § 158 OP PLEADINGS. [PAET II. forth in the complaint." ^ The Supreme Court of Indiana has held ' that the rules of common-law pleading which enabled the common counts to sustain evidence of special contracts were still in force, and that they applied, first, where the whole of the contract has been performed on the part of the plaintiff; second, where the special contract has been altered or deviated from by common consent ; third, where the special contract has been per- formed in part, and its full perfofmance is prevented or dispensed with by the defendant ; and, fourth, where the plaintiff has not fulfilled on his part, but has, under it, done or delivered some- thing of value to the defendant.^ In a case in California * the plaintifi", under a quantum meruit count, had been allowed below to prove a special contract as the measure of what the services were reasonably worth. The judgment was affirmed, but it does not appear what the court decided, except that the count was held to be good on demurrer. § 158. 4. As to pleading Matters according to their legal Effect. — The common-law rule of statement was that " a con- tract or legal instrument should be stated accordino; to its legal effect,"* and in such case there is no variance if the phraseology of the instrument is not the same as that stated in the pleading. And, says Mr. Chitty, " this rule is of very extensive operation, and aiaplies, not only to the statement of contracts in the action 1 This view, given with some hesitation by the learned judge, is the only one that can justify the ruling in this and the New York cases ; yet it is diflBcult to see its con- sistency with the statutory requirement that the complaint shall state the facts which constitute the cause of action. " In Kerstetter v. Raymond, 10 Ind. 199. ' The court met the difficulty in the statutory requirement that "where any plead- ing is founded on a written instrument or an account, the original, or a copy thereof, must be filed with the pleadings," by holding that, in the cases where these common- law rules apply, the suit is not founded on the special contract, but " the plaintiif pro- ceeds exclusively upon the implied legal engagement or obligation of the defendant to pay the value of the services or thing ordered or received by him." As to the second and third applications of the rule of common-law pleading, this view is reasonable, for the contract has been repudiated, and the opposite party may consent to its rescission and sue for the work done, or he may seek damages for its breach and thus affirm it ; and in the fourth application of the rule, the plaintiff' may be entitled to compensation for what he has done or delivered of value, if it has been accepted and appropriated, * Priermuth v. Priermuth, 46 Cal. 42. ' 1 Chitty's PI. 305. 204 CH. XI.] THE COMPLAINT OR PETITION. § 158 of assumpsit, but also to the statempiit by either party of contracts and obligations of every description, whether verbal, written, or specialty, in any form of action." ^ The pleader was not under imperative obligation thus to plead, for it was always sufficient to set forth the very words of an instrument ; and if it was so pleaded, the court would judge of their legal effect.^ As limited to the description of a written instrument, the pleader will be allowed to give it in hcec verba, for that would be a statement of the facts, and the whole matter would be before the court ; but if, instead of doing that, he undertakes to describe its character or operation, he must describe it truly — that is, he must give the contract according to its legal effect. Thus, in one of the instances given by Mr. Stephen,^ " if a tenant for life grant his estate to him in reversion, this is in eff"ect a surrender, and must be pleaded as such, and not as a grant." And suppose a bun- gling conveyancer, intending to draw a lease for years, the term to be indicated in the hahendum clause, should use the words in the granting part, " give and grant," or " bargain and sell," the in- strument should be described in a pleading as a demise, or lease, and the pleader would say that he demised or leased the premises for the term, etc., and not that he granted, or bargained and sold, etc. ; for the former words would state the fact; — that is, would give the legal effect of the instrument. This is not an artificial or technical rule, nor does it involve a fiction ; for in no other way can an act or paper be described truly when it is not set out in words. Thus, it is in harmony with the requirement of the Code that the pleading shall state the facts, etc., and the per- mission to set out a contract in words, or describe it according to its legal eifect, is still recognized.* The permission to describe a transaction according to its legal effect is not 6onfined to con- tracts. In an action against a principal for a fraud committed by his agent, it is proper to charge that the frauds were committed b}' the principal.^ 1 1 Chitty's PI. 305. 2 Ihid. 306. 8 Stephen's PI. [* 390];citing Barker v. Lade, 4 Modern, 151. * A contract may be set out as written, or according to its legal effect. Stoddard II. Treadwell, 26 Cal. 294 ; Bateson v. Clark, 37 Mo. 31 ; Jones v. Louderman, 39 Mo. 287. ' Bennett u. Judson, 21 N. Y. 288. 205 § 159 OP PLEADINGS. [PAEX II. CHAPTER XII. Of the Complaint, continued — The Relief — The Oath. The Relief. Section 159. The Belief must follow the Statement. 160. Where confined to the Belief prayed for. 161. The Relief upon Answer, etc. — The general Prayer. 162. As to Mistakes— "Whether the Belief should he legal or equitable. 163. Each Porum confined to its own Belief. 164. Inconsistent Belief. 165. The full Demand to he stated. 166. Pull Belief in so-called equitable Causes— The old Eule. 167. The Bule under the Code. 168. Continued — The Buling in New York. 169. Continued — The Buling in other States. 170. Continued — The Doctrine in Missouri. 171. The Objection to this View. The Oaih. Section 172. Its Object. 173." The Oath as required in certain States. The Relief. § 159. The Relief must follow the Statement. — The several codes substantially agree in regard to the demand for relief, that of New York requiring the complaint to contain : "3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated."^ To this the Missouri statute adds, " or such facts as will enable the court to ascertain the amount demanded."^ The Ohio Code adds to the original New York provision, " and if interest thereon be claimed, the time from which interest is to be, computed shall be also stated."^ It is unnecessary to refer specifically to all the enactments ; they all require that the 1 § 142. Phraseology slightly changed in Code Civ. Proc. 1876, | 481. 2 Wag. Stat. 1013, J 3. 8 ?85. 206 CH. XII.] OF THE COMPLAINT. § 161 plaintiff shall distinctly state the relief which he seeks, and the importance of so doing will presently appear. § 160. When confined to the Relief prayed for. — The follow- ing is section 275 of the New York Code of Procedure i^ " The relief granted to the plaintiff, if there be no answer, cannot ex- ceed that which he shall have demanded in his complaint ; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue." This section is copied literally in California,^ in Iowa," in Indiana,* in South Carolina,^ in Florida,* in Colorado,' and substantially in Kentucky,* in Missouri,' and in Nevada.^" The New York Court of Appeals" holds that an appearance by demurrer will not authorize greater relief than that demanded, and because the right to such relief is predicated upon the ab- sence of an answer}'^ § 161. The Relief upon Answer, etc. — The general Prayer. — When the defendant has made his answer, or, in Missouri, his answer or other pleading, the court may grant " any relief con- sistent with the case made by the plaintiff and embraced within the issue." It was a rule in equity practice that the petitioner, ^ Its phraseology is changed in Code Civ. Proo. 1876, I 1207. 2 Code Civ. Proc. 1874, § 580. » Code 1873, ? 2855. * Code Civ. Proc, I 380. 6 Code Proc, I 299. • Code Proc., § 221. ' Code Civ. Proc, J 147. 8 Bullitt's Code, § 90. » Wag. Stat. 1054, | 12. JO Comp. Laws 1873, I 1213. " Kelly V. Downing, 42 N. Y. 71. '2 In Missouri the limitation of the relief to that demanded is predicated upon an interlocutory judgment, and that judgment is provided for upon failure to file "an answer or other pleading within the time prescribed by law or the rules of practice of the court." Wag. Stat. 1052, I 4. It is usual to allow an answer after demurrer overruled ; otherwise, judgment will be entered against the demurrant upon issue of law, and such judgment is also called an interlocutory judgment. Wag. Stat. 1053, 2 9. In default, then, of such answer, either in the first instance or after demurrer, the damages or other relief are limited to that which the plaintiff shall have demanded in his petition. 207 § 162 OF PLEADINGS. [PAKT II, in order to be entitled to any other relief than that prayed for, must have made the general prayer ; without such prayer the relief was confined to what he had specifically requested in his bill.^ Is this prayer necessary under the Code ? Upon principle, it would seem to be uncalled for. The statute says that the com- plaint or petition shall contain ' ' a demand of the relief to which the party supposes himself entitled." A general prayer is not such a demand. And, further, "the court may grant him any relief consistent with the case made and embraced within the issue." The issue has nothing to do with the prayer for relief. It is made by the affirmance and denial of some fact or facts, or by the denial of some legal proposition which is implied in the statement of facts. ^ If the facts put in issue and established by evidence entitle the party to any relief in the power of the court to give, although not that demanded, it is the duty of the court to give it, and its power to do so is not conditioned upon the form of the prayer. It has been common among pleaders, fol- lowing the equity practice, to close with the general prayer, and not unfrequently have courts, in varying the relief from that specifically asked for, based their authority upon such prayer ; ' while in other cases the power is assumed without any reference to such general prayer.* In the cases referred to in the next section, where one who applies for relief of an equitable nature is denied such relief, but obtains that of a legal nature, or vice versa, the authority is never based upon a general prayer. But the pleader should bear in mind the language of the rule, and that he will not be entitled to any relief that the evidence alone shows him entitled to. " It is a rule in chancery, not affected by the Code, that a party must recover according to the case made by the complaint, or not at all, secundum allegata as well as pro- bata." ^ § 162. As to Mistakes — Whether the Relief should be legal or equitable. — As we have heretofore seen, the plaintiff may 1 Story's Eq. PI., J 40. 2 Ante, II 136, 137. 5 As in Hemson v. Decker, 29 How. Pr. 386 ; "Wood v. Brown, 34 N. Y. 337. ' As in Emery i;. Pease, 20 N. Y. 62 ; Henderson v. Dickey, 50 Mo. 161. 5 Rome Exchange Bank v. Eames, 1 Keyes, 588. 208 CH. XII. j OP THE COMPLAINT. § 162 unite in one pleading a cause of action calling for a judgment for money only, or for specific property, with another cause of ac- tion in which he seeks relief still called equitable. Different modes of trial are provided — in the one case by jury, and in the other by the court ; ^ and the judgments or relief would be sepa- rately, but contiguously, entered upon the record. But instead of thus uniting two causes of action, the plaintiff may have but one cause of action — may have sufi'ered but one wrong — but supposes it to be necessary, before he can enforce his demand, to obtain some relief of an equitable nature. He frames his complaint accordingly, not by uniting two causes, but by stating his demand, and the facts that, in his view, render it necessary to seek for equitable aid, asking for such aid and for complete re- lief ; and the court is of opinion that there is no necessity for the special relief, but that he has stated facts sufficient to entitle him to a money judgment without such aid. Will the court, in such case, dismiss the complaint, or, disregarding or striking out the equitable matter, direct the case to be tried as in an action for money only, or for specific property? Or, one may seek the spe- cific performance of a contract which, for some reason, he can- not thus enforce, but shows facts that entitle him to damages for its non-performance. Will the court, in such case, as imder the equity practice, dismiss his petition,^ or will a jury trial be awarded, as though damages alone were sought? These questions have been considered in the courts of New York, and full effect has been given to the provision as to relief which has just been considered. In the Supreme Court, at general term, it has been said ' ' that the rule is now well settled that in actions brought for equitable relief, and tried before a judge, if there appears to be no ground for granting such relief, the court should retain the cause and grant such legal relief as may be just."^ In Wiscon- ' Sternberger v. McGovem, 56 N. Y. 12. 2 Morss V. Elmendorf, 11 Paige, 277. » Cuff V. DoTland, 55 Barb. 482. Ingraham, J., further says that the trial judge, "while he refused a decree for specific performance, should have retained the case for the purpose of awarding to the plaintiff the damages he was entitled to for the non- performance." In Sternberger v. McGovem, 56 N. Y. 12, which was a complaint seeking specific performance of a real contract, and it appeared that it could not be performed even in part, it was held to be error to dismiss the action, but it should 209 § 163 OF PLEADINGS. [PART II. sin, on the other hand, in an action for the specific performance of a parol agreement to sell land, it is held that the plaintiflF, failing to establish his equitable right, will not be permitted to recover back the money he has paid upon the contract.^ But the California Supreme Court holds that if a complaint purporting to be a bill in equity is insufficient as such, yet, if the facts are cognizable in a court of law, the proper relief will be given.* § 163. Each Forum confined to its own Relief. — Where each party insists upon his rights in regard to the mode of trial, the court, upon inspection of the complaint, or one of its state- ments, must decide, in the first instance, whether a case is made for the court or the jury — that is, whether the cause is of an equitable or of a legal nature. And, upon submission of the facts, whether to the court or the jury, it would seem that no other relief could be given than that properly sought from the given forum. Thus, if there should be, in one statement, an improper intermingling of facts that would constitute two causes of action, one for legal and one for equitable relief, and the parties should go to trial upon such pleading unreformed, a jury could only give a verdict for money, or for specific property, as the case may be ; and if the cause were submitted to the court against the will of the losing party, the court could only pass upon the equitable issues.^ If this view be correct, in either have been retained for a trial of the plaintiff's claim for damages. Grover, J., says : "He demands equitable relief, based upon the ground that he was entitled to specific performance of that part of the contract relating to the Thompson-street property. He failed in showing a right to this. He then had a right to a trial of his claim for damages sustained by the breach. True, the mode of trial may be different. The former must be tried by the court, or a referee, unless, etc. Either party has a right to a jury trial of the latter." To the same effect are New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357 ; Davis v. Morris, 36 N. Y. 569 ; Armitage v. Pulver, 37 N. Y. 494. In Davis v. Morris, Grover, J., seems to think that if either of several causes of action united in one complaint are triable by jury, " the entire cause must be so tried, as no provision is made for two trials of the issues joined in the same action." ' Horn V. Ludington, 82 Wis. 73. Cole, J., says : "It will not do to say that if the facts fail to show that the plaintiff is entitled to the equitable relief he seeks, that the action must be sustained as one at law." But why not? This is hardly consistent with Leonard v. Rogan, 20 "Wis. 540, although in the latter case the plaintiff merely mistook his remedy. ' White V. Lyons, 42 Cal. 279. • Contra dicta in Davis v. Morris, 36 N. Y. 569. 210 CH. XII.] OF THE COMPLAINT. § 164 mode of trial the court should treat as surplusage the issues upon the facts constituting the cause of action not so triable ; for, except by consent, issues triable by one mode could not be tried b}' any other. I do not find this view authoritatively taken by the courts, nor its opposite, but I can conceive of no other con- sistent with the statutory rights of the parties in regard to the mode of trial. § 164. Inconsistent Relief. — Though the plaintiff is not confined to one kind of relief, yet each kind prayed for, though difi'ering in character, should be consistent. The principle that forbids the union of inconsistent causes of action should prevent a demand for inconsistent relief in any one cause. In an early case' the plaintiff asked for a forfeiture of a lease, for non- performance of its conditions, and also for an injunction against the lessee, to restrain him from making alterations, etc. An injunction had been allowed ; but the court, at general term, held that the plaintiff had no right to it so long as he sought a forfeiture.^ In most cases the different kinds of relief are im- possible ; one would destroy the other. Thus, in an action for the breach of a contract, the plaintiff may state facts that would entitle him to a judgment enforcing it, or to one for its rescis- sion ; but he should not seek both at the same time. He should elect whether he will enforce or rescind, whether he will affirm or disaffirm ; the prayer in such case shows his election.' But if he seek thus to enforce and rescind, he comes into court without having made his election, the opposite party is not advised of the nature of the proceeding, and he should be required to 1 Linden v. Hepburn, 5 How. Pr. 188; s. c, 3 Sandf. 668. 2 "The forfeiture of the term," says Sandford, J., "is a relief totally inconsistent with any equitable remedy. The lessor may pursue his remedy for a reentry and possession, or he may proceed for an injunction and damages, leaving the tenant in possession. He has an undoubted option to do either. He cannot do both at once." The inconsistency in this case was not because the two kinds of relief necessarily interfered with each other, but because, in equity, forfeitures were odious, and equity would not help one who is seeking to enforce them. * "Where the facts stated entitle the plaintiff to elect between two remedies, to either of which the facts show him entitled, the prayer may determine the character of the action, because it is, in itself, an election." Welch. J., in Corry v. Gaynor, 21 Ohio St. 277. 211 § 165 OF PLEADINGS. [PAET II. decide what he wants before proceedmg further. This does not, in a proper case, prevent one from seeking alternative relief; yet a property-holder cannot, in the same action, sue for an injury to his individual property, or, if relief cannot be granted to him personally, that it may be granted to him as tax-payer for him- self, and as representing other tax-payers similarly affected ; ^ nor should alternative relief be sought, " founded on the assump- tion that the cause of action is wholly misconceived, and is en- tirely inconsistent with, and foreign to, the case as stated in the petition." ^ It is held not to be incongruous for a plaintiff to ask that a claim for dower be adjudged extinguished, or, if the evidence should not warrant that measure of relief, that the dowress be adjudged to contribute to the payment of a certain mortgage.' § 165. The full Demand to be stated. — In a money demand, the pleader should state the full amount demanded, or the facts from which it can be computed. In an early case in New York,^ the verdict was for a larger sum than the one claimed, and it was held that the Code had not, in this regard, changed the former rule, and the plaintiff was allowed to remit the excess and take judgment for the amount claimed. This was an action founded on a tort, and tlie damages charged were a part, as it were, of the facts, and the demand stated nothing from which a greater sum appeared to be due. In actions founded on contract, the statement may show a larger amount due than the sum named in the prayer. The authority of the court in such case is thus stated by the Supreme Court of California: "Where judgment 1 "Warwick v. The Mayor, 28 Barb. 210. ' Pensenneau v. Pensenneau, 22 Mo. 27. Scott, J., says : " The difficulty in this ease grows out of the omission or unwillingness of the plaintiff to determine on what ground she will stand. She must either abide by the partition or disclaim it. If she insists that there was a binding partition, let her make a deed confirming it. * * « Then she will be in a position to claim an enforcement of the trust, if there is any. If she is unwilling to do this, then let her declare the nullity of the deed of partition growing out of the imperfect mode of executing it. Failing to do one or the other of these things, she will not be permitted to litigate her rights without determining what they are before she institutes her suit." » Wood V. Seely, 32 N. Y. 105. * Corning v. Corning, 2 Seld. 97. 212 CH. XII. J OF THE COMPLAINT. § 16t> is by default, the court cauuot graut greater relief than is de- manded in the complaint ; but where there is a trial, the court may grant any relief consistent with the case made in the complaint and embraced within the issue. The contract is set out in the complaint, and accruing interest, and interest on the judgment, are embraced within the issue, notwithstanding they are not in- cluded in the prayer." ^ In Missouri it is held that it is error to render judgment upon a verdict for a greater sum than that which is demanded, unless the petition has been amended before verdict so as to cover the amount.'^ § 166. Full Relief In so-called equitable Causes — The old Rule. — • In an action other than for money or specific property, the court — if the demand be sustained, and one for money or specific property is connected with, or grows out of, the equity — will retain and try the whole cause, and, without the interven- tion of a jury, will give such money, or other judgment, as the party shows himself entitled to. This is the recognized rule under the Code, as will be shown, and it conform? to the spirit of the equity system. Under that system it has sometimes been held that in bills for discovery merely the chancellor should retain the cause and give full relief, although that is not the universal rule unless equitable relief is also sought. Mr. Story says that, " in bills of discovery seeking relief, if any part of the relief sought be of an equitable nature, the court will retain the bill for complete relief;" and that, "in matters of account, fraud, accident, and mistake, the jurisdiction for relief will gener- ally, but not universally, be retained."^ The approved rule seems to have been that if the jurisdiction was but ancillary to a legal action, was for discovery merely, the party was remanded to a coui-t of law for relief; but when the court has jurisdiction for relief as well, the chancellor will try the whole cause and ' Lane v. Gluckauf, 28 Cal. 288. The same view is taken in Cassacia v. Phoenix Ins. Co., 28 Cal. 628, and the case is distinguished from causes of actions sounding in tort. ^ "Wright V. Jacobs, 61 Mo. 19 ; Armstrong v. City of St. Louis, 3 Mo. App. 100. In neither of these cases was there anything in the petition from which the amount found to be due could be computed. 8 Story's Eq. Jur., g 73. 213 § 167 OF PLEADINGS. [PAET II. give the party any relief, whether legal or equitable. The court will not drive the plaintiif to an action in the law courts after the determination of his suit in equity.^ The limit of the chan- cellor's power as to legal relief has never been clearly established. The general doctrine is correctly stated in the text, but in the jealousy anciently existing in the common-law courts, the chan- cellor was often cautious in assuming the power to render a money judgment, when it could have been obtained without an appeal to him. Thus, in a bill to foreclose an equity of redemp- tion by sale, when the mortgage was given to secure an inde- pendent obligation, the chancellor would not, perhaps, give a decree for the debt, the balance, after sale, to be recovered by general execution ; for a judgment at law might have been ob- tained without the bill. But, ordinarily, the party is unable to sue at law until some obstacle has been removed — as, in such a mistake in a contract as would preclude a suit for damages, the mistake must first be corrected. In such case, when the chan- cellor obtains jurisdiction to correct the mistake, the party is not compelled.to bring a new suit to enforce the contract as cor- rected. § 167. The Rule under the Code. — The obligation under the Code to give full relief is greater than in the courts of equity. We have no longer suits in equity and actions at law — they are all civil actions. The application for redress is not to a court of law or of equity, but to the one court, which is required "to determine the ultimate rights of the parties upon each side ; ' ' and in any action it will give him the relief to which he, by his pleadings and evidence, shows himself entitled, without regard to any former designation as to its character. If the equity court would refuse to do justice by halves — if, in favor of com- plete justice, it would go beyond its ordinary jurisdiction — how much more, under the reformed system, will a court having com- plete jurisdiction give a suitor full and complete relief? Disas- trous consequences might follow the opposite view. One is enti- tled to damages for breach of a contract ; but, by mistake of the ' 1 Dan. Ch. Pr., 4th Am. ed., 548, note 1 ; Fonbl. Eq., 4tli Am. ed., 26, note ; Bisp- ham's Eq., § 565. 214 OI- ^11- ] OF THE COMPLAINT. § 168 scrivener, he cannot enforce it until reformed. If he must first bring his action to reform the instrument, and wait until that relief is obtained before suing for damages, he may never recover them, for the reason, perhaps, that the statute of limitations may in the meantime have run, or the defendant may have become bank- rupt. And so, it may be necessary to reform a lease, or a deed of conveyance, or set aside a conveyance for fraud, before eject- ment will lie ; and when the party shall have obtained his so- • called equitable relief, the term will, perhaps, have expired, or the statute of limitations will have barred his action. This re- sult, it is said, may be avoided by uniting in the same petition, by different statements or counts, the so-called legal and equi- table causes of action. But this cannot be done in the case sup- posed, for the reason that each statement must embody a sepa- rate and independent cause of action — one that could be prose- cuted alone — and there is no legal cause of action until the court has given the equitable relief. It follows, then, that there is but one cause of action, and, the issues being triable by the court, it is still called a cause for equitable rehef. § 168. Continued — The Ruling in Ifew York. — In an early case in the Supreme Court of New York the plaintiff sought the reform of a written agreement, and damages for its breach as re- formed. In deciding that he was entitled to the latter relief, as well as the former, the judge presiding (Welles) remarked : " Having presented a case of equity jurisdiction exclusively, with a view to the reformation of the written instrument, it is no objection to the practical relief which he seeks that it could be given in a court of law upon the contract after it shall be re- formed. It would be a reproach to the administration of justice to turn the party over to another tribunal, or to another form of action in the same tribunal, to obtain the relief which he was obliged to appeal to its equitable jurisdiction in order to be put in a condition to ask for. The rule in respect to a court of equity is that, the jurisdiction having once attached, it shall be made effectual for the purposes of complete relief." ^ This view has been uniformly taken in the Court of Appeals. An action > Gooding v. MoAlister, 9 How. Pr. 123. 215 § 169 OP PLEADINGS. [PAET II. had been brought to reform a contract of insurance, and for the amount covered by the policy. In reviewing the action below, the opinion disposed summarily of the objection to the double relief by saying : " There was nothing in the objection that the court should have stopped with reforming the policy, and turned the plaintiffs over to a new action to recover their damages. The rule of courts of equity was, when they had acquired jurisdic- tion, and had the whole merits before them, to proceed and do complete justice between the parties."^ In another case the plaintiff had purchased land belonging to defendant at execution sale, but it appeared that the defendant had held it, and it was sold, under a misdescription. He brought suit to correct the description, and for possession ; and the Court of Appeals held that "the plaintiff, claiming under a defective deed, and showing sufficient ground for its reform, may have the same remedy as if he had brought two actions — one to reform the instrument, and one to enforce it as reformed." ^ In Worrall v. Munn^ the court goes further, and assumes as undisputed the authority as stated in the following syllabus of the case : " When a court of equity sustains a bill filed to compel the specific performance of a contract for the conveyance of lands, and decrees such conveyance, it is within the proper exercise of its jurisdiction, and according to its modern practice, to give fiiU and complete relief, by awarding to the plaintiff, not only the conveyance to which he is entitled, but also the damages which the defendant has caused by his refusal and delay in the performance of his contract ; and these may be ascer- tained by the court in any mode which its discretion approves." § 169. The Ruling in other States. — In Wisconsin, with no statute to authorize it, a mortgagee, in an action for foreclosure by sale, may take a personal judgment against the mortgageor ' Bidwell V. Astor Mutual Ins. Co., 16 N. T. 263. 2 Laub V. Buckmiller, 17 N. Y. 626. See, also, New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357, reforming an insurance policy, and giving judgment as re- formed. Also, Lattin v. McCarty, 41 N. Y. 107, holding that in an action to set aside a fraudulent deed, and for possession of the premises covered by the deed, there was but one cause of action. And Getty v. Hudson River R. Co., 6 How. Pr. 269, giving damages for obstructing a private water-way, and enjoining its continued obstruction. » 38 N. Y. 137. 216 CH. XII. J OF THE COMPLAINT. § 169 for any balance that remains unsatisfied after the sale of the mortgaged premises;^ and in an action to enforce a vendor's lien, the plaintiff is allowed to take a personal judgment.^ In most of these cases the double relief is improperly spoken of as a union of two causes of action,^ although it does not appear that they were separately stated, as is required in case of such union. In Minnesota, in an action to reform an insurance policy, the plaintiff also sought to obtain judgment for the amount due upon it as reformed. It was called by the court a union of two causes of action, although there could have been no action for the money until the policy had been reformed.* So, in Nebraska, a plaintiff sought to reform an official bond, and damages for its breach. It was also treated as a proper union of two causes of action.^ In Indiana, the 71st section of its Code authorizes the correction of mistakes in title papers, or other instruments of wx'iting, in any action when such mistake is essential to a complete remedy. In applying this statute to a promissory note, the court thus speaks in regard to the judgment : " It is insisted that the court should first have entered up a judg- ment reforming the note, and then have allowed it, as reformed, to be given in evidence at the trial. We perceive no valid rea- son for that precise mode of practice. Neither the letter nor the spirit of the statute requires it. It is enough if the court, as in this instance, find the mistake and correct it, and then render a final judgment in the case in accordance with such findino-." * A case has arisen in North Carolina, since the adop- tion of the Code by that state, in which the right to pass upon a mistake in a note, and, at the same time, find the amount due upon it, seems to have been conceded.' This right to complete 1 Sauer v. Steinbauer, 14 Wis. 70 ; Gary v. Wheeler, 14 Wis. 281 ; Jesup v. City- Bank, 14 Wis. 331 ; Stillwell v. Kellogg, 14 Wis. 461 ; Faesi i;. Goetz, 15 Wis. 231. * Stephens' Administrator v. Magor, 25 Wis. 533. » Ante, II 114^116. * Guernsey v. American Ins. Co., 17 Minn. 104. * Stewart v. Carter, 4 Neb. 564. In neither of these cases was the equitable cause of action sustained, but they show the difficulty of distinguishing between two causes of action and a single cause with two kinds of relief. « Kigsbee v. Trees, 21 Ind. 227. See, also,, Monroe v. Skelton, 36 Ind. 302. ' McCown V. Sims, 69 N. C. 159. ill § 170 OF PLEADINGS. [PAKT II. relief in one action may be said to be now universally con- ceded, and the right is generally treated as springing from a single cause of action. o § 170. Continued — The Doctrine in Missouri. — The Su- preme Court of Missouri seems to have adopted the view, although not stated in these precise terms, that the Code had changed the equity rule that, inasmuch as a plaintiff could unite in one peti- tion, by separate statements, causes of action of a legal and equitable nature, he should not, if he has failed to do so, be granted legal relief in an equitable action. The reason formerly given for giving such relief, to wit, that a multiplicity of suits is thereby avoided, cannot exist when the plaintiff is expressly allowed, by a separate statement, to attach the legal to the equitable cause ; and the objection to it is that, in a money demand, or in a demand for the restoration of specific property, the defendant has a right to a trial by jury, which would be denied him if the court should take the whole matter into its own hands and give a money judgment in an equitable action.^ • In Peyton v. Rose, 41 Mo. 257, being an action to recover possession of land, to vacate a conveyance upon the ground of fraud, and vest the title in the plaintiif, the court treated the petition as containing two causes of action in one count — one of ejectment, and one for equitable relief — and held the joinder to be erroneous. Judg- ment below had been rendered for the plaintiff both for possession and for title. But this judgment was reversed, the prayer for possession was treated as'surplusage, and judgment was given in the Supreme Court for title only, leaving the plaintiff to a new action for possession. So far as treating the supposed misjoinder as ground for reversal, no objection having been made to it by demurrer or by motion, the doctrine of the case was overruled in House v. Lowell, 45 Mo. 381; but the general view of the court was acquiesced in in several cases, without discussion, until Henderson v. Dickey, 50 Mo. 161, where it was materially modified. This was an equitable action for title, for damages, and for possession of the land. The court below had given a judgment for title only ; the plaintiff appealed, and the case was sent back with directions to award a writ of possession, the Supreme Oourt treating the prayer for damages as surplusage, but intimating that damages could not be awarded except upon a separate cause of action, and upon verdict of a jury. The opinion of the court, after clearly stating the rule of pleading that different causes of action must be embodied in separate statements, refers to Eose ii. Peyton, and the other cases, claim- ing that the errors consisted in the non-observance of that rule, and continues as fol- lows: "Had the petitions been drawn in accordance with the rules of pleading laid down in the Code, and contained separate counts, with appropriate prayers for relief or judgment, as warranted by the law applicable to the different causes of action, a different question would have been presented. The Code of Procedure, 218 CH. XII. J OF THE COMPLAIIsT. § 171 § 171. The Objection to this View. — This reasoning is spe- cious when the plaintiff has in fact a legal cause of action, so called. It may be reasonable not to permit one who has a money demand, which is ripe at the commencement of the suit, to evade a jury trial by hiding it under an equitable cause of action, and to require the plaintiff, if he would unite them in one proceeding, to embody each in separate statements as separate causes of action. But the objections to this view are twofold: First, a party usually asks the aid of a court in the exercise of its equita- ble jurisdiction when, without it, he has no claim for the money or for the specific property which he seeks. The legal demand, so called, does not arise until after the decree of the chancellor. When the mistake in his contract is corrected, when the deed that interferes with his title is set aside, when the constructive trust is declaimed — then his power to enforce his money or prop- erty demand begins. In such case there is but one cause of action, and there can be no separate statement. Second, if the money demand be perfect at first, this objection does not lie ; but even then, in collecting a debt secured by a lien, there is but one cause of action, but one wrong, although two actions may be based upon it. The money demand may be separately prose- cuted, and the wrong — the cause of action — is the refusal to pay it ; and if he seeks to enforce the lien, the plaintiff has the same cause of action, only another remedy, and he will obtain other relief. Formerly this twofold relief was sought in different courts, and by a different mode of procedure ^- one was called an action at law, and the other a suit in equity. The necessity for resorting to different courts, or to the legal and equitable sides of the same court, no longer exists ; but the aggrieved party may have all the relief to which he is entitled by one action. In seek- authorizing the joinder of equitable and legal causes upon their separate statement in distinct counts, was passed for the purpose of preventing circuity of action and multi- plicity of suits ; hut it applies simply to the form and manner of action, and was not designed to change any principle of law. Why the distinction must be kept up be- tween legal and equitable proceedings is obvious to all. In an action at law there is a constitutional right to a trial by jury, which has no existence in equity. It seems to be conceded, in all the states where the new system of pleading prevails, that when legal and equitable causes of action are united, as to the former, on the trial, the issues must be submitted to the jury, and cannot be passed upon by the chancellor." 219 § 173 or PLEADINGS. [PAKT U. ing what is still called legal and equitable relief, he does not unite different causes of action, for there is but one, but seeks the twofold relief in one proceeding; therefore there can be, in such case, no union of causes of action by separate statements. The pleader, in seeking the full relief, should embody in his own statement all the facts showing the obligation and its breach, to which should be added a statement of those facts which show the lien, and he will ask for the different kinds of relief which is sought ; or, if he seeks the money judgment only, he will stop with the obligation and breach. The Oath. §172. 4. The Object in requiring it. — The requirements as to the oath differ in the different states. Its object, as before shown ,^ is to secure honest issues, to confine the litigation to matters really in dispute between the parties. § 173. The Oath as required in certain States. — In New York a pleading may, or may not, be sworn to. The plaintiff is at liberty to SAvear to his complaint, or may omit the oath ; but where any pleading is verified, every subsequent pleading, except a demurrer, must be verified also. Thus, if one brings an action upon a demand which he is unwilling to verify, any defense may be made without the restraint of an oath. The verification, when made, is similar to that required in equity practice, and must be to the effect that the statement is true, to the knowledge of the person making it, except as to those matters stated on informa- tion and belief, and, as to those matters, he believes it to be true. It must be made by the party, or, if there are more than one, by one who is acquainted with the facts, by an oflSicer of a corpora- tion, or by any one on behalf of the state. It may be made by an agent or attorney, if the action or defense be upon a written instrument in his possession, or if the material allegations be within his personal knowledge, when he shall give his knowledge or grounds of belief, and the reason why not made by the party. The verification may be omitted where the party would be privi- 1 Ante, I 138. 220 CH. XII.] OF THE COMPLAINT. § 173 leged from testifying as a -witness to the truth of any matter denied by the pleading. In Ohio every pleading of fact must be verified by the party, or by one of several parties united in in- terest and pleading together, or by his agent or attorney ; and the verification is sufficient if it states that the affiant believes the facts stated in the pleading to be true. It may be made by an agent or attorney under similar circumstances as in New York. In Iowa the requirements as to verification are similar to those in New York, except that the affidavit must be to the eff'ect that the party making it believes the statements made in the pleading to be true. In Missouri, Indiana, etc., no verification is required. There are details in the statutes of all the states which require the oath which belong rather to practice than pleadings, upon which I shall not enter.^ ' Por tlie reasons named in the text, and because the language of the different codes upon the subject varies so considerably, I have not sought to be critically accurate. Bach pleader must refer to, and be governed by, his own statute. See, upon this subject, Code Civ. Proc. N. T. 1876, J? 523-529; Code Ohio, gj 106-113; Code Iowa 1873, II 2669-2680, etc 221 § 174 OF PLEADINGS. [jfABT II. CHAPTER XIII. EULBS GOVERNING THE STATEMENT. 1. What should not be stated. Section 174. Classification of the Subject. RULE I. Facts which the Law presumes should not he stated. Sbotion 175. Scope of the Rule. RULE II. Facts necessarily implied should not be stated. Sectiok 176. Scope of the Eule. RULE III. Facts should not be stated of which the Court will take judicial Notice. Section 177. Classification of Matters to which the Rule applies. 178. 1. Laws — International, commercial, ecclesiastical. 179. The Common Law and old English Statutes. 180. When differently held in diflferent States. 181. Of what Statutes will the Court take Notice ? — The best Source of In- formation. 182. When are Statutes public? 183. As to private and foreign Statutes. 184. Private Statutes and the Code. 185. Treaties — Proclamations. 186. Civil Divisions within the State. 187. 2. Matters of general ISlotoriety, including the recognized Pacts of Science. 188. The general Course of Nature. 189. Facts of Geography — Existence and Location of Places. 190. Eacts of current History. 191. The Meaning of Words, and Computation of Time. 192. 3. Pacts of a mixed legal and public Nature. 193. The Existence, Relations, and Symbols of civilized Nations. 194. Legislative Bodies and their Journals. 195. Officers of State. 198. Courts — Their Officers and Rules. 197. Official Seals. 198. Other Matters of Law and Notoriety. 199. 4. Matters peculiarly within the Court's Knowledge. 222 CH. XIII. j WHAT SHOULD NOT BR STATED, § 174 RULE IV. One should not anticipate a Defense. Section 200. The Eule not a ne.w one — Its Application. 201. Apparent Exceptions. 202. As to Exceptions and Provisos in Contracts and Statutes. 203. The Exception may be in a subsequent Clause. 204. The Kule as applied to the Statute of Frauds. 205. The Eule as applied to the Statute of Limitations. RULE V. Evidence should not be pleaded. Section 206. The Rule reasonable — Pacts distinguished. 207. Illustrations. 208. Difficulties in applying the Eule. 209. Still, Matters of Law are not pleaded. RULE VI. Conclusions of Law should not be pleaded. Section 210. To be distinguished from Conclusions of Pact. 211. The Distinction in pleading Fraud and Negligence. 212. Some Instances of legal Conclusions. 213. A Pleading with this Vice sometimes held sufficient. RULE VII. No Fact should be stated which is not pertinent, and whose State- ment is not necessary. Section 214. Irrelevancy, Redundancy, etc 215. Surplusage. § 174. Classification of tlie Subject. — All that the author proposes to say in regard to the title of the complaint or petition, and to the relief, has been said ; but to the rules governing the statement of facts much more attention should be given, and these rules will be classed under three heads : first, those that show what should not be stated ; second, those that show the facts accompanying the main charge that must be stated ; and, third, the form of the statement, or manner of stating the facts. Under these heads will be given certain rules of pleading per- taining to the statement, which are still in force, with occasional reference to those that are abrogated. The Code purports to abolish the old rules of pleading, and declares that pleadings shall be governed alone by its provisions, yet it names spe- cifically but few of those to be hereafter considered ; most of them are implied from its general and comprehensive provis- ions. In considering, first, what facts should not be stated, we have — 223 § 176 OF PLEADINGS. [PAET H. B ULE I. Facts which the Law presumes should not be stated. § 175. Scope of the Rule. — " When the law presumes a fact, it should not be stated;"^ thus, the law presumes every man innocent of crime or of fraud, that he is of good character, that he has capacity to contract, that he is free, that he is not indebted or a bankrupt, that he has not been negligent in the perform- ance of a duty, that his business has been transacted legally. The facts thus presumed should not be pleaded ; but if to be put in issue, the contrary averment must come from the other side,^ although some of the old precedents, in actions for injuries to character, violated the rule by alleging the good character of the plaintiff — always unnececsary. The law also presumes the fact of consideration in contracts evidenced by sealed instruments, or by negotiable promissory notes or bills of exchange. Their execution and delivery import consideration ; hence it need not be alleged. The statutes of some of the states have extended the scoj)e of this presumption to most, or all, written promises ; and, as to them, a want of consideration is but matter of defense.^ Akin to these presumptions of fact are facts which are implied from, the statement of other facts ; hence we have * — RULE II. Facts necessarily implied should not he stated. § 176. Scope of the Rule. — Thus, when the statute requires the acceptance of a bill to be in writing, it is sufficient to allege that it was accepted, the statement implying that it was properly done — that is, in writing.^ So with a guaranty.* An allegation that a bill or note is payable to, or was indorsed to, the plaintiff, implies that he is the owner and holder, which need not be alleged.' If the facts stated which imply title are true, and he is 1 1 Chitty's PI. 221. » Ibid. ' See, post, upon pleading consideration, ^J 268, 269. * See, as to facts presumed, Stroebe v. Fehl, 22 Wis. 337. 6 Bank of Lowville v. Edwards, 11 How. Pr. 216. 6 Miles V. Jones, 28 Mo. 87. ' Farmers & Mechanics' Bank v. Wadsworth, 24 N. T. 547 ; Keteltas v. Myers 19 N. y. 231. 224- CH. XIII.] WHAT SHOULD NOT BE STATED. § 176 still not the party in interest, it is matter of defense. If one pleads that he has revoked a submission to arbitration, it implies notice to the other party ; ^ for there can be no revocation with- out notice. In pleading a judgment or determination of a court, or an officer of special jurisdiction, the Code makes it sufficient to say, as a legal conclusion, that such judgment or determina- tion has been duly given or made, without giving the facts that confer jurisdiction.^ The statutory statement is made to imply these facts, and a denial that the judgment or determination was duly given or made puts all jurisdictional facts in issue,' but this provision does not apply to foreign judgments.* A con- veyance by gift or feoffment implies delivery of possession;' and in coimting upon the covenants of a deed, its delivery need not be alleged, that being implied ;® and the same is tmplied in regard to obligations generally upon which suit is brought.' If one at common law pleaded that he is heir to another, he need not say that the other is dead, for that is implied.* Nemo est hceres viventis.^ This rule is sometimes invoked to excuse the 1 Bac. Abr., pi. i, 7 ; Allen v. Watson, 16 Johns. 205. 2 Code Proc. N. T., ? 161 ; Code Civ. Proc. 1876, J 532; Code Proe. Ohio, ? 120; Bullitt's Code Ky., J 122, omitting the qualification of special jurisdiction ; Code Civ. Proc. Cal. 1874, \ 456 ; Wag. Stat. Mo. 1020, § 42 ; Code Iowa 1873, J 2714 ; Rev. Stat. "Wis. 1871, p. 225, ? 25; Code Civ. Proc. Minn., § 95; Code Civ. Pi-oo. Greg., I 87; Code Civ. Proc. Kan., § 121; Code Civ. Proc. Neb., § 127; Dig. Ark. 1874, I 4603; Code Civ. Proc. N. C, I 123 ; Code Civ. Proc. S. C, I 186 ; Code Civ. Proc. Col., ^66. " Wheeler v. Dakin, 12 How. Pr. 542. * Hollister v. Hollister, 10 How. Pr. 539. s 1 Chitty's PI. 221. Quaere as to deeds of bargain and sale, especially in those states permitting conveyances of land held in adverse possession. « 1 Chitty's PI. 365. ' Prindle v. Caruthers, 15 N. T. 425 ; Keteltas v. Myers, 19 N. T. 231. ' Com. Dig., pi. E, g; 2 Saund. 305 a, note 13. This does not dispense with the ne- cessity in real actions, brought by the heir on the seizin of his ancestor, of showing specifically and correctly how he is heir. 2 Saund. 45 e, note ; Treasurer v. Hall, 3 Ohio, 225. ' This maxim is not strictly true. The word "heir" may be used in the sense of ^' child " or " heir apparent." Lockwood v. Jesup, 9 Conn. 272 ; Cox v. Beltzhoover, 11 Mo. 143. Lockwood v. Jesup was a suit upon a note payable to the heirs of John Jesup, who was living, the declaration averring that the plaintiffs were the children and presumptive heirs of .John .Jesup, and that the promise contained in the note ■was made to them by that title ; and the declaration was sustained on demurrer. 225 § 178 OF PLEADINGS. [PAKT II. pleader, in counting upon a contract within the statute of frauds, from stating that it was in writing, its legality being implied. BULE III. Facts should not be stated of which the Court will take judicial Notice.^ § 177. Classtfication of Matters to wMch the Rule applies. — The things of which the court takes judicial notice are, first, public laws, or matters evidenced by public law, which all are presumed to know ; second, matters of such notoriety, including the commonly recognized facts of science, as to be supposed to be generally known ; third, matters of mixed law and notoriety; and, fourth, matters peculiarly within the knowledge of the par- ticular court. « §178. 1. Iijaws — International, commercial, ecclesiastical. — The law of nations, or international law, according to Vat- tel, is the science which teaches the rights subsisting between nations or states and the obligations correspondent ; or, according to Bentham, it is a system of rules deducible by natural reason from the immutable principles of natural justice, and established by universal consent among the civilized inhabitants of the world ; and it is obvious from its definition that no issue of fact can be made in regard to its precepts. It has no special or local appli- cation, but is universal ; and a court, in noticing it, does not take cognizance of a foreign code, but of one to which it is subject, and which it is bound to enforce. The law-merchant is "a system of customs acknowledged and taken notice of by all commercial nations, and these customs constitute a part of the general law of the land ; and, being part of that law, their existence cannot be proved by witnesses, but the judges are bound to take notice of them ex officio . " ^ Those provisions only of the law-mer- chant will be thus noticed which have been incorporated with the • This rule is made statutory in the codes of some of the states ; Bullitt's Code Ky., I 119 ; Code Civ. Proc. Ind., I 88 ; Wag. Stat. Mo. 1020, J 39 ; Code Civ. Proc. Ohio, I 129; Code Civ. Proc. Kan., J 130; Code Civ. Proc. Neb., § 136; Code Iowa 1873, I 2722 ; Dig. Ark. 1874, § 4598. • Bouv. L. Die, title "Law-merchant." 226 CH. XIII. J WHAT SHOULD NOT BE STATED. § 179 law of t!he land,^ and the particular laws of a foreign state bearing upon the subject — as, the allowance of days of grace — will not be judicially noticed.'' Mr. Greenleaf says that ecclesiastical, as well as civil, laws are thus noticed ; but this can be true only of such as are part of the law of the land, and such ecclesiastical usages as have become so notorious as to be known to all. In the United States, as to all church organizations, and in England, as to those not sustained or governed by civil authority, their internal regulations, whether of a secular or religious nature, must be treated as those of other voluntary associations or pri- vate corporations. The author doubtless referred to ecclesiastical laws, administered in England by ecclesiastical courts, which affect civil rights — as, concerning marriage and divorce, the settlement of estates of deceased persons, etc. — which are part of the public law. § 179. The Common ILaw and old English Statutes. — The common law of England, modified to suit their new conditions, was brought to the original colonies, was retained after they passed from under British jurisdiction, was extended to the sparsely-settled or unsettled portions of the country claimed by the different states, and has been adopted in those states, except Louisiana, whose territory has been acquired from other powers. " It has been assumed by the courts of justice, or declared by statute, * * * as the law of the land in every state."' The common law, through all its changes, other than by statute, is, by a convenient fiction, supposed to be always the same. Hence we do liot inquire what, upon a given question, the law was held to be when first domiciled or adopted, but courts seek lio-ht from all sources ; will call to their aid the decisions of for- eign common-law courts, as well as the rulings of their own courts ; and when at a loss, will not repel aid from other systems of jurisprudence. It is thus the common law is enriched and perfected. A departure, then, in the courts of England, or in the courts of the states, or in the Federal courts, from the re- 1 1 Ph. on Ev., ch. 10, ? 1. ' Bowen v. Newall, 13 N. T. 290. 5 1 Kent's Com. 472. 227 § 180 OF PLEADINGS. [PAET II. ceived understanding in regard to some docferine of the ftommon law, or modification of the old view, is not a new, or a foreign, law, but the old, unchangeable common law as understood in the given court ; and the court will weigh the reasons for such de- parture or modification, and decide — or, rather, take judicial notice of — what the common law is, either as thus apparently changed or as before understood. Not only the common law proper, but "it is also the established doctrine that English statutes passed before the emigration of our ancestors, and, applicable to our situation, and in amendment of the law, con- stitute a part of the common law of this country."^ The au- thority of the old English statutes is not always left to inference, but in some of the states is expressly declared by statute. § 180. When differently held in different States But reasons that produce changes in one court fail in another ; hence, as to certain doctrines of the common law, there are diiferent rul- ings in difi'erent jurisdictions. And, besides, the common law is nowhere adopted absolutely and in all its jDarts, but only as adapted to our condition and circumstances. Thus, in most of the western states wild and uninclosed lands are held to be so far subject to rights of common that cattle grazing upon them are not trespassers, and the owner, to secure sole enjoyment of his land, must inclose it. And in California and Colorado the common law concerning the right of riparian owners in regard to water-courses is ignored, and rules adopted analogous to the law pertaining to the ownership of animals /eroe naturm. Water is essential to mining and irrigation, and for these 'purposes the common-law doctrine would render its use very limited or impos- sible. The question will then arise, when a party seeks the pro- tection of the unwritten law of a foreign state, which has adopted the common law, differing from that of the forum, whether it is a foreign law, to be pleaded and proved. Courts assume, in the absence of evidence, that the common or unwritten law of another state is the same as its own,''' and will take notice that 1 1 Kent's Com. 473. ' Holmes v. Broughton, 10 "Wend. 75 ; Cox «. Morrow, 14 Ark. 603 ; Averett v. Thompson, 15 Ala. 678 ; C. & H. note 413 to 2 Ph. on Ev., 4th Am. ed., 429, 430. 228 CH. XIII. J WHAT SHOULD NOT BE STATED. § 181 common-law felonies are crimes everywhere.^ If the laws differ, they mnst be proved as facts,^ and must be pleaded. There can, upon principle, be no difference in this respect between the unwritten and statutory law.' § 181. Of what Statutes will tlie Court take Notice ? — The best Source of Information. — Public domestic statutes, whether repealed or still in force, are judicially noticed, and should not be pleaded. The rule, though a general, was not a universal, one in common-law pleading, for we find certain declarations charging that the act complained of was contrary to the form of the statute in such case made and provided, with the averment that by virtue of the statute an action has accrued, or words equivalent.* The rule as applied to public statutes was that ' Poe V. Grever, 3 Sneed (Tenn.), 668 ; Bundy v. Hart, 46 Mo. 463. It is sometimes said that courts will presume that the statutes of other states are the same as those within the court's jurisdiction. The more reasonable view would seem to he the one given by Allen, J., in Throop v. Hatch, 3 Abb. Pr. 23. He says : "It is well established that the common law is presumed to have originally existed in all the states of the Union, except, etc. ; and it is a well-established presumption of law that things once proved to have existed in a particular condition continue in that condition until the contrary is established by evidence either direct or presumptive. Best on Ev. 186. Each state having the sole power to legislate for itself, and change the common law therein by act of the Legislature, it would seem to follow that until there were some proof that the common law had, by legislation, ceased to be the law of the land, it would be presumed to be in force. I can see no foundation for the presumption that because one state has seen fit to dispense with the rules of common law, and provide others for the government of its citizens, upon a given subject, the Legislature of every other state has been like minded. I speak now of matters which are known to, and, in the absence of an overruling statute, are governed by, the common law. There are matters in relation to which the common law does not speak, which are regulated solely by statute, and in regard to some of these matters it is not impossi- ble that our statutes may be presumed to be the same as those of the other states, or, rather, the laws of other states, in the absence of evidence, are presumed to be the same as those of our own." See the authorities cited in the opinion. 2 2 C. & H. notes to Ph. on Ev. 433. ' But the courts of Louisiana take judicial notice that the common law prevails in other states (Copley v. Sanford, 2 La. An. 385; Kling v. Sejour, 4 La. An. 129), and will look for information to the English reports, which are authority in those states (Young v. Templeton, 4 La. An. 254) ; also take notice of all military orders affecting courts, issued by the military governor while New Orleans was held by United States troops (Lanfear v. Mestier, 18 La. An. 497 ; Taylor v. Graham, 18 La. An. 656 ; New Orleans Canal and Banking Co. v. Templeton, 20 La. An. 141). * 2 Chitty's PI. 493 et seq. 229 § 181 OF PLEADINGS. [PART II. ordinarily, and where the statute was remedial, although the lia- bility was created by it, it sufficed to state facts which brought the party within its provisions ; but if it was penal, it must be counted on — i. e., expressly referred to as above. The rule was stated in New York ^ shortly before the adoption of the new system. The action was upon a replevin bond taken under the statute, and the declaration was objected to as not averring that it was taken in pursuance of the statute. The objection was overruled, the court giving the general rule now being consid- ered, and holding it to be unnecessary to plead a public stat- ute, but adding that, "in criminal prosecutions for an offense created by an act of the Legislature, a reference to the statute is required for the purpose of informing the defendant distinctly of the nature and character of the offense ; and so in penal ac- tions founded on a statute, for substantially the same reason." These were actions of debt on statute, and the rule requiring a reference to the statute as above, although a matter of form, was always enforced. It is not believed that under the Code there is any more necessity for referring to a public statute in penal than in other actions.^ All mere forms are abolished, and this was a formality merely. Also, the court takes judicial no- tice of public statutes, and the rule is universal that matters of which judicial notice is taken need not be stated.' The New York statutory form of counting upon a penal statute cannot be followed in other states. The Kevised Statutes of 1830* au- thorized the pleader, in actions of debt for a statutory penalty, to allege that the defendant is indebted in its amount to the per- son for whose use the penalty is given, according to the pro- visions of the statute concerning, etc., giving the section, title, and chapter, or referring to it by other similar terms. The Su- 1 Shaw V. Tobias, 3 Comst. 188. « Sedgw. on Stat. & Const. Law, 113, 114. ' There is an express provision in the Missouri Code that "no allegation shall he made in a pleading which the law does not require to he proved" (Wag. Stat. 1017, I 18), which gives emphasis to the rule that matters shall not he pleaded of which the court will take judicial notice — i. e., which need not be proved. This clause is not usually found in other codes of procedure, but it is as clearly implied as though expressly stated. * 2 Kev. Stat. 482, J 10 ; 2 Stat, at Large, 504. 230 CH. Xin.1 WHAT SHOULD NOT BE STATED. § 182 preme Court * has held that this statute is not repealed by the Code, contraiy to its holding in a previous case.^ Another ex- ception is made, in California, to the mode of pleading a statu- tory right, where a party is authorized to plead the statute of limitations, by stating generally that the cause of action is barred by section — of the Code, etc.^ In noticing a public statute, the court will take the best mode of advising itself, and usually the published volumes of acts of the Legislature suffice ; but the original act in the office of the secretary of state is the ulti- mate resort, and the court will look to it for the purpose of cor- recting an error in the publication.* In New York certain acts of incorporation require a two-thirds vote of the Legislature, and a certificate to the enrolled copy stating whether the act was passed by a majority, or by a two-thirds, vote. This certifi- cate was not attached to certain laws as published, and it was held that the courts would take notice whether a statute pub- lished as having passed contained the proper certificate. ° § 182. When are Statutes public ? — Inasmuch as at common law private statutes must be pleaded and proved, it becomes important to determine what acts are public and what private. A private statute is such as concerns a particular species or person.* Statutes are not private because they are local, and one in its nature private will be deemed public if so declared by the Legislature.' A public act has been defined by the Supreme Courts of Indiana and Maine to be one which extends equally to all persons within the territory covered by its provisions, and » The People v. Bennett, 5 Abb. Pr. 384 ' Morehouse v. Crilley, 8 How. Pr. 431. • Code Civ. Proc. Cal. 1874, g 458. * Clare v. The State, 5 Iowa, 509. ' DeBow V. The People, 1 Denio, 9; Commercial Bank v. Sparrow, 2 Denio, 97; also, The People v. Commissioners, 54 N. T. 276. In this case the existence of the stat- ute was admitted by the defendant, but the court held that the parties had no right to make law, and that the alleged statute was defective. As to the right of a court to look behind a statute and behind the official certificate of the proper officers to see whether it properly passed, see Legg v. Mayor of Annapolis, 16 Am. Law Reg. 33-37, note 1 ; and Kendall Coijnty v. Post, 4 Cent. L. J. 137-139. « Bouv. L. Die » Bid. 231 § 182 OF PLEADINGS. [PART II. that it need not be general.^ Thus, an act giving the authoritifes of a town power to stop the sale of ardent spirits is a public one ; * and one conferring certain jurisdiction upon a particular County Court ;^ and in relation to the survey of timber in a county ;* or for the preservation of certain fish in a river.* A city charter would seem to be within this definition ;* also, the incorporation of a school district covering an area of territory, and exclusive within it. But a special act directing the survey of a particular tract of land is not a public one.'^ In England, charters are not 'Statutes, but grants by the king ; and both as to statutes and other facts, the scope of judicial knowledge seems to be more restricted than with us.^ In this country, in addition to those that come within the above definition of a public act, there are many statutes that concern distinctly particular persons, but as affecting the public, are treated as public. Among these are acts relating to banks,' and all acts creating corporations, whether sole or aggregate ;'° also a joint resolution imposing a particular duty upon a public officer ;" and a legislative grant to individuals, of part of the public domain in Maryland, affecting rights of fishery and navigation. ^^ In Kentucky, an act incorporating an education society,^' and an act establishing a town," were called private acts ; but as, in that state, it is not required to plead pri- vate acts, it was held that the court took judicial notice of them. The more recent constitutions of many of the states prohibit local and private legislation in certain enumerated cases, and require 1 Levy V. The State, 6 Ind. 281 ; Pierce v. Kimball, 9 Me. 54. See, also, Brett v. Mayor, 6 Eobt. 325. * Levy V. The State, supra. ■■■ Meshke v. VanDoren, 16 Wis. 319. ' Pierce v. Kimball, 9 Me. 54. s Burnham v. Webster, 5 Mass. 268. 6 The State v. City of Murfreesboro, 11 Humph. 217. ' City of Alleghany v. Nelson, 25 Pa. St. 332. 8 Ph. on Ev., ch. 10, J 1. 9 Douglas V. Bank of Missouri, 1 Mo. 24 ; Bank of Utica v. Smedes, 3 Cow. 662 ; Young t). Bank of Alexandria, 4 Cranch, 384 ; Owen v. The State, 5 Sneed (Teiin.), 493. '" Portsmouth Livery Co. v. Watson, 10 Mass. 91. " The State v. Delesdenier, 7 Texas, 76. " Hammond v. Inloes, 4 Md. 172. " Collier v. Baptist Education Society, 8 B. Mon. 68. " Halbert v. Skyles, 1 A. K. Marsh. 368. 232 CH. XIII. J WHAT SHOULD NOT BE STATED. § 183 it to be public and general ; and in Ohio all statutes printed by authority, though local or special, are declared to be public, of which the courts will take notice. § 183. As to private and foreign Statutes. — But courts will not take judicial cognizance of the existence or provisions of private legislative acts, or of foreign laws or statutes;^ hence they are facts to be pleaded and proved. Under the present practice of publishing, officially, private as well as public legis- lative acts, the same reason for distinguishing between theui does not exist as when the latter alone were so published ; and it is for that reason, doubtless, that courts, as seen in the last sec- tion, are inclined to classify all enactments not strictly personal among those that are public, and for that reason, also, the Code, as will be seen in the next section, has practically bridged over the old-time chasm between them. There is little danger of mistake as to foreign statutes — that is, those of other states and territories, and of foreign countries. They, or such parts of them as are necessary to be understood, must be set out in the pleadings, and proved like other facts. There is, however, an apparent exception, in the fact that courts will take judicial notice of such laws and statutes of other states and countries as are operative within their jurisdiction. Thus, the courts of Kentucky take judicial notice of the laws of Virginia common to the two states before their separation ; ^ and the courts of Indiana will notice certain statutes of Virginia in regard to a tract of land in the state called the " Illinois grant," concerning which the rio-ht to legislate was reserved by Virginia in its re- lease to the United States.^ The courts of California, also, judicially know that San Francisco, under its former government, was a pueblo — its powers, rights, general boundary, and juris- diction ; * and those of Missouri will take notice of the laws of France and Spain while under their dominion ; ^ and so will the 1 C. & H. note 413 to 2 Ph. on Ev., 6th Am. ed., 428, and cases cited. 2 Delano v. Jopling, 1 Litt. 117, 417. s Henthorn v. Doe, 1 Blackf. 157. * Payne v. Treadwell, 16 Cal. 220. 6 Chouteau v. Pierre, 9 Mo. 3 ; Anderson v. Biddle, 9 Mo. 580. 233 § 184 OF PLEADINGS. [PABT 11. Federal courts.' Upon the same principle, Tennessee courts will take notice of North Carolina grants.* But while the several states are so far foreisn to each other that the statutes of one state can only be brought to the knowledge of the courts of the other states as facts, yet their relation to the United States is such that the state courts will take judicial notice of the public statutes of the United States,^ and the courts of the United States, on the other hand, of the laws and jurisprudence of all the states and territories.* The rule is that every United States Circuit Court will not only take judicial notice of laws and public statutes in force within its territorial jurisdiction, but also of the laws of all the states of the Union, in cases to which they respectively apply ; hence the Circuit Court of Maryland should take notice of the laws of Louisiana affecting the validity of a paper offered in evidence.* § 184. Private Statutes and the Code. — The theoretical dis- tinction between public and private acts was far from being a formal one. The difference in the rule as to pleading and proving them has been noted. Private acts of legislation were placed upon a level with contracts ; issues in regard to them, as in re- gard to contracts, were submitted to the jury ; they took not the dignity of laws, but were, so far, treated like other matters per- taining to our private relations. The following section of the Code does much more than simplify the pleadings in actions founded upon such statute^s. It takes from the jury the issues pertaining to them ; or, rather, it destroys the issues of fact in 1 United States v. Turner, 11 How. 663. ' Kichards v. Hicks, 1 Overt. 207. It seems not to be necessary in Virginia to plead a private statute, although the court will not take judicial notice of it, as of public acts. Legrand v. Hampden Sidney College, 5 Munf. 324. Nor is it in Kentucky. Collier v. Baptist Education Society, 8 B. Mon. 68 ; Halbert v. Skyles, 1 A. K. Marsh. 368. And in Georgia (Herschfeld v. Dexel, 12 Ga. 582) and Vermont (Middlebury College v. Cheney, 1 Vt. 348) the courts have taken judicial notice of the statutes of other states. ' C. & H. note 413 to 2 Ph. on Ev., 4th Am. ed., 429, and cases cited ; Semple v. Hagar, 27 Cal. 163 ; Dickenson v. Breeden, 30 HI. 279 ; Wright v. Hawkins, 28 Texas, 452 ; Papin v. Eyan, 32 Mo. 21. * 0. & H. notes to 2 Ph. on Ev. 429 ; Jasper v. Porter, 2 McLean, 579 ; Jones v. Hays, 4 McLean, 521 ; Smith v. Tallaposa County, 2 Woods, 574. » Owings V. Hull, 9 Pet. 607. 234 CH. XIII. j WHAT SHOULD NOT BE STATED. § 186 regard to them as Imown to the old system: "In pleadmg a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof. "^ There- fore, when thus referred to by the pleader, they take the rank of public acts, and no issue to the country can be made in regard to them. The clause, however, refers only to domestic private statutes. Foreign enactments must still be pleaded.^ § 185. Treaties — Proclamations. — Treaties of the United States, as well as its laws, are declared to be the supreme law of the land, by which the judges of every state are bound ; ^ and they will take judicial notice of their existence and provisions.* The Federal courts will not only notice the treaties themselves, but also the public acts and proclamations of the governments with whom they are made, in carrying them into effect.^ Procla- mations of the highest executive authority are, within their proper scope, clothed with the authority, and often have the force, of law ; and they will be the subject of judicial cognizance in all courts within the political jurisdiction of such executive.' § 186. Civil Divisions within the State. — All civil divisions 1 Code Civ. Proc. Ohio, § 123 ; Code Civ. Proo. Ind., ? 85 ; Kev. Stat. "Wis., ch. 125, ?25; 2 Stat, at Large Minn. 1873, p. 801, ? 97; Wag. Stat. Mo. 1020, J 40; Code Civ. Proc. Kan., ? 124 ; Code Civ. Proc. Neb., ? 130 ; Code Civ. Proc. Cal. 1874, ? 459 ; Code Civ. Proc. Greg., ? 87; Comp. Laws Nev. 1873, 3»1124; Code Civ. Proc. ZsT. C, ? 123; Code Proc. S. C, ? 186 ; Code Civ. Proc. Pla., g 113 ; Code Civ. Proc. Col., J 68. The Code of Iowa of 1873 (g 2708) uses the general term "statutes," leaving out the word "private." The New York Code of Civil Procedure of 1876 (J 530) has changed the clause to read as follows: "In pleading a private statute, or a right derived therefrom, it is sufficient to designate the statute by its chapter, year of pas- sage, and title, or in some other manner with convenient certainty, without setting , forth any of the contents thereof" Bullitt's Code of Kentucky (J 1196) simply pro- vides that "in pleading a private statute, it shall be sufficient to refer to it by stating Its title, and the way In which it_became a law." The courts take judicial notice of such statutes. 2 Post, I 304. » U. S. Const., art. 6. < Baby v. Dubois, 1 Blackf. 255. » United States v. Eeynes, 9 How. 127. e Dunning v. The New Albany & Salem K. Co., 2 Ind. 437; 1 Stark, on Ev., 8th Am. ed., 735, note q. 235 § 187 OF PLEADINGS. . [PAET II. within a state that are created by law will be judicially noticed ; * and the courts will take cognizance of the existence and bounda- ries of counties, townships, and towns, so far as created and pointed out by statute ; ^ the rule being, when a city or town has been incorporated by a special act, that the courts will take judicial notice of its incorporation, but when organized under a general act, the facts showing the organization must be pleaded and proved.^ The existence of a town or county may be so noto- rious as to be judicially noticed ; but when the time of their organization becomes material to be known, and they are cre- ated, not by a public act, but by local authorities acting under a general law, the court cannot know such time* — it must be stated and proved. Nor wlien there has been a division of a county by an act which does not show to whicli division a par- ticular town is attached, can the court linow to which it belongs.* The courts will notice the existence and boundaries of judicial districts and the counties of which tliey are composed,^ and that a judicial district is within a county, although composing a part of it only.^ There is a difference in principle between the area and boundaries of civil divisions within the state and the exist- ence of places as geographical facts. The former are known so far only as evidenced by public statutes ; and the names of places adopting a general act concerning incorporations,^ and the time of dividing and erecting counties under a general law,' cannot be judicially known. § 187. 2. Matters of general Ifotoriety, including tlie rec- ognized Facts of Science. — In the next four sections will be given many of the facts judicially noticed by the court which are embraced in this division of the subject. It would be a mere 1 1 Stark, on Ev., 8th Am. ed., note q. » The State v. Jackson, 39 Me. 291 ; Stephenson u. Doe, 8 Blackf. 508 ; Bucking- house 1). Gregg, 19 Ind. 401. » Ingle V. Jones, 43 Iowa, 286 ; Hard v. City of Decorah, 43 Iowa, 313. * Buckinghouse v. Gregg, supra. * The State v. Jackson, supra. « The State v. Worrell, 25 Mo. 212. ' The People v. Eobinson, 17 Cal. 363. • Johnson d. City of Indianapolis, 16 Ind. 227. • Buckinghouse v. Gregg, supra. 236 CH. XIII.] WHAT SHOULD NOT BE STATED. § 188 trifling to require a party to plead and prove, or permit a jury to pass upon, facts so notorious as to be known to all intelligent persons ; they are, therefore, assumed by the court, and no issue will be permitted in regard to them. Like the law, which is supposed to be known even to the ignorant, they may not always be present to the memory or apprehension of judges ; in which case resort may be had to any available source of information. There are many facts of a scientific nature deemed so recondite as to require the testimony of experts, but these will necessarily, with the progress of knowledge, come more and more within the category of those of which the court will take notice ; and there are some of a geographical and some of an historical nat- ure concerning which there seems to be no precise and definite rule. § 188. The general Course of Nature. — The more obvious facts of natural science are judicially recognized, and are gener- ally classed under this head. The more recondite facts of natural philosophy, or of natural science, such as require investigation and special or professional knowledge, are not embraced in this class, but should, in a proper case, be pleaded and established by experts . But the class is large that will be j udicially noticed — as , the period of gestation ; ^ that salt, etc., are antiseptics ; that cer- tain crops mature at certain seasons.^ But as the time of maturity greatly varies in different parts of Illinois, and in different seasons, the courts will not notice the precise time. Facts of unvarying oc- currence will be noticed, but not the changes of climate and sea- sons.^ In passing upon old surveys, Bibb, C. J., remarks of a scientific fact involved : ♦« The variation of the magnetic meridian from the true meridian is recognized by statutes and by the former opinions of this court. That such variation was eastwardly of the true meridian at the time of the original survey (1774), that it had progressed eastwardly from that time until the time of making the survey preparatory to making the decree now com- plained of, is one of those principles acknowledged by scientific ' Rex V. Luffe, 8 Bast, 202. ' Ployd V. Kicks, 14 Ark. 280. » Dixon V. NiccoUs, 39 111. 372. 237 § 189 OF PLEADINGS. [PAET II. men which this court is bound to notice, as relative to surveys, as much as they would be bound to notice the laws of gravitation, the descent of the waters, the diurnal revolution of the earth, or the changes of the seasons." ^ But Bland, Ch., in Maryland, held that the fact that the concentric layers of the trunk of a tree marked its age was not sufficiently established to be judi- cially noticed ; but if the fact were proved as to one, it would be inferred in regard to others similarly circumstanced.^ § 189. Facts of Geography — Existence and Liocation of Places. — The general geography of the country will be judicially noticed,^ and its great geographical features — as, its lakes, rivers, and mountains ; * the navigable rivers of the country ; ^ the Falls of the Ohio ; ^ that the River Mersey in England is salt water, and that the tides rise high in it ; ' the great distance between Raleigh, North Carolina, and a given county in Tennessee.* I do not find any specific rule from which to determine what facts of a geographical nature will be judicially recognized. The great natural features of the country, and the leading ones of for- eign countries — as, its oceans, mountains, leading rivers, and great commercial cities — will doubtless be noticed. But will the court thus notice all the characteristics, say of a given river, as seems to have been done in Whitney v. Gauche?' The courts, where places are referred to in the pleadings, will take notice ot > Bryan v. BecHey, Litt. Sel. Cas. 95. ' Patterson v. McCausland, 3 Bland, 69. 3 Massman v. Forrest, 27 Ind. 233. • Winnipiseogee Lake Co. v. Toung, 40 N. H. 420. s Neaderhouser v. The State, 28 Ind. 257. « Cash V. Auditor, 7 Ind. 227. ' Whitney v. Gauche, 11 La. An. 432. " Park V. Larkin, 1 Overt. 17. ' A carrier malces a contract to transport merchandise to any point that shall he designated upon a certain navigable river. The plaintiif designates a place — say a city upon some of the rivers of distant American, or perhaps European, states — according to the contract. The pleader sets out the contract, the place designated, and the de- fault of the carrier, who is assumed to have landed the property at some other place. Will the court take judicial notice that the river is navigable at all? that the place designated is on the river? and that it was navigable at that place? Should not these facts be alleged and proved? And what is the difference between the judicial cogni- zance of such facts by the courts of international, and those of municipal, law? 238 CH. XIII. j WHAT SHOULD NOT BE STATED. § 190 their existence and general location ^ without an averment and proof of the fact, and if within the state, will know to what county they belong ; ^ but not the precise distance from one place to an- other.^ But when foreign places are referred to, the pleader must give the state or county in which they are situate, or the court mil suppose that some place by the name is intended within the state — as, when New York and New Orleans are spoken of simply by the city name, the court will not assume that they are in the states of New York and Louisiana;* and the words " at Virginia, to wit, in Greene Co.," will not be held to mean the state of Virginia, but some place in Greene County ; ° nor will a commission from a Missouri court, to take depositions in New Orleans, with a return by a magistrate of New Orleans, be judi- cially understood to be directed to, and returned from, New Or- leans in the state of Louisiana.^ The English courts will not no- tice, without an averment, that Dublin, mentioned in a bill of ex- change, is Dublin in Ireland.' The allegation "in the city of Janesville," without naming county or state, means in the state where the pleading is made.^ § 190. Facts of current History. — Judicial notice is taken of the existence of civil war as a fact in our domestic history, although not officially proclaimed;' that American corporations have been in the habit of openly making contracts in England ; " the common source of title to land — as, that the public lands in a certain county are held under the United States ; " that slavery was abolished by the war before its abolition by ordinance ; '^ that > The Indianapolis & Cincinnati R. Co. v. Stephens, 28 Ind. 429. ' The Indianapolis & Cincinnati B. Co. v. Case, 15 Ind. 42 : Martin v. Martin, 51 Me. 866 ; Hite v. The State, 9 Yerg. 381 ; Vanderwerker v. The People, 5 Wend. 630 ; Harding v. Strong, 42 111. 148. • Goodwin v. Appleton, 22 Me. 453. « Whitlock V. Castro, 22 Texas, 108. 5 Richardson v. Williams, 2 Port. 239. « Ober V. Pratte, 1 Mo. 80. ' Kearney v. King, 2 Barn. & Aid. 301. « Woodward v. The Chicago & North-western R. Co., 21 Wis. 309. " Prize Cases, 2 Black, 665. " Bank of Augusta v. Earle, 13 Pet. 590. " Lewis V. Harris, 31 Ala. 689. « Ferdinand v. The State, 89 Ala. 706. 239 § 191 OP PLEADINGS. [PART II. certain states recognized the existence of slavery ; ^ that a certain price charged for labor is extortionate, but without knowing what the price should be ; ^ that a certain currency was depreciated, but not how much ; ' that the Methodist EjDiscopal Church was separated and became two church organizations.* The general doctrine is thus stated by the Supreme Court of California : ' ' Courts will take notice of matters of public history affecting the whole people," ^ And was early stated by that of Kentucky, as follows : " Transactions and objects which necessarily connect themselves with, and form a part of, the general history or geog- raphy of the country ought to be taken notice of."* The dis- tinction between historical or notorious facts of which the court will take notice, and those historical facts which must be proved, is not very clear. The New York Court of Appeals^ holds that there must be competent evidence of historical facts, and that a local published history, especially if the author be living, is not admissible, quoting Morris v. Lessee of Harmer's Heirs, 7 Pet. 554, that " historical facts of general and public notoriety may be proved by reputation, and reputation may be established by historical works of known character and accuracy." Facts that require proof are not judicially noticed ; but this particular ques- tion is more one of evidence than of pleading.* § 191. The Meaning of Words and Computation of Time The court will take judicial cognizance of the popular meanino- of words and phrases' — as, what was understood in Kentucky at ' Kennick v. Chloe, 7 Mo. 197. 2 Bell V. Barnet, 2 J. J. Marsh. 516. " Bell V. Barnet, 2 J. J. Marsh. 51(j ; Modawell v. Holmes, 40 Ala. 391. * Humphrey v. Burnside, 4 Bush, 215. 6 Payne v. Treadwell, 16 Cal. 231. « Hart V. Bodley, Hard. 98. ' In McKinnon v. Bliss, 21 N. Y. 206. 8 Courts will perhaps take notice of facts known to the present generation as cur- rent public events, and require evidence of these happening in other eras or in foreio-n countries, although I have not seen that distinction made. They may also recognize events connected with our own history, or impressing themselves upon our institutions, as more likely to be generally known than others. 9 6 Vin. Abr. 491, title "Court," c, 6, 7; Towns, on Slander, 3 133, note 2, and i 173, note 7. 240 CH. XIII.J WHAT SHOULD NOT BE STATED. § 193 different periods by the words " currency and money," ^ but not the precise value of bank-notes at a particular time ; ^ also in Tennessee;^ the known abbreviation of the first name — as, " Jas." for " James," * or " Christ." for " Christopher ; " « that the word " cattle " includes horses, mares, etc. ;^ the significa- tion of the usual dollar sign.'' In libel and slander, if the mean- ing of the words charged is ambiguous, or not commonly under- stood, it must be set out by innuendo.* Also, the ordinary com- putation of time will be judicially noticed' — as, that a certain day of the week did not coincide with a given day of the month : ^° or, that a certain day of the month is Sunday ; " also, Christmas and other legal holidays, and the custom of merchants in regard to the maturity of paper falling due on such days ; ^^ the order of the months, and the number of days in each.^* § 192. 3. Facts of a mixed legal and public Nature. — There are many facts pertaining to the proceedings or action of the Legislature, or the executive, or which is the result of their action, or with which the government has a legal connection, but which are not fully shown by general law, that are brought within the official cognizance of the courts. They generally concern our foreign relations, legislative bodies, courts, and proceedings of a public nature under authority of law. §• 193. The Existence, Relations, and Symbols of civilized jfations. — We possess, through the political department of the 1 LamptoD-'w. Haggard, 3 Mon. 149; Jones v. Overstreet, 4 Mon. 547; 1 Stark, on Ev., 8th Am. ed., 735, note g. 2 Feemster v. Ringo, 5 Mon. 336. » Shaw V. The State, 3 Sneed (Tenn.), 86. « Stephen v. The State, 11 Geo. 211. « Weaver v. MoElhenon, 13 Mo. 89. 6 The State v. Hambleton, 22 Mo. 452 ; The State v. Clifton, 24 Mo. 376. ' Fuleuwider v. Fulenwider, 58 Mo. 439. 8 Towns, on Slander, § 335. 9 Stark, on Ev., 8th and 9th Am. eds., 738, note s; 1 Ph. on Bv., ch. 10, § 1. 10 Vin. Ahr. 492, title "Court," c, 8. " Page V. Faucet, 1 Cro. 227 ; Hoyle v. Cornwallis, 1 Stra. 387 ; Hanson v. Shaok- elton, 4 Dowl. 48. 12 Sasscer v. Farmers' Bank, 4 Md. 409. 13 1 Ph. on Ev., ch. 10, ^ 1. 241 16 § 194 OF PLEADINGS. [PAET II. government, direct relations with all nations recognized as such, and the result, as connected with this subject, is thus given by Mr. Greenleaf :^ " All civilized nations, being alike members of the great family of sovereignties, may well be supposed to recog- nize each other's existence, and general public and external rela- tions. The usual and appropriate symbols of nationality and sovereignty are the national flag and seal. Every sovereign, therefore, recognizes, and, of course, the public functionaries of every nation take notice of, the existence and titles of the other sovereign powers in the civilized world, their respective flags, and their seals of State. Public acts, decrees, and judgments, ex- emplified under this seal, are received as true and genuine — it being the highest evidence of their character. If, however, upon a civil war in any country, one part of the nation shall separate itself from the other, and establish for itself an independent government, the newly formed nation cannot, without proof, be recognized as such by the judicial tribunals of other nations, until it has been acknowledged by the sovereign power under which those tribunals are constituted — the first act of recognition belonging to the executive function. But though the seal of the new power, prior to such acknowledgment, is not permitted to prove itself, yet it may be proved as a fact by other competent testimony. And the existence of such unacknowledged govern- ment or state may in like manner be proved ; the rule being that if a body of persons assemble together to protect themselves and support their own independence, make laws, and have courts of justice, this is evidence of their being a state." No averment of facts should, therefore, be made setting out the existence, general, public, and external relations and symbols of nations recognized as such, though, as to unacknowledged states, they must be pleaded and proved as other facts. ^ § 194. Liegislative Bodies and their Journals. — The English courts take judicial notice of the legal privileges of the Hoiise of Commons without regard to the adverse opinion of the 1 1 Greenl. on Ev., § 4. ' Yrisarri ii. Clement, 3 Bing. 438. 242 CU. Xlir.] WHAT SHOULD NOT BE STATED. § 195 House,* and of the privileges of members of the House;* also, of the commeucemeut, prerogatives, and sessions of Parliament,' the order of proceedings, and its committees,* and the jjlace of holding its sessions.^ Most of these matters — though not all — are regulated by law. But the journals of Parliament are not records, and cannot weaken or control a statute which is a record, and to be tried by itself.^ In Illinois and in Wisconsin it is held that legislative journals, although public records, are not within the judicial knowledge of the court. ^ But the hold- ing in Indiana is otherwise ; ^ also in Michigan.^ § 195. OflScers of State. — Tribunals will take oiBcial notice of the accession of the chief executive of the nation, or of the state under whose authority they act, and of their powers and duties.*" This notice extends to all public state officers — as, auditor, treasurer, etc ; also to sheriffs," and implies, where a seal is not requried, a recognition of their signatures, although not that of their deputies. Courts will judicially recognize the public officers of the state under whose laws and organization they act — as, the chief magistrate, the heads of departments, judges of courts of general jurisdiction, attorneys for the state, sheriffs — and we see no reason why the clerks of the same courts should 1 Denman, C. J., in Stockdale v. Hansard, 9 Ad. & El. 107. 2 Cassidy v. Steuart, 2 Man. & Gr. 437. ' Rex V. Wilde, 1 Lev. 296, and cited in note 31 to Boyce v. Whitaker, 1 Dougl. 93- * Lake v. King, 1 Saund. 138. 5 Birt V. Kothwell, 1 Ld. Raym. 210, 343. * King V. Arundel, Hobart, 109 ; and the chancellor says (page 111) : " The journal is of good use for the observation of the generality and materiality of the proceed- ings and deliberations as to the three readings of any bill, the intercourse between the Houses, and the like; but when the act is passed, the journal is expired." Whether, if it became material to inspect the journals, the court would do it without the proper allegation and proof, or whether it would judicially notice facts appearing in the records without evidence in regard to them, is not distinctly stated. If, however, "when the act is passed, the journal is expired," it would seem to be below the judicial notice of the court. ' Grob V. Cushman, 45 111. 119; Illinois Central R. Co. v. Wren, 43 El. 77; Ship- man V. The State, 42 Wis. 377. 8 Evans v. Browne, 30 Ind. 514. » The People v. Mahaney, 13 Mich. 481. See, ante, I 181, and note. 10 1 Greenl. on Ev., I 6 ; Hizer v. The State, 12 Ind. 330 ; The State v. Williams, 5 Wis 303 ■ Lindsey v. Attorney-general, 33 Miss. 508. " Ineram v. The State, 27 Ala. 17 ; Major v. The State, 2 Sneed (Tenn.), 11. 243 § 196 OF PLEADINGS. [PAET II. not also be included.^ Sheriffs and the clerks of such courts are deemed state officers. The court will also take notice of the day of a general election, and officers to be voted for,^ but not the elec- tion day in another state. ^ The distinction between the general officers of the state and local officers should be noted. The ex- istence and signatures of the former only will be noticed through- out the state. But judicial notice will be taken of county offi- cers and their signatures, within the territorial jurisdiction of the court,* including registers of counties ; ^ and the rule is applied to a levee tax-collector.* It is also applied to a notary public — who, in Illinois, is authorized to administer and certify to an oath without a seal.'' In Wetherbee v. Dunn, the court placed the recognition of county officers upon the ground " that courts will take notice of what ought to be generally known within the limits of their jurisdiction." ^ § 196. Courts — Their Officers and Rules. — Judges will take notice of all other courts of general jurisdiction and the extent' of their jurisdiction, inasmuch as it is necessarily regulated by law, and the existence, jurisdiction, and practice of inferior courts is also judicially known, outside of the area of their juris- diction, so far as they are established by law. The courts of ' Tolten, J., in Major v. The State, 2 Sneed (Tenn.), 11. In this the clerk's cer- tificate to a transcript lacked the seal, but his signature was recognized. 2 The State v. Minnick, 15 Iowa, 123. ' Taylor v. Eennie, 35 Barb. 272. * Wetherbee v. Dann, 32 Cal. 106. I" Scott V. Jackson, 12 La. An. 640. ^ Templeton v. Morgan, 16 La. An. 438. ' Dyer v. Flint, 21 HI. 80. 8 The language of the court in "Wetherbee v. Dunn is as follows : " "We think that the courts ought at least to go so far as to take notice as to who fill the various county oflaces within their jurisdiction, and the genuineness of their signatures." It may he doubted whether the last phrase is not too broad. The court will take notice of the ofiicial signatures of its own ofiicers, also of the signatures of oflScers within its juris- diction to certificates required by law — as, in authenticating transcripts in their, cus- tody, depositions taken by them, etc. But is it not going too far to say that no issue of fact can be made and tried involving the genuineness of their official signature? In a suit upon a tax-deed — as, in "Wetherbee «. Dunn — or upon a county bond required to be signed by certain county officers, may not an issue be made upon the genuine- ness of the deed or the bond? or can the court take it from the jury, or say that the instrument proves itself ? » Stark, on Ev., 8th Am. ed., 735, note q. 2U CH. XIII.] WHAT SHOXJIiD NOT BE STATED. § 195 general jurisdiction, in the several counties, will not only take no- tice of the subordinate or inferior courts within the county — as, of those of justices of the peace ' — as estabhshed by law, but also the signatures of the judges and justices. The former is known as matter of law, and the latter as matter of local notoriety.^ As to the rules of court, they are not judicially known by other courts, although it was held in Maryland' that an appellate court was bound, judicially, to know the rules of the inferior court. The opposite view was afterwards taken by the same court.* The rules of court — though, for the due order of proceeding, obligatory upon suitors — are not public law, neither are they so notorious as to be known to all ; and, upon principle, those of other courts should be brought to the knowledge of a trial court by pleading and evidence ; and those of the trial court to that of an appellate court, by incorporating them in a bill of exceptions — and such is believed to be the general practice.^ Appellate courts will take notice of the commencement and conclusion of the terms of its subordinate courts,^ but the existence, jurisdiction, and practice of inferior courts can be judicially known to the courts, generally, only as established by law, and the length of their terms is a mixed question of law and notoriety. It should be remarked that the duty of the court to judicially notice the title and offi- cial acts of certain officers only extends to them as officers de facto — that the courts cannot, in this manner, pass upon the genuineness of their title ; but in a direct proceeding at the suit of the state, or whoever has a right to contest it, the right of the one in possession of the office will be passed upon like other similar issues.^ 1 Graham v. Anderson, 42 111. 514. 2 See last section. ' Contee v. Pratt, 9 Md. 73. * Cherry v. Baker, 17 Md. 75 ; Scott v. Scott, 17 Md. 78. By section 2709 of the Iowa Code of 1873 it is provided that every court in the state shall take judicial notice of the rules of any other court thereof, if published as directed by law. 5 See O'Conner v. Koch, 56 Mo. 259. 6 Morgan v. The State, 12 Ind. 448 ; McGinnis v. The State, 24 Ind. 500 ; Bodgers v. The State, 50 Ala. 102. ' See The State v. "Williams, 5 Wis. 308 ; and Clark v. The Commonwealth, 29 Pa. St. 129. It follows, as held in these cases — and that was the point decided — that the validity of the acts of the de-facto officer cannot be questioned collaterally. 245 § 198 OF PLEADINGS. [PAET II. § 197. Official Seals. — The national seals of all countries are universally recognized, and the seals of the several secretaries of state and territories are supposed to be known to the courts of all the states, and of the United States and territories. Judi- cial notice will be taken of a national seal when the existence of the nation has been acknowledged' by the Federal government;^ as to others, the seals must be proved by competent testi- mony. The seals of the superior courts of England, and of all courts established by act of Parliament, prove themselves ; ^ and the same rule holds in the several states ; but the seal of a foreign court not acting under tlie law of nations does not prove itself.^ The courts of all countries, however, will judicially notice the seals of courts of admiralty as courts of the law of nations.* Under the provision of the Federal Constitution directing that full faith shall be given, in each state, to the judicial proceedings of other states, and authorizing Congress to prescribe the manner in which they shall be proved. Congress has provided that such proceedings shall be proved by attestation of the clerk, with the seal annexed, fol- lowed by a certificate of the judge, chief justice, or presiding magistrate, that the attestation is in due form ; and that a tran- script thus attested shall be admitted as evidence in any court within the United States. Thus, while the seal of the courts of other states is not judicially noticed, the signature of the judge is, and his certificate proves the seal. A notary public is an officer recognized throughout the commercial world, and his seal will be judicially noticed by all courts. But such seal will give no validity to acts not done under the lex mercatoria;^ hence, in such case, the authority should be pleaded. If, however, the law of the state in which the seal is affixed authorizes the act certified to, the seal will, within the state, be treated with the same respect as in ceitificates of protest. § 198. Other Matters of Law and Ifotoriety. — Courts will 1 United States v. Palmer, 3 "Wheat. 610; The Estrella, 4 Wheat. 298. 2 1 Stark, on Ev., 8th Am. ed., 739. • /6irf. 418, 419«. « Ibid. 418, 419 re. 6 C. & H. notes 324, 479, 594 to 2 Ph. on Bv., 4th Am. ed., 260. 246 CH. XIII.] WHAT SHOULD NOT BE STATED. § 199 officially recognize the public surveys and legal subdivisions of the public land;^ also the coinage of the country;^ that "a United States gold coin of the value often dollars " is an eagle ;' and will take judicial notice of its legal weights and measures.* These are all made in pursuance of, and regulated by, law ; they bear a legal impress, and their character becomes generally known. And, for the same reason, courts will Icnow of the existence of school districts organized according to law." 6 § 199. 4. Matters peculiarly within the Court's Knowl- edge. — There are many things forming, as it were, part of the machinery of its organization, of which a court is necessarily advised — as, its records, officers, etc. Thus, courts will take notice of their own officers and deputies, but not of those of other courts — as, of a deputy clerk of another county^ — and will also notice their signatures. '^ This official recognition extends to the roll of their attorneys,^ but they will notice the signatures of attorneys only in their professional acts.' They will judi- cially know the official character of such officers if no desig- nation of it is added to their signatures ; ^^ will know when their terms expire ; " and will treat sheriffs as officers de facto when their acts are called in question. ^^ But the acceptance of the office of a deputy sheriff will not be officially noticed by the Supreme Court,^^ nor the official character of a United States deputy marshal by a state court." The rule should be, I Atwater v. Schenck, 9 "Wis. 160 ; Hill v. Bacon, 43 HI. 477 ; Mossman v. Forrest, 27 Ind. 233 ; Wright v. Phillips, 2 Greene, 191. ' United States v. Burns, 5 McLean, 23. » Daily v. The State, 10 Ind. 536. « 1 Stark, on Ev. 446. 5 Portsmouth Livery Co. v. Watson, 10 Mass. 91 ; Swails v. The State, 4 Ind. 516. " Norvell v. McHenry, 1 Mich. 227. -i ' The State v. Postlewait, 14 Iowa, 446. 8 1 Chitty's PI. 220. ° Masterson v. Le Claire, 4 Minn. 163. 11 Thompson v. Haskell, 21 HI. 215. " Ragland v. Wynn, 37 Ala. 32. 12 Alexander v. Burnham, 18 Wis. 199. " State Bank v. Curran, 10 Ark. 142. " Ward V. Henry, 19 Wis. 76. 247 § 200 OP PLEADINGS. [PAKT II. that the existence and official acts of deputies, without some authentication, is recognized only in the court of which the prin- cipal is an officer. RULE IV. One should not anticipate a Defense. §200. Tlie Rule not a new one — Its Application. — In equity pleadings, the petitioner was allowed to anticipate and avoid a defense, and this was called the charging part of the bill.^ At law, one was never expected to state matters which should come more properly from the other side ; it was sufficient for each party to make out his own case.^ The fundamental pro- vision of the codes — that the complaint or petition shall state the facts that constitute the cause of action — involves this rule. It is sufficient for the plaintiff, to make out his own case, to show his own cause of action ; and he should not anticipate his adversary for the additional reason that the latter may never make the de- fense sought to be guarded against. Thus, a plaintiff need not say whether anything has been paid on his demand — it is matter of defense ;' or furnish defendant with particulars of a set-off;* nor need he say that the defendant was of full age when he executed the instrument sued on, or of sound mind, or not under duress ; or, if a woman, that she was unmarried. In California a case^ was tried in which the complaint, being for a balance due upon an account, charged that, by fraud, the plaintiff was induced to accept certain promissory notes in satisfaction of the account. The answer said nothing in regard to the allegations of fraud, but alleged that the account was settled by notes which had been paid. The answer was held to be sufficient, as the allegation in regard to the notes was but anticipating a defense, which the plaintiff had no right to do, and thus compel the defendant to answer in regard to it. He had a right to make his defense in his own way, and it was held that the matter thus alleged was 1 Story's Eq. PI., ? 31. 2 1 Chitty's PI. 222. 3 Van DeMark v. Van DeMark, 13 How. Pr. 372. * Giles V. Betz, 15 Abb. Pr. 285. 5 Canfleld v. Tobias, 21 Cal. 349. 248 CH. XIII. J WHAT SHOULD NOT BE STATED, § 201 superfluous and immaterial, and that it might be disregarded. The provision of the statute that matter not answered shall be taken as confessed applies, by its terms, only to material allega- tions. In an action for negligence — as, against a carrier of pas- sengers — the pleader need not allege that the plaintifl" was exer- cising due care, and was not himself guilty of such negligence as contributed to the injury.^ This is matter of defense. § 201 . Apparent Exceptions. — In a few New York cases the rule as thus held in California seems to be disregarded, although, in principle, they are not inconsistent with it. In an action for the price of a bill of goods, for which a promissory note had been given, the complaint was sustained, which showed that the plaintifl^ had been fraudulently induced to give up the note for a worthless bank-check.^ Another action was for the settle- ment of a partnership estate, and to set aside a release fraudu- lently obtained from the plaintiff. It was held that the plaintiff might anticipate and avoid the defense of the release as by the charging part of a bill in chancery.^ In both of these cases the defense, if regarded as such, was anticipated ; yet the pleader need not, in the first instance, have noticed it, but, if set up by answer, might have met it by a reply — where a reply to a special defense is permitted, or, where not, by evidence of the fraud. But the complaints were, in effect, petitions in equity to set aside written instruments obtained by fraud, and for such further relief as the plaintiffs would be entitled to. Under the old system, the fraud might have been set up as an answer at law to the plea, or be made the foundation of an original bill in equity. Under the new, the same remedies are available, though not under the old names. These complaints embodied original causes of action of an equitable nature. They do not contradict the rule under con- sideration, but are analogous to an action to vacate a conveyance of land obtained by fraud, and for its possession, with damages.* In counting on a contract, the pleading must show that it has 1 Thompson v. North Missouri E. Co. 51 Mo. 190. « Bracket v. Wilkinson, 13 How. Pr. 102. ' "Wade V. Kusher, 4 Bosw. 537. * See Phillips v. Gorham, 17 N. T. 270 ; and, ante, H 166-171. 249 § 202 OF PLEADINGS. [PAET II. not been performed-^ must allege that defendant has not paid the indebtedness sued for^ — upon the plain principle that no wrong can, ordinarily, be predicated in respect to a contract until its breach. And yet the allegation of non-payment is generally held not to be a traversable fact ; but payment must be set up by answer.^ § 202. As to Exceptions and Provisos in Contracts and Statutes. — In counting upon a contract or a penal statute with a proviso or qualifying phrase, the pleader is sometimes at a loss to decide whether the proviso, etc., should be left to the defend- ant, or be stated by the plaintiff and met by proper averments. The general principle is that, in counting upon a deed or other instrument consisting of distinct parts, the plaintiff need only to state so much of it as makes, prima facie, a right of action ; and if any other part furnishes the means of defeating the action, it is matter of defense. But if the proviso be in the nature of an exception, and be contained in the body of the covenant, it must be noted, and the liability shown in consistency with it.^ And so, in an action upon a penal statute, if the proviso be in a separate section or a substantive clause, it is matter of defense, and should be left to the other party. But if it be matter of ex- ception contained in the enacting or prohibiting clause, it is part of the thing prohibited, and the pleading must show that this matter of exception does not cover the act complained of;* and this is a rule of criminal, as well as of civil, pleadings. The rule is generally stated as quoted by Mr. Stephen (Heard's ed. 443) from Lord Raymond, volume 1, page 120, so as to refer rather to the form than substance of the exception. "The dif- erence is," says the opinion quoted, " when the exception is em- bodied in the body of the clause, he who pleads the clause ought to plead the exception ; but when there is a clause for the beneiit of the pleader, and afterwards follows a proviso which is against him, he shall plead the clause, and leave it to his adversary to show the proviso." ' Roberts ». Treadwell, 50 Cal. 520. ■' See, post, ?? 357, 358. s 4 Gould's PI., ch. 4, H 19, 20; 1 Chitty's PI. 223, 309. « 4 Gould's PL, cli. 4, ^ 22. 250 CH. XIII. J WHAT SHOULD NOT BE STATED. § 204 § 203. The Exception may be In a subsequent Clause. — It should not be inferred from this that if an exception or quali- fication really essential to a description of the liability or oifense were put in the form of a proviso, it should not be pleaded, but left to the opposite party. We will suppose a statute creating a penal liability, or making it a misdemeanor to sell intoxicating drinks without license ; would not the ofiense be the same if the statute, in describing it, used the words " not being licensed so to do," or ' ' without license ; " or whether a subsequent clause contained the words ' ' provided that the foregoing prohibition shall not apply to those who have taken out license," etc.? It is considered a revenue act, and the gist of the offense is, not the sale, but the sale without license ; and a neglect to pay for the license is a necessary part of it.^ But in most cases the rule, as stated, would govern ; and that which is included in a proviso is matter of defense. It is only varied when it is really, though perhaps not in form, a matter of exception, and the liability cannot be described without noting it. The words "unless, etc.," are sometimes used, which are the same as " except, etc. ;" and the matter excepted need not be in the clause, but it should be pleaded, though contained in some other section, or even in some other statute, if referred to as an exception — as, by the words " except as hereinafter mentioned." ^ § 204. The Rule as applied to the Statute of Frauds. — The statute of frauds was held not to have changed the manner of pleading acts which were valid at common law without a writing, or without otherwise conforming to it. How far this old rule of pleading continues in force under the Code will be hereafter considered. It is alluded to in this connection only because of certain rulings that the statute is matter of defense merely, and that its protection is waived unless specially pleaded. If this be so., the permission to state the cause of action when ' The defense of license is one to be established by tlie defendant — not only because it is an affirmative one, but also because it is peculiarly within his knowledge. See 1 Greenl. on Ev., 13th ed., g 79, and note. And — as in payment, which it is necessary to negative in order to state a breach — the defendant, in a civil case, should be required to plead, as well as prove, it. ' 1 Chitty's PI. 224; Vavasour v. Ormrod, 6 Barn. & Cress. 430. 251 § 205 OP PLEADINGS. [PAET II. within the statute, without so stating it as to make it good under the statute, is properly considered at this place ; for, by making the full statement, the pleader would be anticipating a defense which might never be made. I find the following language in a Missouri case : " If a contract is set up and relied upon which is good at common Liay, but voidable onlj^ for non-conformity with the statute [of frauds], this is a ground of defenses, to be pleaded by him who would avoid the contract; and if not so pleaded, the matter is waived." ^ I find, also, the following lan- guage in a New York case : "A party who would avail himself of the statute of frauds, it is laid down, must especially insist on it in pleading, or be deemed to have waived the benefit of its provisions." ' In resuming the subject of pleading the statute of frauds, when considering the matter of special defenses, reasons will be given ^ for rejecting this view; but, if it be the correct one, the best reason for omitting to so state a cause of action as to make it conform to the requirements of the statute is that it would be anticipating a defense. § 205. The Rule as applied to the Statute of Limitations. — The necessity — when the petition shows that an action upon the contract, or other matter upon which it is based, is barred by the statute of limitations — of stating facts (as, a new promise) which would remove the bar of the statute is an apparent ex- ception to the rule against anticipating and avoiding a defense. Justice Field, then of California, says:* "Under the old sys- tem of pleading in actions at laM^ when a party was desirous of availing himself of the statute of limitations as a bar to the demand in the suit, he was required to plead the same. He could not demur to the declaration, even when it appeared upon its face that the limitation prescribed by the statute had expired. If he did not plead the statute, he was considered as having waived its protection. In equitable suits the rule was difi'erent. In suits of this character the defendant could make the objection, by de- I Gardner v. Armstrong, 31 Mo. 536 (approved in Sherwood u. Saxton, 63 Mo. 78). ' Lewin v. Stewart, 10 How. Pr. 513. ' Post, II 353, 351 ' In Smith v. Eichmond, 19 Cal. 481. 252 CH. XIII. j ^VHAT SHOULD NOT BE STATED. § 206 murrer, that the relief was barred by the statute, when it ap- peared upon the face of the bill that the prescribed limitation had expired. If the case came within any of the exceptions of the statute, it was necessary to aver the fact.^ Under our sj'^stem there is no difference in the rule, whether the action be one strictly at law or one in which equitable relief is sought. In both cases the complaint must disclose a subsisting cause of ac- tion. ' Civil actions ' — and these terms embrace both legal and equitable actions — says the statute, 'can only be com- menced within certain prescribed periods after the cause of action shall have accrued.' If it appear, therefore, upon the face of the complaint that the prescribed time has elapsed since the plaintiff possessed the right of action, and no facts are alleged taking the particular demand from the operation of the statute, the complaint will be considered defective, and subject to demurrer." ^ RULE V. Evidence should not be pleaded. § 206. The Rule reasonable — Facts distinguished. — This was a rule of common-law pleading,^ but it was necessarily dis- regarded in equity, inasmuch as one object of a bill — and some- times the only object — was discovery, to obtain evidence from the defendant,* and it could not be elicited unless the facts were stated somewhat in detail, or indicated in the interrogatories. This reason no longer exists, and only the issuable facts should now ' Humbert v. Kector, 7 Paige, 197 ; Sublette v. Tinney, 9 Cal. 425. ' In an action to recover a debt taken out of the statute of limitations by a new promise, the cause of action is based on the original debt. Boyd v. Hurlbiit, 41 Mo. 268 ; Sands v. St. John, 36 Barb. 628. In Boyd v. Hurlbut no question of pleading is raised. In Sands v. St. John the opinion of the court is directly contrary to that oiven in the text from Smith v. Richmond, and holds that the rule of common-law pleadings prevails, and not that of the equity courts. In Minnesota the rule in Smith V. Richmond is adopted. Kennedy v. Williams, 11 Minn. 314. See Blood- good V. Bruen, 4 Seld. 362. See, post, sections 355, 356, as to whether the defense of the statute of limitations is available on demurrer. 3 1 Chitty's PI. 225. * As an example of the practice sometimes enforced, of pleading evidence, see Story's Equity Pleadings, section 265 a, and note 5, where a discussion is had in re- sard to the necessity of setting out in the bill any alleged confession or admission of respondent which the plaintitf' intends to prove. 253 § 206 OF PLEADINGS. [PAET II. be averred. The issuable facts are those upon which a material issue may be taken ; they may be called ultimate facts — they are called, in the Missouri Code, substantive facts — and we may properly call the facts by whicli they are established probative, or evidential, facts. It would be folly to take issue upon the latter, for the material ultimate fact may be true, though sustained by other evidence than that anticipated by the pleader. The rule under consideration is not given in the Code, but is implied by the requirement that the complaint or petition shall contain a statement of the facts which constitute the cause of action. The evidence does not constitute the cause of action — only the facts which are made to appear by the evidence, and these facts may sometimes be shown by one class of evidence or another. The pleader may sometimes be enabled to decide whether a fact is evidential merely, or an ultimate one to be pleaded, by inquiring whether a denial of such fact would make a material issue — whether, if the denial be sustained, the defendant may not still be liable. In common-law actions a sensible pleader will seldom have difficulty, but, in the joursuit of equitable remedies, the plaintiif's right may depend upon such a number and complica- tion of facts as, sometimes, to make it difficult to distinguish between those that are evidential and those that constitute the cause of action; still, the rule is the same.^ ^ It is because of this difficulty that Selden, .!., in "Wooden v. "Waffle, 6 How. Pr. 145, and Rochester City Bank v. Suydam, 5 How. Pr. 218, seems to suppose that a different rule still prevails in legal and equitable actions. To warrant this conclusion, he assumes that the code system is not complete in itself, but the old rules not incon- sistent with it are still in force. The true %iew is that many of the old rules are necessarily implied from the very comprehensive ones laid down in the Code, as is the one given in the text. The statute is express in abolishing the distinction between actions at law and suits in equity, and, when not express, the abolition is clearly implied from the provision that there shall be but one form of action. Because, in some equitable actions, in order to show a liability, it becomes necessary to state a greater number of facts than in a money demand, it does not follow that they are mere evidential facts, as we use the term. There is, sometimes, a difficulty in distin- guishing between the ultimate fact to be pleaded and a conclusion of law, and they are liable to be confounded ; but there is a difference. As to the statement in ordi- nary actions, Marvin, J., in The People v. Eyder, 12 N. Y. 433, after quoting Chitty and other authorities in regard to pleading evidence, says: "I have supposed it safe, and a compliance with the Code, to state the facts constituting the cause of action 254 CH. XIII. J WHAT SHOULD NOT BE STATED. § 207 § 207. Illustrations. — Thus, a controversy arises in regard to the delivery of a deed of conveyance, the instrument not having passed directly from the hand of the grantor to that of the grantee ; the fact of delivery may be a conclusion from other facts bearing upon it, and the delivery itself may be but a pro- bative fact, going to the fact of conveyance, or to the existence of the deed, which is nothing without delivery. The allegation maj' be that on, etc., by a certain indenture, or certain deed-poll, etc., lie conveyed, etc. Or, b}^ a certain indenture, etc. , he covenanted, etc. The defendant may deny the deed — not intending to deny the signing and sealing of the paper, only its delivery. All the facts tending to establish the delivery, and the delivery itself, are but probative facts, going to the legal existence of the instrument.^ Or, one sues for the conversion of a horse ; the ultimate facts to be established are title, conversion, and value ; each of these facts may be a conclusion from many others, yet they alone are to be pleaded, the latter being but evidence. So, in trespass de bonis, the ultimate facts are the plaintiff's title (either possessory or as owner), the dispossession, conversion, and damage. Statements pertaining to the manner of the seizure and the circumstances attending it, or as to what was done with the property, would be pleading evidence, and they will be stricken out " as irrelevant and redundant;"^ or, if not stricken out, the defendant is not bound to answer them.^ In suing upon a promissory note exe- cuted by an agent or partner, the pleading should charge that it was executed by defendant,* for such is the legal effect of the act — the manner of the execution is evidence ; and so in a sale and deliv- ery to the defendants, where they purchased by an agent.* Also, substantially in the same manner as they were stated in the old system — in a special count. By that system the legal issuable facts were to be stated, and the evidence by which those facts were to be established was to be brought forward on the trial. This position will not embrace what was known as the common counts." 1 See Sawyer v. Warner, 15 Barb. 282. 2 Green v. Palmer, 15 Oal. 411. They are rather redundant than irrelevant. As to striking out, see Buzzard v. Knapp, 12 How. Pr. 504 ; Eddy v. Beach, 7 Abb. Pr. 17 ; Badde v. Ruckgaber, 3 Ducb, 684. 3 Racouillat v. Bene, 32 Cal. 450. * See V. Cox, 16 Mo. 166 ; Weide v. Porter, 22 Minn. 429 ; Sanders v. Anderson, 21 Mo. 402. Contra : St. John v. Griffith, 1 Abb. Pr. 39. * Sherman v. New York Central & Hudson Eiver E. Co., 22 Barb. 239. 255 § 208 OF PLEADINGS. [PAET II. in an action for enticing a wife, the plaintiff alleges that the de- fendant procured, persuaded, and enticed, without stating what he said to that end ; ' and in an action by a railroad passenger, in pleading the contract to carry, etc., he should state, in general terms, that the defendant contracted, etc., and the consideration, and not that the company or its ticket agent sold the plaintiff a passenger ticket, etc. — for that is but e^ddence of the contract. In relying upon irregularities in a tax sale, the pleader should not say that he has searched the records in the proper offices, and can find no evidence of certain proceedings required, but that such proceedings were not had.^ In most of the states, and in all that have adopted the new procedure, the fictitious action of ejectment has been abolished, although the statutory action is sometimes as loose as the old. Had it not been thus colored by the fictitious action, it would always have been made necessary for the plaintiff to show his title — that is, the facts upon which he bases his right to possession. In such case (and this state- ment is required in a few of the states^) he should state, generally, the nature of his title — as, that he is the owner in fee-simple, or of a term, so stating it as to show that it has not expired, or that he has an estate for life, as the case may be. It may be that he claims by conveyance from one who took by inheritance, whose ancestor purchased at a sale, upon execution, against one who might have been a remote grantee from the common source of title. Each link in the chain may be very important as evidence, but its statement would be out of place in a pleading.* § 208. Difficulties In applying the Rnle. — The rule now under consideration, especially in connection with the one asrainst pleading legal conclusions, will sometimes embarrass the pleader. It is not always easy to distinguish the ultimate fact to be pleaded, from a conclusion of law — which is not to be pleaded. In the cases which have been supposed, the ultimate fact is, in a sense, 1 1 Chitty's PI. 391. 2 Rogers v. City of Milwaukee, 13 "Wis. 610. ' See, post, as to pleading title, §§ 222-226. ' For instances where the pleading of evidence is condemned, see. Page v. Boyd, 11 How. Pr. 415 ; Allen v. Patterson, 3 Seld. 476. 256 CH. XIII.] WHAT SHOULD NOT BE STATED. § 209 a conclusion of law from the evidence ; the legal effect of that evidence is matter of law. Mr. Van Zantford, in his work upon the New York Code (pp. 244, 245), thus quotes Mr. Selden, of that state : ^ " Facts are to be stated ; but what are facts ? Are they pure matter of fact unmixed with any element of law ? No declai-ation or complaint was ever so drawn. If a plaintiff states his title to, or ownership of, property in the usual form, is this the statement of pure facts? Clearly, not. It comes much nearer beino- a statement of a mere matter of law — that is, of a lesral right depending upon facts not stated. Again : the commftn averment that the defendant executed, or entered into, a contract is liable to the same criticism ; or even that he signed, sealed, and delivered it. The delivery may have been actual, or it may have been constructive merely. What amounts to a delivery is a question of law. It is obvious, therefore, that some latitude of interpretation is to be given to the term 'facts,' when used in a mle of pleading. It must of necessity embrace a class of mixed facts, in which more or less of legal inference is admitted. A contrary construction would tend to intolerable prolixity. To determine precisely how great an infusion of law will be allowed to enter into the composition of a pleadable fact, precedent and analogy are our only guides." § 209. Still, Matters of Law are not pleaded. — The state- ment of a conclusion arising from facts under the law is not prohibited in any system ; on the other hand, such conclusions are found in every pleading. But they are conclusions of fact — they are but logical inferences from probative, or evidential, facts ; and the same logical formula may be used in deducing one ultimate fact from several probative facts, as in inferring a general liability from all the facts. The evidence being given, the ultimate fact necessarily follows, and because of a rule or dictate of law. But no allusion is made to the rule of law. In reference to some ultimate traversable fact, we may say that the rule of law, or of reason, which compels its inference is the major i3roposition , and it is not pleaded, because the court is supposed to know it. The I In Dows V. Hotchkiss, 10 N. T. Leg. Ubs. 281. 257 § 210 OF PLEADINGS. [PART II. probative facts may form the minor proposition, and they should not be pleaded, because they are evidence ; but the conclusion should be pleaded, because it is the fact logically, and therefore legally, deduced from the major and minor propositions. ^ Thus, a legal inference, if that inference be a fact merely, as inferred from other facts, may be stated — that is, the fact inferred, and not those from which it is inferred, or the law which creates the in- ference. I shall endeavor, under the next rule, to show that the statement as above of a conclusion of fact is not the same as a conclusion of law, which is condemned in pleading, although they are often very much alike, and are Uable to be confounded. MULE VI. Conclusions of Law should not be pleaded. § 210. To be distinguished from Conclusions of Fact. — The rule should be given in this connection, that we may see the difference between stating a conclusion of fact and a conclusion of law. The facts which are but the logical conclusion from other facts must, as we have seen, be stated ; and the facts from which they are inferred are but evidence, not to be pleaded. But a conclusion of law is not a statement of fact — is not a pleading. It may not be possible to formulate a definition or statement that shall fully describe what is always meant by a conclusion of law, so as to distinguish it from the ultimate fact ; and yet, in inspect- ing a pleading, it is seldom dijEcult to decide whether it embodies evidence, whether it states pleadable facts, or whether mere legal conclusions. Thus, in averring ownership, if of real prop- 1 For the benefit or amusement of any young reader unaccustomed to logical formulas I will illustrate, and suppose it to he necessary to allege and prove title in a horse. The plaintiff's ownership is the ultimate fact to be established. First, or the legal, proposition : If A agrees to sell his horse to B, delivers possession, and accepts the agreed price, the horse becomes the property of B. Second, or probative, facts : The plaintiff was the owner of a carriage, and one William Jones was the owner of the horse in controversy. One day they met upon the highway, and Jones bantered the plaintiff to trade the carriage for the horse, and offered to exchange even; but the plaintiff refused, asking $10 boot. The next day, however, he sent his carriage to Jones by his son, sending word that he would exchange according to the offer. Jones kept the carriage and sent the horse to the plaintiff, who kept him until taken from his possession by defendant. Third, or ultimate, fact : The horse is the property of the plaintiff. This is none the less a fact because it is a conclusion from the other facts and from the proposition of law. 258 CH. XIII. J WHAT SHOULD NOT BE STATED. § 211 erty, the pleader says that the plaintiff is the owner in fee-simple, or of a term, as the case may be ; if of personalty, that it is his property. Whether the averments be true or not may depend upon many evidential, or probative, facts ; as we have before seen, they are legal inferences from other facts, yet they are treated as facts to be pleaded. So, to say that the defendant executed a deed for a breach of whose covenants the plaintiff seeks to charge him, may be merely giving a legal inference from many facts affecting the execution, its delivery, etc. ; yet it is the fact to be jpleaded, the others being but evidential. On the other hand, to say that the defendant has broken a specified agreement, whereby the plaintiff has suffered damages, is not a statement of a fact, but is only a legal inference from his acts, which are not stated. And so, to say that the plaintiff was compelled to pay a sum of money, which he seeks to recover back without stating the facts that created the duress, is but stating a conclusion of law.' It may be said that our habit of treating one class of in- ferences as facts, to be pleaded, and the' other as conclusions of law, to be avoided, arises from an artificial view — the eyes look- ing through, a medium colored by the long line of decisions from the earliest era of common-law pleading, rather than from the perception of a substantial difi'erence ; but there is a distinction, which, in a given case, a good pleader will seldom fail to perceive. § 211. The Distinction in pleading Fraud and Negligence. — I give these instances in order to illustrate a difference which one may not be able to state in the abstract. To charge fraud, it is not enough to say that the party fraudulently procured, or fraudulently did this or that, or committed a fraud. They are but conclusions of law ; the facts constituting the fraud must be stated. This has never been doubted in the plaintiff's first pleading, although it has been sometimes supposed that the general allegation in the answer was sufficient.^ On the other hand, a general allegation of negligence is allowed ; the negli- gence is the ultimate fact to be pleaded, and is not a legal con- 1 Commercial Bank of Rochester v. City of Eochester, 41 Barb. 341 ; affirmed, 41 N. T. 619. 3 See note, and cases cited, post, g 339. 259 § 211 or PLEADINGS. [PAET II. elusion — as, that" the defendant, by," etc., " did run and manage one of their cars in such a grossly careless and negligent manner that," etc. ; ^ or, the defendants, "whilst running their locomotive with," etc., "negligently struck," etc. ;^ or, that the death was caused ' ' by the negligence and default of the defendants and their agents," etc' The law draws the conclusion in both cases ; yet we can see that the negligence possesses more the element of fact than does the fraud. In fraud, the facts are misrepre- sentation, deceit, etc.; the term "fraud" is the legal epithet applied to such facts. Fraud is not an act — not a thing in it- self — any more than larceny or murder. We sa,y one is guilty of fraud because he has done so and so, as we say one is guilty of larceny or of murder because he has done this or that thing. The fraud, or the larceny, or the murder, is the term which the law applies to certain acts — to certain facts ; it is the legal con- clusion from these facts — neither of them is a fact in itself. To show one's guilt, we say, in one case, that he falsely repre- sented a certain horse to be sound ; that he was unsound at the time, and affected with the glanders, which the defendant well knew ; or, he falsely represented him to be not over five years old, but that he was over ten years of age, which fact the defend- ant knew at the time, etc. ; and in the other, that he did feloni- ously, etc., steal, take, and carry away ; or, feloniously, willfully, and of malice aforethought, with a certain knife, did make an assault, etc. The law makes the former, and many other similar acts, fraud — as it makes the latter larceny and murder. But, on the other hand, negligence is not a term given by the law to cer- tain conduct, but forms part of the act from which an injury has arisen. As, one drives his carriage against that of another — the fact alone creates no liability ; if done intentionally, there is a trespass, and an extra liability; if done negligently, there is a liability for actual damages ; and if done accidentally, there is no liability at all. Negligence is the absence of care in doing an act ; it is not the result of such absence, but the absence itself. We do not infer it as a legal conclusion from certain facts, but it is 1 Grinde v. The Milwaukee & St. Paul E. Co., 42 Iowa, 377. = Garner v. The Hannibal & St. Joseph K. Co., 34 Mo. 235. « Oldfield V. The New York & Harlem B. Co., 14 N. Y. 810. 260 CH. XIII. J WHAT SHOULD NOT BE STATED. § 211 a ftict itself inferable from certain evidence. "Whetlier this suffices for the difference or not, there is a practical consideration that should control the matter. Fraud will never be presumed ;^ the facts from which it is inferred must be shown. One may give more than property is worth ; it will not be assumed that he has been fraudulently deceived by the seller unless the fact is made to appear ; and it must appear by acts — as, false representations — that constitute fraud. On the other hand, specific acts constitut- ing negligence can seldom be directly shown, but it is presumed from injuries which, ordinarily, result only from negligence. The driver upsets a stage-coach and breaks a passenger's arm. Care- ful driving will hardly have such a result ; the passenger knows there has been negligence, but he will not be likely to know in what it consisted. The driver might have been drunk or asleep ; he might have so harnessed the horses that they would not obey the rein, or might have made them unmanageable by improper treatment. The plaintiff can only prove that the coach was turned over ; the presumption is, prima facie, that it was the result of some negligence. And when there is an obligation to take care of goods intrusted to one's charge ; if they are injured, the presumption is that it was the result of negligence.^ So, when a railroad locomotive sets fire to fields or buildings along the track, the sufferer cannot tell in what the negligence consists — whether there is a defect in the furnace or carelessness ia its management ; some negligence is presumed,^ and it must, of necessity, be alleged generally.* 1 Crisp V. Pratt, Oro. Car. 550. " Fraus est odiosa et non prcesumanda. " 1 Ph. on Ev. 633. 8 Fitch V. Pacific K. Co., 45 Mo. 322. * In Grinde v. The Milwaukee & St. Paul R. Co., 42 Iowa, 376, Eothrock, J., say3 : "It does not follow, because negligence is a mixed question of law and fact, that the general allegation is pleading a legal conclusion only. The facts necessary to be pleaded are not merely physical facts. It is not allowable to plead mere abstract conclusions of law, having no element of fact; they form no part of the allegations constituting a cause of action ; but if they contain the elements also of a fact, con- struing the language in its ordinary meaning, then force and effect must be given to them as allegations of fact — as, where necessaries are furnished to an infant, or where a deed or mortgage is alleged as having been made, or the ownership of prop- erty is asserted; the general allegation is sufficient, being the ultimate fact, to be established bv evidence. To allege more would be to plead the evidence, which is not allowable." 2(31 § 212 or PLEADINGS. [PAKT II. § 212. Some Instances of legal Conclusions. — The city of Buffalo had been compelled to pay damages to a third person, arising from his falling into a sewer excavation — the approaches to which had not been secured — and sues the sewer contractor to recover back the motaey. The complaint stated the contract: that the defendant made the excavation in a certain street, and alleged that it became his duty, while the pit or hole should remain open, to use care, and to erect, maintain, and keep lights, guards, and barriers, etc., to prevent and protect persons lawfully passing, etc., from falling into said pit ; but that he neglected his duty, whereby, etc. Now, if this duty on the part of the defend- ant arose from the terms of the contract — that is, if he had agreed thus to guard the approaches to the sewer thus being built — that part of the contract should have been set out ; the contract, the excavation, the neglect, and the injury would have been the facts, and the legal conclusion would have been unnec- essary and redundant. But if there was no such contract, the obligation to guard the approaches was assumed to have been created by law out of the agreement to build the sewer ; and on this hypothesis it was a mere legal proposition, not to be pleaded. But, in either case, if the obligation had been created by the terms of the contract as set out, or if it had devolved uijon the defendant by operation of law, the pleading would not have been radically bad ; the allegation would have been simply redundant. But the contract showed no such obligation, and the court held that the law did not impose it upon him ; that it was the duty of the city to guard the approaches to such works ; and that the statement that it became his duty to do it was not only a state- ment of a legal conclusion, but of one that did not spring from the contract simply to build the sewer, and, therefore, the pleading was bad on demurrer.' In another case the plaintiff claimed in- debtedness on the part of defendant's intestate, arising from the sale of town lots owned by him and the plaintiff, and others named. In pleading his single title to the proceeds, the plaintiff says that " he became, and was, the owner of all the interests, rights, and claims of all the other proprietors, in and upon the > City of Buffalo v. Holloway, 3 Seld. 493. 262 CH. Xm.] WHAT SHOULD NOT BE STATED. § 212 said lands and mortgages and contracts for the payment of moneys for the said lands, and the owner of all accounts of the other said proprietors for moneys received by Holley on account of said lands and real estate ; and that the moneys due from said Holley, at the time of his death, to all the said proprietors, be- came, and were, and still are, the property of the plaintiflF," etc. The whole of this statement of title is a conclusion of law ; no fact is. alleged. The plaintiff " should have stated some issu- able fact by which it would appear that he was the owner — such, for example, as that the interests had been assigned to him." A motion to make the pleading more definite was allowed.^ A complaint stating that the defendants were indebted to the plaint- iff 's assignor in so many dollars, with interest, for moneys, notes, and effects before that time had and received, to the use of said assignor, according to a bill of particulars of but a single item, specifying an indebtedness for notes received from a certain insurance company, states no cause of action. It gives no facts which should charge the defendant ; no contract, no conversion, no collection, or other fact that should make him personally lia- ble on the notes. The statement of indebtedness is but a con- clusion of law.^ An allegation that the defendant had got pos- session of a certain note, and had collected a certain sum upon it which he had no right to collect, is but a conclusion of law, and is not sufficient to deprive the maker of the benefit of the pay- ment.^ Title was alleged in H. & E.., by virtue of a sale under a power given in a mortgage. The pleading " fails to show the giving of notice of the sale, as required by the power, and also fails to show a sale in pursuance of such notice, at the place des- ignated in the mortgage. It simply avers that Harper, by vir- tue of the power of sale in the trust deed, or mortgage, did, on, etc., sell the land to H. & E." This was held to be but a con- clusion of law, and not to describe such a sale as would give title to H. & K.* In an action to recover personal property, the plaintiff's right depends upon the fact of ownership, general or 1 Adams v. Holley, 12 How. Pr. 326. » Lienan v. Lincoln, 2 Duer, 670. > Bansdall v. Shropshire 4 Meto. (Ky.) 327. * Clark V. Lineberger, 44 Ind. 223. 263 § 213 OF PLEADINGS. [PART II. special, and sucli fact should be alleged, and not the legal con- clusion that he is entitled to the possession.^ Answers of new matter sometimes cover conclusions, instead of facts. Thus, in an action upon a promissory note, by a guardian of an insane person, an answer that the guardiansliip was fraudulently pro- cured is but a conclusion of law, and is bad on demurrer. An allegation of fraud in general terms is a conclusion of law.^ An averment by defendant that he is an innocent purchaser is a con- clusion of law.^ The eflfect of denying a legal conclusion will be hereafter considered.* § 213. A Pleading witli this Vice sometimes held sufficient. — It is found that pleadings containing conclusions of law are sometimes sustained, and sometimes not. This may arise from a want of harmony in the judicial view ; but the apparent disagree- ment generally has a reasonable basis. The action of the court should depend upon whether the pleading contains anything but such conclusion, and more frequently upon the manner in which the question is raised. If the paper shows nothing but a legal conclusion, it does not matter how the question comes up — it has no validity for any issuable purpose ; but very seldom will so bare a complaint or petition be found. Elements of fact are so mixed up with the legal inference that the court is enabled to see the character of the contract or transaction upon which the suit is based, and the nature of the liability. In such case the plead- ing cannot be treated as a nullity. It is subject to correction, upon motion, but it is not so radically defective as to be demur- rable ; and especially will it be sustained upon motion in arrest, or on error. In common-law pleading it was usual, in the action of debt, to state conclusions of law ; but these conclusions were always accompanied by a statement, of the facts from which they were drawn. A mere conclusion of law was never tolerated. And pleaders under the Code, after stating the principal facts — ' Pattison v. Adams, 7 Hill, 126. This case did not arise under the Code, but the rule is an old one, and is well stated in this case by Beardsley, J. 2 Ockendon v. Barnes, 43 Iowa, 615. As to pleading fraud, see ^ 339, note. » Wing V. Haj'den, 10 Bush, 276. * Post, i 384.' 264 CH. XIII.] WHAT SHOULD NOT BE STATED. § 214 as, a contract which shows a present money indebtedness — in- stead of saying that no part of the said sum has been paid, fre- quently still say that there is due the plaintiff, upon the contract, a certain sum, naming it. In this case, facts are stated showing the indebtedness, and the court would not be warranted in reject- ing the pleading for the informality of the concluding statement. It must be upon this ground that the common counts are lield, in New York, to be a sufficient statement of a cause of action ; and even where the time when the claim matured does not appear, it is held that the word " due " means that the debt has become payable.^ So, when a receiver states that he has been duly ap- pointed receiver by a certain court, and sues as such receiver, his statement of title is defective ; but the fact sufficiently appears to render the pleading good on demurrer, although subject to cor- rection on motion.^ RULE VII. No Fact should he stated which is not pertinent, and whose Statement is not necessary. § 214. Irrelevancy, Kedundancy, etc. — This rule condemns irrelevant matter and redundant matter. Those allegations known in equity pleadings as criminal, impertinent, and scandalous mat- ter continue to be prohibited. In strictness, matter in a pleading- can be treated as irrelevant only where it does not relate to the cause of action or the counter-claim, or which cannot affect the determination of the demand or controversy. Irrelevant matter is necessarily redundant, and, though redundant matter — as, statements of evidential facts — may pertain to the cause of action, yet they are sometimes called irrelevant as well as re- dundant.' Impertinence, in equity pleading, is the introduction of 1 Allen V. Patterson, 3 Seld. 476 ; Adams v. HoUey, 12 How. Pr. 326. 2 Schrook v. Cleveland, 29 Ohio St. 499. ' In Green v. Palnaer, 15 Cal. 411, the action was for the seizure and conversion of a bag of gold coin. "After the usual, and the only necessary, averments," say the court, "as to the plaintiffs ownership and possession of the property, its value, and the forcible seizure by the defendants, and its conversion to their use, to his damage, the complaint proceeds to detail the manner in which the seizure was made, with the incidents occurring on the street, and everything done by the defendants, the plaintiffs, and the crowd, relating to and constituting the evidence of the wrongful conversion. All this narration should have been stricken out as irrelevant and redundant matter." 265 § 215 OF PLEADINGS. [PAKT II. any matters into a bill, answer, or other pleading or proceeding in a suit which are not properly before the court for decision at any particular stage of the suit ;^ and scandal, in pleading, is the unnecessary introduction upon the record of slanderous, libelous, or indecent matter. If the matter pleaded be pertinent, it can- not be deemed scandalous, and all scandalous matter is imperti- nent.' There is no substantial change in the old rules ; all matter, in a pleading, not necessary to the proper statement of the facts constituting the cause of action or defense is redundant, and may be stricken out. The application of the present rule differs from the impertinence of equity pleading — not in principle, but because the statement of evidential facts was allowed in such pleadings, and hence the definition of impertinence above given ; while now, matters stated in a pleading which are properly before the court, if not necessary to be stated, are treated as redundant. Other redundant matter — as, repetition, etc. — will be spoken of here- after. § 215. Surplusage. — The term " surplusage," in such com- mon use, is generally considered as synonymous with redundant matter, yet in strictness these terms are used in different rela- tions, and not interchangeably. Unnecessary matter is called redundant when there is an effort to reform the pleadings by striking it out ; it is called surplusage when it should be disre- garded by the court, as if the pleading did not contain it, although this distinction is not always taken. The statute uses the term "redundant matter" when authorizing it to be stricken out; while the common-law pleaders speak of such matter as surplus- age, and generally in treating of what may be disregarded upon the trial.' Mr. Stephen treats of surplusage as including un- necessary matter of whatever description, and as embracing (1) that which is wholly foreign and irrelevant, and (2) that which, though not wholly foreign, does not require to be stated. Under the second head he includes, as unnecessary to allege, " for ex- ample, matter of mere evidence, matter of law, or other things 1 story's Eq. PI., § 266. » Ibid., II 266-270; Mitford's Eq. PI. 48. 9 See Stephen's PI. [* 422-* 425] ; 1 Ohitty's PI. 229; Gould's PI., ch. 3, g 170. 266 QH. XIII.] WHAT SHOULD NOT BE STATED. § 215 which the court officially notices ; matter coming more properly from the other side; matter necessarily implied, etc.,"Mvhich substantially embraces the matters considered in this chapter as unnecessary to be stated . In this connection a practical ques- tion arises, of great importance to the pleader. If the redundant matter is so disconnected with the rest of the pleading as to leave, if stricken out or disregarded as surplusage, a good state- ment, if that which is left requires no aid from tliat which is stricken out or so disregarded, then the improper pleading can, at most, subject him only to the delay and costs of an adverse suc- cessful motion. "Yet it often happens that when material mat- ter is alleged with unnecessary detail of circumstances, the es- sential and non-essential parts of the statement are in their nat- ure so connected as to be incapable of separation, and the oppo- site party is, therefore, entitled to include, under his traverse, the whole matter alleged. The consequence, evidently, is that the party who has pleaded Avith such unnecessary particularity has to sustain an increased burden of proof, and incurs great danger of failure at the trial." ^ This consequence is not the-re- sult of any technical or artificial rule of common-law pleading, and must be treated as still subsisting. Matter cannot be called redundant if its rejection would destroy the pleading ; nor, un- der such circumstances, can it be disregarded by the court, as though not inserted.' a 1 Stephen's PI. [* 423]. 2 Ibid. [* 425]. See, also, 1 Chitty's PI. 228. ^ In Dickensheets v. Kaufman, 28 Ind. 251, the complaint alleged that the defend- ants, doing business as partners under the style of J. N. Silvers & Co., are indebted to the plaintiffs, etc., for goods sold and delivered, etc. ; and the account annexed was against J. W. Silvers & Co. One of the defendants denied the partnership ; and it was held that the denial did not tender an immaterial issue, and that the plaintiff was bound to prove it. The court, per Prazer, J., says : " There are cases where unnec- essary particularity of averment will require a corresponding exactness in proof to avoid a variance. This is so whenever the unnecessary matter cannot be stricken out without destroying the right of action, or when it identifies the contract or fact averred. In the case before us, the contract sued on is pleaded as one made by the defendants as partners. If the plaintiffs might support the averment by proof of a joint liability not as partners, it is clear that this form of pleading might be used to mislead. It seems to be settled that, in such cases, the allegation and proof must correspond." 267 § 220 OF PLEADINGS. [PART II. CHAPTER XIY. The Statement, continued. 2. What Facts must he stated. Section 220. The Class of Pacts referred to. RULE I. The Complaint must show Title. Section 221. Definition of Title — To what applied. 222. 1. Title to real Property; and, first, in real Actions. 223. Continued — Statutory Action in Missouri, Ohio, Kansas, and Nebraska. 224. Continued — Statutory Action in New Tork. 225. Continued — Statutory Action in Indiana, Wisconsin, Iowa, Oregon, and Arkansas. 226. Continued — Kentucky, California, North Carolina, South Carolina, Nevada, and Minnesota. 227. Title to the Realty in other Actions. 228. Title in Actions founded on Leases. 229. When Title need not be shown. 230. 2. Title to personal Property — General Allegation sufficient. 231. 3. Title to Choses in Action — Non-negotiable Instruments. 232. Continued — Negotiable Paper — Striking out Indorsements. 233. Continued— Mode of alleging Title. RULE II. In Actions on Contract, the Complaint m,ust show Privity. Section 234. Twofold Application of the Term. 235. Different kinds of Privity. 236. Privity between Landlord and Tenant. 237. Same — Created by Statute. 238. No Privity between Owner and adverse Holder. 239. Privity in commercial Paper. 240. No Privity in Torts. 241. Privity arising from Duty. 242. The two Branches of the Question considered. 243. Duty arising from domestic Obligations. 244. Privity by Election and Estoppel. 245. The Doctrine as applied to adverse Claimants to Land. 268 CH. XIV. J WHAT FACTS MUST BE STATED. § 246 RULE III. In Action by o}- against a. Corporation, its legal Existence to be shown. Section 246. The Kule imperative except wtieii. 247. The Foundation of the Rule. 248. How shown in Common-law Practice. 249. This Practice not to be followed. 250. The New York Kule. 251. The Eule in certain other States. 252. Etfect of acknowledging the Incorporation. 253. Language of the Courts upon this Question. 254. Welland Canal Co. v. Hathaway — Its Points. 255. Continued — The Points examined. 256. As to Defendant's Interest in having Plaintiff sue by his true Name. 257. Whether called Estoppel or Admission, the Pleading the same. 258. Otherwise, the Averment necessary. 259. Conclusions. 260. Eule as to Corporations Defendant. RULE IV. When Persons sue or are sued in a representative Capacity/, the Author- ity or Relation must be shown. Section 261. Persons embraced in the Eule. 262. 1. Trustees of an express Trust, and Persons to whom a Promise is made for the Benefit of another. 263. 2. Assignees in Bankruptcy or Insolvency, and Eeceivers appointed by the Court. 264. 3. In Actions by Executors and Administrators. 265. 4. Partnership Demands and Liabilities. 266. 5. In ordinary joint Eights and Obligations. 267. 6. Husbands, Cornmittees, etc. RULE V. In Actions upon Contract, Consideration must le shown. Section 268. The Kule and Exceptions at Common Law. 269. Exceptions by Statute. 270. Insufficient Consideration. 271. Consideration frivolous and impossible. 272. Illegality of Consideration. 278. Consideration immoral, or against public Policy. 274. Mr. Smith's Classification. 275. A moral Consideration. 276. Instances of sufficient Consideration. 277. "Why are executed Considerations insufficient? 278. In Contracts executed by the Statute of Uses. 279. Contracts in Eestraint of Trade. RULE VI. In seeking Relief other than by a Judgment for Money or for specific Property, the Pleading should show that such Judgment cannot be obtained, or that it will not afford adequate Relief. Section 280. An old Kul? in new Words. 281. Appjication of the Rule. 269 § 221 OF PLEADINGS. [PART II. RULE VII. When they are material, Time and Place must be stated, and truly. Skction 282. As to Time. 283. When is Time material? 284. The Rule as applied to Place. 285. Statutory Provisions in regard to Actions affecting the Realty. 286. Same in regard to other Actions. 287. Contracts — "When enforced according to foreign Law. § 220. The Class of Facts referred to. — I shall not attempt to indicate the general facts, to be stated in order to constitute a cause of action ; to do so would involve the whole law of lia- bility. My object is to call attention to a few things which must be made to appear, in addition to the specific injury, or the agreement and the breach complained of, before a liability is shown. Though they surround, as it were, and aid, the main charge — are sometimes but matter of inducement — yet they are essential to the plaintiff's cause of action. The rules to be con- sidered in this chapter differ in this respect from those which show what need not be stated, and from those pertaining to the manner of statement. The non-observance of the latter is an error, to be corrected ; but, without correction, the error is not fatal — a cause of action may still be shown. But the omission of a material averment leaves the plaintiff without a basis for his proceeding, and, perhaps, after an apparent success, with a worthless judgment. RULE I. The Complaint or Petition must show Title. § 221. Definition of Title — To what applied. — Mr. Stephen says: "When, in pleading, any right or authority is set up in respect of property, real or personal, some title in that prop- erty must be alleged in the party, or in some other person from whom he derives his authority. So, if a person be charged with any liability in respect of property, real or personal, his title to that property must be alleged." ^ Title is spoken of in the law of real property as the means by which one acquires his estate — as, by descent or by purchase — and, in pleading, the term is some- » 1 Stephen's PI. [* 304]. 270 CH. XIV. J WHAT FACTS MUST BE STATED. § 222 times used in the more comprehensive sense of right of action ; '■ but it is here considered in the sense of ownership or interest in the property or contract in respect to which the suit is brought. The rule only applies to causes where the plaintiff's right de- pends upon such interest ; and I will consider, first, title to real property ; second, title to personal property ; and, third, title to choses in action. § 222. 1. Title to real Property; and, first, in real Actions. — In the old writ of right the land was described as the inherit- ance of the plaintiff.. In the common-law action of ejectment the pleading does not show the title of the plaintiff's lessor, who is the real plaintiff; and this arises from the form of the action. It is not necessary to allege the title of a lessor, as between him and his lessee, for the latter is estopped from denying it ; but the fictitious title of the lessee, the nominal plaintiff, is alleged to come through a demise, and this title is expressly acknowledged by the tenant in possession when admitted to defend in place of the casual ejector. Thus, the real title of the real plaintiff does not appear, but that of the nominal plaintiff, although fictitious, is abundantly shown. The form of the action is trespass, and if damages for the ouster were alone sought, prior possession would have sufficed ; but the plaintiff seeks to be restored to his term as well ; hence it must be described. In the statutory actions for the recovery of real property, provided in some of the states, if the pleadings were not controlled by the statute itself, but were left to be governed by general principles, it would be necessary for the plaintiff to show his title — that is, the facts that give him the right of possession. If he has such a right, it is because of some facts — as, that he is the owner in fee, or of a term, or of some other interest carrying the pos- session; or that he had prior possession, and was unlawfully dispossessed. In some of the states they are so left, and in some the statute recognizes the duty of thus showing title, or expressly requires it; but in others the spirit of the old fictitious action still controls the proceeding — a uniform for- mula is permitted in all cases, without reference to the peculiar 1 4 Gould's PI., i 8. 271 § 224 OF PLEADINGS. [PART II. facts of each ; and tlie obligation to show title, and the true one, is ignored. §223. Continued — Statutory Action in Missouri, Ohio, Kansas, and Nebraska. — In Missouri it is sufficient to allege that the plaintiff "was entitled to the possession of the prem- ises," * etc. ; in Ohio ^ and Nebraska," that the plaintiff " has a le- gal estate " in the premises ; and in Kansas,* that he " has a legal or equitable estate " in them. Neither of these formulas contains an allegation of fact in regard to title, and, at least in Missouri, the statement is a mere conclusion of law. The statement al- lowed in Ohio, Nebraska, and Kansas has the appearance of showing title, but shows it so indefinitely as to violate another rule, to wit, that facts should be stated with certainty. § 224. Continued — Statutory Action in New Tork. — The Code of New York^ affirms the provisions of the Kevised Statutes in regard to real actions, and by those statutes^ it is made suffi- 1 Wag. Stat. 559, § 9. In the St. Louis Circuit the defect in the pleading is sought to be remedied by the following rule of court : " In all actions of ejectment, each party shall, on or before the day of trial, make out and deliver to the judge, at ' special term,' an abstract of his title; which abstract shall state the derivation of the title, parties to each deed, dates of execution, acknowledgment, and recording, and the tract of land conveyed. If either party fail to file such abstract, the cause shall, on motion of the opposite party, be continued ; but if no motion is made for a continu- ance by the opposite party, then the cause shall be tried or continued, at the discre- tion of the court." The object of this rule seems to be to furnish information to the court. This is well ; but to fully supply the parties with information in regard to the title of their opponent, the abstract should be filed with the pleading, or furnished to the opposite party. The fictitious action was abolished in Missouri in 1825, and the present form of the petition is substantially the one then provided for, although the act concerning ejectment was greatly improved in the revision of 1835. This departure from principle, in authorizing a conclusion of law to be stated. Instead of an issuable fact, was necessarily followed by a similar departure in the traverse, which is but a denial of such conclusion ; and, as the petition admits evidence of any fact tending to establish the right of possession, the denial admits any evidence going to disprove such right. Thus, the pleadings give notice of nothing but the property in contro- versy. It was, doubtless, considered an improvement upon the common-law action, but it fails to conform to the principles of pleading as applied to other actions, and its retention since the adoption of the Code greatly disturbs the harmony of the system. ^' Code Civ. Proe. Ohio, i 558. ' Code Civ. Proc. Neb., ^ 626. ' Code Civ. Proc. Kan., § 595. " Code Proc. N. Y., § 455. Still in force. See Wait's Code Civ. Proo. N. T. 542. « 2 Stat, at Liuge, 312, J 7. 272 CH. XIV.] WHAT FACTS MUST BE STATED. § 225 cient for the plaintiff to aver in his declaration (complaint) that on some day therein to be specified, and which must be after his title accrued, he was possessed of the premises in question, describing them with convenient certainty, etc. If the action be brought for the recovery of dower (as it may be in New York), the com- plaint must state that the plaintiff was possessed of an undivided third part as her reasonable dower as widow of her husband, naming him. In every other case the plaintiff must state whether he claims in fee, or whether he claims for his own life or the life of another, or for a term of years, specifjdng such lives or the duration of such term.^ Thus, in addition to the fact of prior possession, the plaintiff must show title. So far as the Revised Statutes required an allegation of prior possession, they are held to be modified by the Code, when there was, in fact, no such possession — as, when a purchaser upon execution sale seeks to turn out the execution debtor ; the Code abolishes fictions and mere forms, and nothing should be alleged not necessary to be proved. The Eevised Statutes, while requiring the allegation of prior possession, dispensed with the necessity of proving it, if the plaintiff had never been in possession ; ^ but now, in such case, he should not allege it, and it is sufficient for him to state his title — as, that he is the owner in fee-simple, and that defendant is in possession and unlawfully withholds, etc.^ It will not, however, suffice to say that the preniises were conveyed to the plaintiff by warranty deed, and that he became seized by a lawful title, etc. ; * whether it was lawful or not is a question of law, and the true title should be given. The provisions of the New York Eevised Statutes in regard to pleading in this action have been substantially adopted in several states where the code system of pleading does not prevail — as, Michigan,^ Illinois,^ etc. § 225. Continued — Statutory Action In Indiana, Wisconsin, Iowa, Oregon, and Arkansas. — Most of the states adopting the • 2 Stat, at Large, 313, g 10. ' Ibid., I 25. ' Ensign v. Sherman, 14 How. Pr. 439. ' Lawrence «. Wright, 2 Duer, 673. 6 2 Comp. Laws 1871, ch. 195, H 7-10. « Eev. Stat. 1874, p. 444, H 11, 13. 273 18 § 225 OF PLEADINGS. [PART II. new system provide, in the Code itself, that the plaintiff shall set out his title . In Indiana he is required to state that he is entitled to the possession of the premises, and the interest he claims therein.' Also, the court, on motion, may order abstracts of title to be furnished.^ Under this a statutory form is given, to wit: "A B states that he is the owner in fee-simple (or for life, etc.), and entitled to the possession," etc.^ The Wisconsin statute requires the plaintiff to state particularly the nature and extent of his estate or interest, whether in fee, in dower, for life, or a term of years, specifying such life or lives, or duration of such term, and that he is entitled to the possession, etc.* In Iowa the petition may state generally that the plaintiff is entitled to the possession of the premises, particularly describing them, also the quantity of his estate and the extent of his interest therein ; but the plaintiff must attach to his petition, and the defendant to his answer, if he claims title, an abstract of the title relied on, showing from and through whom such title was obtained, together with a statement showing the page and book where the same appears of record ; must also famish a copy of any unrecorded conveyance upon which he relies, and the facts relied upon to sustain a title by parol. No written evidence shall be introduced at the trial unless it has been sufficiently referred to in the abstract.^ In Oregon the plaintiff must set forth in his complaint the nature of his estate in the property, whether it be in fee, for life, or for a term of years, and for whose life, and the duration of such term, and that he is entitled to the possession thereof, etc." The statutory obligation in Arkansas, in regard to showing title, is peculiar. By an act approved March 5, 1875, the parties are required to set forth in the complaint and in the answer both their title and the evidence of it, as well as exceptions to documentary evidence. The fall act, as showing the care taken to guard against surprise, is noteworthy, and is given below : ' 1 Code Civ. Proc. Ind., § 595. •" Ibid!, I 79. » 2 Davis' Stat. 361. ' Rev. Stat., ch. 141, § 4. 5 Code Iowa 1873, ?? 3250, 3251. 6 Code Civ. Proc, \ 315. ' "An act to regulate the pleadings and practice in actions for tlie recovery of lands : 274 CH. XIV. J WHAT FACTS MUST BE STATED. § 227 § 226. Continued — The States of Kentucky, California, North Carolina, South Carolina, Nevada, and Minnesota — which have adopted the new system — make no special pro- vision for pleadings in actions for the possession of real prop- erty, but leave them to be governed by the general principles of pleading. In few of them, it is believed, would a petition or complaint be held good that failed to show as a fact the title of the claimant. In Kentucky, however, a form of pleading title was reported by the commissioners, is appended to the Code, and treated as sufficient,^ which only states that the plaintiff is the owner of the premises, and is entitled to the possession. In Cali- fornia^ it is held that a complaint pleading title in general terms — as, "that the said plaintiffs are the owners in fee as tenants in common, and have the lawful right, and are entitled to posses- sion " — is good on demurrer, Justice Field saying, "It is suf- ficient, therefore, in a complaint in ejectment, for the plaintiff to aver, in respect to his title, that he is seized of the premises, or of some estate therein, in fee, or for life, or for years, according to the fact." § 227. Title to the Realty In other Actions. — There are Sec. 1. Be it enacted by the Q-eneral Assembly of the state of Arkansas, that hereaf- ter in all actions for the recovery of lands, except in actions of forcible entry and un- lawful detainer, the plaintiff shall set forth in his complaint all deeds and other writ- ten evidences of title on which he relies for the maintenance of his suit, and shall file copies of the same, as far as they can be obtained, as exhibits, therewith, and shall state such facts as shall show a, prima-facie title in himself to the land in controversy, and the defendant, in his answer, shall plead in the same manner as above required from the plaintiff. Sec. 2. That the defendant, in his answer, shall set forth exceptions to any of said documentary evidence relied on by the plaintiff, to which he may wish to object, which exceptions shall specifically note the objections taken ; and the plaint- iff shall in like manner, within three days after the filing of the answer, unless longer time is given by the court, file like exceptions to any documentary evidence exhibited by the defendant, and all such exceptions shall be passed on by the court, and shall be sustained or overruled as the law may require ; and if any exception is sustained to such evidence, the same shall not be used on the trial unless the defect for which the exception is taken shall be cured by amendment. Sec. 3. That all objections to such evidence not specifically pointed out in the manner provided above shall be waived. Approved March 5, 1875." 1 Bullitt's Code, 186. The Code (| 125) only provides for identifying the land. 2 Payne v. Treadwell, 16 Cal. 220. As to an allegation •i adverse possession against a co-tenant, see Lick v. Diaz, 30 Cal. 65. 275 § 228 OF PLEADINGS. [PAET II. various other actions for enforcing rights or redressing wrongs, in respect to real property, involving or dispensing with the obliga- tion to plead title. In trespass it is not necessary, for the defend- ant is a wrong-doer, invading the plaintiff's possession ; and the plaintiff will recover, whatever may be his title, unless the defend- ant shall plead liberum tenementum, and thus raise the issue. But in an avowry where the plaintiff has replevied cattle distrained damage feasant, the defendant who would justify the seizure of another's property must plead every fact that would authorize it. He must show his title to the premises upon which they were found trespassing ; ^ or, if the distress be of cattle trespassing upon a common, he must show his title to the land in respect to which he claims a right in common.^ The common-law right to distrain damage feasant is denied in some of the states, and in New York, Wisconsin, Indiana, South Carolina, Florida, Oregon, and Minnesota the obligation to plead title is modified by pro- viding^ that, in an action to recover the possession of property distrained doing damage, an answer that the defendant, or person by whose command he acted, was lawfully possessed of the real property upon which the distress was made, and that the prop- erty distrained was at the time doing damage thereon, shall be good, without setting forth the title to such real property. In an action by an heir to enforce a forfeiture stipulated in a conveyance by the ancestor, for the non-performance of a condition subse- quent, the complaint must not only show the heirship, and the fact of the conveyance and its conditions, but also that the ancestor was the owner in fee at the time.* § 228. Title in Actions founded on Lieases. — Premising that the landlord, in an action against his lessee, need not allege title, inasmuch as the tenant is estopped from disputing it, the circum- 1 3 Chitty's PI. 1058, notes /and jr. 2 Ibid. 1059, note m. ' Code Proo. N. T., § 166. This section is not embraced in the Code of 1876, but is supposed not to be repealed. See Wait's Code Civ. Proc. N. Y. 497. Code Civ. Proc. Minn., I 102 ; Rev. Stat. Wis., ch. 125, I 28 ; Code Civ. Proc. Oreg., ^ 90 ; Code Civ. Proc. Ind., I 89 ; Code Proc. S. C, I 189 ; Code Civ. Proc. Pla., I 116. * Clark V. Holton, 57 Ind. 564. 276 CH. XIY.J WHAT FACTS MUST BE STATED. § 229 stances under which, in an action upon a lease, it becomes nec- essarj' are thus stated by Chitty :^ " In an action on a lease at the suit of the assignee of the reversion, or of the heir of the lessor, or by an executor of a termor, for rent which became due after the death of the testator, the declaration must state the title of the lessor to the demised premises, in order that it may appear that he had such an estate in the reversion as might be legally vested in the plaintiff in the character in which he sues, and legally entitle him to recover the damages claimed in respect of the breaches of the covenant." And this distinction is sound, for the tenant has only acknowledged the title of the lessor and his right to sue ; but in order to determine whether his assignee or representative succeeded to his right, it would become material to inquire into the nature of the original estate, as well as his relation to it.^ And if one sues as heir, he must show hi)w he is heir, as well as the nature of the estate ; other- wise, he fails to set out his title ;^ he does not show the facts that constitute it ; and simply to say that he is heir is but an aver- ment of a legal conclusion. And the assignee must show the assignment, and the executor or administrator the facts estab- lishing his representative character.* § 229. When Title need not be shown. — Some of the ex- ceptions to the rule requiring the plaintiff to set out his title to the property in respect to which his right of action has accrued have been alluded to. Thus, the statutes of some of the states dispense with the necessity in the action to recover real prop- erty, where we should suppose it would, upon principle, be im- perative. In an action upon a lease for rent between the land- 1 Chitty's PI. 363. 2 See precedents in 2 Chitty's PI. 560 ei seg. » 2 Saund. [* 45 6], note ; ibid. [7], note 4 ; 1 Chitty's PI. 368 ; Stephen's PI. [*810]. It is held in Kentucky that, the plaintiffs having alleged that they were heirs of decedent, having sued in that capacity, and the fact not having been denied, the allegation should be taken as true, and that it was unnecessary to prove the heir- ship. Morton v. Waring, 18 B. Mon. 82. No objection had been made to the form of the allegation before answering to the merits. * As to the necessity in equity pleadings of showing with certainty the plaintiff's right as well as his interest in the property, see Story's Equity Pleading, section 241, and instances given in section 245 et seq. 277 § 230 OF PLEADINGS. [PART II. lord and his lessee, or for other breach of its conditions, the suit is upon the contract, and the title is not involved. Indeed, so long as the tenant is in under liim, it cannot be put.in issue. It is sufficient, therefore, to set out the lease without showing the lessor's right to make it. Also in trespass quare dausum, pos- session being all that is necessary to authorize the action, it is sufficient to describe the premises in general terms as the prop- erty of the plaintiff, or to say that he was lawfully possessed — as, of a dwelling-house or field — provided a wrongful entry is charged. § 230. 2. Title to personal Property — General Allegation sufficient. — If the suit be in respect to personal property, the necessity of showing title, or otherwise, depends upon the same general principles — the different character, however, of its title greatly modifying the application of the rule. The heir, as such, has nothing to do with it. As distributee, or as being in- terested in the payment of debts, he may compel the executor or administrator to account for all the personalty of the ancestor ; but he derives no title by descent to specific property. Neither do the feudal terms ' ' tenure ' ' and ' ' estate ' ' apply to this inter- est ; and it is sufficient, in describing the owner's title, to say that he was the owner of, or was in possession of, or that he was in pos- session as owner or as bailee, etc. ; and, perhaps, as under the old system, a general allegation of property would be sustained, although the evidence should show only a special property.^ In common-law pleading the usual mode of alleging title in chattels was by following a description of the property with the words " of the said plaintiff," whether the injury was direct or conse- quential, except in trover, where there was an allegation that the plaintiff "was lawfully possessed, as of his own property, of, etc.," to be followed by the fictitious statement of the loss and finding.^ The difference in the phraseology arose from the fact that, in order to maintain trover, property in the chattel was necessary, either general or special,' while in other actions actual ' Heine ti. Anderson, 2 Duer, 318. « 2 Chitty's PI. 83S. » 1 Chitty's PI. 148. 278 CH. XIV.j WHAT FACTS MUST BE STATED. § 232 possession was sufficient, or constructive possession with a gen- eral or special property ;i the words " of the said plaintiff" covered any interest that would enable him to maintain the action.^ § 231. 3. Title to Choses In Action — Non-negotiable In- struments At common law only bills of exchange, payable to order, were so transferable as to vest the legal title in the holder. To these have been added, by statute, negotiable prom- issory notes.^ In all other contracts the legal title was in the person to whom the promise was made, and from whom the con- sideration passed. If it had been transferred to another, he was called the equitable owner, but could not sue at law in his own name. The Code, however, has adopted the equity rule, and requires the action to be instituted in the name of the real party in interest — that is, in the name of the equitable owner. Thus, all contracts are made transferable, and, in effect, so far nego- tiable as to enable the holder to sue in his own name. The peti- tion should show his title to the instrument ; that it has been sold and transferred to him, not by the commercial term ' ' in- dorsed," for that is a technical word applying to another class of paper, but by any appropriate language showing the transfer. § 232. Continued — Ifegotiable Paper — Striking out In- dorsements. — In actions upon negotiable bills and notes the Code has made no change, for the legal as well as the equitable title passes to the indorsee. As between the maker and paj'-ee of a promissory note, and the acceptor and payee of a bill of 1 1 Ohitty's PL 168. ' In an action by an assignee in bankruptcy to recover the assets, the allegation that he owns the property is a sufficient statement of title. Dambraann v. White, 48 Cal. 439. The terms "trespass," "case," trover," etc., do not apply to the form of the present action, although they are still used to indicate the nature of the injury ; nor does the idea always correspond to the forms of the old actions. A trespass Is still held to be an injury to the possession — immediate and with force; while we now understand by the word "trover" a conversion of property supposed to have come rightfully into the possession of him who wrongfully converts it to his own use. A conversion by a wrongful talcing is a trespass, although formerly the action of trover would lie. There is now no excuse for confounding the two terms ; and when a peti- tion shows a tortious taking, the term " trover " should not be applied to the action. 3 3 Kent's Com. 92. 279 § 232 OF PLEADINGS. [PART II. exchange, the title of the payee appears from the relation of the parties, and none other should be alleged. But if suit be brought by the indorsee, he should show that it was payable to the order of the payee, also its indorsement ; and, in general, in an action upon a note or bill by any one not an original party, his plead- ing must show the facts that give him title. ^ Paper is some- times made payable to, or is indorsed to, an agent of the true owner, when suit may be brought in the name of such agent, as is shown under the head of " Parties to Actions." When there are several indorsements, and suit is brought by the last, or a late, indorsee against the original parties, or one of the earlier indors- ers, the intermediate indorsements between the plaintiff and the persons sought to be charged, except such as may be necessary to show his title, may be stricken out, and the instrument treated as though indorsed directly to the plaintiff, instead of mediately. His allegation of indorsement to himself is true, and the defend- ant's liability follows the paper ; and he cannot be injured by the fact that the plaintiff neglects to lay his title through all the intermediate indorsements. And " when the title to a bill or note revests in a party by whom it has been indorsed, he may strike out his own and all subsequent indorsements, whether special or in blank, and either plead it or give it in evidence without a variance or departure from the allegations of a declara- tion on his original title." "Aliter when his original title is invalidated by a failure to give notice of non-acceptance, or other wise, and he is forced — as, in the principal case (Bartlett v. Ben- son) — to rely upon one growing out of the retransfer to him." ^ 1 Jaccard u. Anderson, 32 Mo. 188 ; Kousoli v. Duff, 35 Mo. 312. ' Hare & Wallace's note to Bartlett v. Benson, 14 Mee. & W. 741, and quoting Du- gan V. United States, 3 Wheat. 183 ; United States v. Barker, 1 Paine, 158 ; Picquet V. Curtis, 1 Sumn. 480; Lonsdale v. Brown, 3 Wash. 0. Ct. 404; N orris u. Badger, 6 Cow. 449; Ellsworth v. Brewer, 11 Pick. 316. See Gorgerat v. McCarty, 2 Dall. 144; Weakly v. Bell, 9 Watts, 278. This question is not without difficulty. The weight of authority sustains the doctrine of Hare & Wallace's note, as given jn the text; but there are cases to the contrary, as shown in note d, 1 Pars, on Notes & Bills, 357. The Kentucky Court of Appeals (Bell v. Morehead, 3 A. K. Marsh, 158), upon the collateral question that the possession of paper by a previous holder is pi-ima-facie evidence of his right to it, after a rehearing, thus gives its conclusion : "As to the case of bills of exchange, however, some authorities are strong that proof of actual pay- ment is necessary to entitle the intermediate indorsee to recover; while others admit the bare holding of the bill as good proof. The bare possession of the bill furnishes 280 CH. XIV.] WHAT FACTS MUST BE STATED. § 233 § 233. Continued — Mode of alleging Title. — As between the original parties holding the ordinary relation to the paper, it would be difficult to describe it without showing the plaintiff's title ; and while in all actions the petition should show affirma- tively that he is really the party in interest — that is, that he is the owner and holder, either in his own right or as trustee of an express trust — an allegation that the instrument was made to, or made and delivered to, the plaintiff, or indorsed or assigned to him, implies that he is the owner and holder, without stating a violent presumption that the person to whom it had been indorsed had not parted with it without payment ; and we have no doubt that the doctrine which admits the possession of the bill as good evidence will be of great convenience in the mercantile world, and that it will enable dealers in such paper to recover their demands fre- quently without the necessity of proving that they have actually paid their indorsees, who may be distant and almost inaccessible. Being at liberty to choose, therefore, among conflicting decisions, between proof of actual payment and possession as prima- facie evidence of that payment, we have again adopted the latter rule as most con- venient, and equally conducive to the ends of justice." The plaintiff below had declared upon a negotiable note made by the defendant, and indorsed by the payee to the plaintiff. The defendant, upon oyer of the note and assignments, had pleaded an indorsement by the plaintiff to a third person, as showing that the plaintiff had no title. The plaintiff was permitted by the court to strike out the indorsement, and he then demurred to the plea, and his demurrer was sustained. If a prior indorser shall again become the holder by a subsequent indorsement, can he charge any of the in- termediate indorsees between his and the last indorsement — i. e., between his first and second title ? Mr. Parsons (2 Pars, on Notes & Bills, 31) shows that if, by virtue of his indorsement, he has been made liable to the subsequent indorsees, to prevent circuity of action he will not be permitted to sue them upon their liability to him. But if, from any reason, the subsequent holders could not look to him upon his indorsement, they will be liable to him upon his subsequent title, and, in that case, he must count upon that title. Another question I have known to be raised in trial courts, but I do not find it to have been specifically passed upon in the reported cases : The prior indorser, who again becomes the holder, is generally supposed to have taken back the paper because of his relation to it — that is, because he was holden upon his indorse- ment. This must be the theory upon which one view of the question to be presently raised is based. He, for instance, is the payee, and ho continues to be the payee not- withstanding he may have drawn a bill for its amount upon the maker of a note, or the acceptor of a bill, provided the bill so drawn is not paid ; and an indorsement is nothing but a new bill. If the bill is paid, the original paper is extinguished ; if it is not paid, the paper is as valid as though no bill had been drawn ; the liability of the maker or acceptor is upon the original paper — that of the indorser or irtdorsers upon the bill or bills. But a bill by way of indorsement transfers the title of the paper as well, and when the drawer of such a bill is holden upon it — that is, is holden upon his liability as indorser, and meets that liability — the title to the original paper reverts to him, and he again becomes the payee or the indorsee, as the case may be. The title went out of him by his indorsement, and it comes back to him, not by a new 281 § 234 OF PLEADINGS. [PART II. the fact thus implied ;^ and the statement of these facts need not be direct, but any facts are sufficient that imply such ownership. Thus, a statement that the notes in suit, " for value receired, lawfully came to the possession of these plaintiffs," shows title ;^ also, that he is the bona-fide holder and owner;' that he is the lawful owner and holder;* or that it became his property by purchase,* without showing how he acquired his ownership.* The instrument need not have been in the actual possession of the plaintiff, and if, to the statement of the making of the indorse- ment and delivery to the plaintiff is added, " that it was by the Bank of Commerce, which then held the same, presented for payment," the plaintiff is held to be the holder, the statement importing that the bank held it for collection ;^ and title in the plaintiff is shown if the pleading avers that the paper was deliv- ered to another for him, and that it was held and owned by him.' RULE II. In Actions on Contract, the Complaint must sJiow Privity. § 284. Twofold Application of the Term. — The term " priv- ity" denotes relationship, and it is used to indicate the relation transfer, a new indorsement, tut because of his liability upon his own indorsement, and he becomes reinvested with the same title which he originally held. Hence he may disregard his own and all subsequent transfers. Upon this theory the doctrine of the text is intelligible. Suppose, then, the payee indorses without recourse, or by laches fails to be chai'ged, and subsequently purchases the paper, or takes it as collateral — can he sue upon his original title ? Was it not extinguished by the character of his trans- fer, and has he any title except the last ? The holder, it is true, may erase his own and subsequent indorsements, and the nature of the transfer will not at first appear, but it may be stated by answer or shown in evidence ; and if it so appears, will not the plaintiff stand without title, unless he counts upon his last, and as completely so as if he had never had title ? The last is his true title, and the rules of pleading — and emphatically so under the Code — require the truth to be pleaded. 1 Mitchell V. Hyde, 12 How. Pr. 460 ; Appleby v. Elkins, 2 Sand£ 673. 2 Lee V. Ainslie, 4 Abb. Pr. 463. s Holstein v. Eice, 15 How. Pr. 1. * Reeve v. Fraker, 32 Wis. 243. s Prindle v. Caruthers, 15 N. Y. 425. « In these cases the allegations in regard to title are good on demurrer, for title is alleged, though loosely; but it is believed that in all where the payee is not the plaintiff the pleader would be required, on motion, to show how the plaintiff acquired his right. ' Parmers' Bank v. Wadsworth, 24 N. Y. 547. " Camden Bank v. Eodgers, 4 How. Pr. 63. 282 CH. XIV.] WHAT FACTS MUST BE STATED. § 235 between the adverse parties to the action as regards the prop- erty or contract in respect to or upon which the action is brought, as determining whether the action will lie, and also the relation between one of the parties and others, as determin- ing questions of evidence. Thus, in the latter case, the admis- sion of one person will not be received against another unless there is a privity between them — as, of a donor against the donee, a lessor against the lessee, an ancestor against the heir, a testa- tor against the executor, partners and joint tenants against each other, etc. — and when they are identified in interest.^ In this application the term " privies " is used as distinguished from par- ties ; thus, we say the parties and privies to a deed are bound, etc. But the rule of pleading now under consideration can have reference only to the relation first spoken of, and the term is used to cover every connection that can exist between the parties to actions sounding in contract. Questions may arise under this rule that would be suggested by the one last consid- ered, concerning title, and also in considering the subject of parties to actions, especially the latter; yet the scojDe of each subject is distinct. The obscurity which seems to have sur- rounded the term ' ' privity ' ' has arisen from its double applica- tion as above given, and also from the fact that the term " title " is often used in the comprehensive sense of right of action ; and that right may depend, among other things, upon privity as re- spects the parties, or upon property in the subject of the action. t § 235. Different Kinds of Privity. — Jacob says that " there are five several kinds of privies, viz., privies of blood, such as the heir to the ancestor ; privies in representation, such as ex- ecutors or administrators to the deceased ; privies in estate be- tween donor and donee, lessor and lesSee, etc. ; privies in re- spect to contract ; and privies on account of estate and contract too-ether." Questions in relation to privity of blood and of representation, as above hidicated, more frequently arise in the law of evidence, and, so far as they affect pleadings, are considered under other rules. Privity in estate, in contract, and in both was usually applied to the relation of landlord and ten- 1 1 G-reenl. on Bv., ? 189. 283 § 236 or PLEADINGS. [part II. ant; but, as we proceed, the term "privity" will be used in a broader sense, and must be considered when contracts of what- ever nature are sought to be enforced. § 236. Privity between L,andlord and Tenant. — When the suit is between the original parties to a lease, or when it is for use and occupation, privity necessarily appears. But sometimes one would charge a liability arising from privity of estate which did not appeiir from the contract upon which the suit is based. Thus, the assignee of a term comes into relations with the lessor, and there arises a privity of estate ; the lessee, who, before the assignment, was privy both in estate and in contract, has parted with his interest in the estate, and thenceforth is privy only in contract. To impress the matter more firmly on the mind, I will quote from one of the fathers of the common law, in a case ^ where an action was brought for rent against the assignee of the lessee: "As to the matter now in question, there nre three manners of privities, sdl., privity in respect of estate only, privity in respect of contract only, and privity in respect of estate and contract together. Privity of estate only — as, if the lessor grants over his reversion (or if the reversion esclieat) between the grantee (or the lord of escheat) and the lessee — is privity in estate only ; so between the lessor and assignee of the lessee, for no contract was made between them. Privity of contract only is personal privity, and extends only to the person of the lessor and to the person of the lessee — as, in the case at bar, when the lessee assigned over his interest, notwithstanding his assignment, the privity of contract remained between them. * * * The third privity is of estate and contract together — as, between the lessor and the lessee himself." Mr. Taylor, in his treatise upon the American law of Landlord and Tenant,^ thus states the doctrine : "A lessee during his occupation holds both by privity of estate and of contract. His privity of extate de- pends upon, and is co-existent with, the continuance of liis terra. By an assignment, he divests himself of this privity and trans- fers it to his assignee ; it remains annexed to tiie estate, into ' Walker's Case, Coke's Reports, 22. 2 Taylor's L. & T., ? 436. 284 en. XIV.J WHAT FACTS MUST BE STATED. § 237 whose possession soever the lands may pass ; and the assignee always holds in privity of estate with the original landlord. The privity of contract, however, is not transmitted to the pur- chaser on an assignment by the lessee, for his express covenants will, during the term, be obligatory upon him and his personal representatives, even for breaches after an assignment and ac- ceptance of rent by the lessor ; ^ but in case of covenants in law, after an assignment of the term, no action lies against the assignor." Even if the lease contained a covenant against the assignment, this privity of estate and consequent liability exists on the part of the assignee ; for if one enters under an assign- ment and enjoys the premises, he is estopped from denying its validity. Such covenant is for the benefit of the lessor, which he may waive by treating the assignee as his tenant.^ But there is no such privity if the original lessee shall underlet — i. e., shall make a sub-lease for a part of the term.^ It is not a sub- letting if he make a lease for part of the premises for the full term, for that is treated as an assignment j)i'o ianlo, and, so far, a privity of estate is created between such assignee and the lessor J* but it covers only the part assigned, and he would not become thereby liable for the whole rent, or for damage done to the premises not assigned. And, in general, whether in leases or deeds of conveyance, a privity of estate and consequent lia- bility exists between lessor and assignee, or vendor and remote vendees, between whom there is no express covenant, as to all covenants that run with the land.^ § 237. Same — Created by Statute. — In this class of cases privity of estate has been created by statute where it did not exist at common law. A tenant could not be required to attorn to a stranger, and hence the assignee of the reversion, though he might recover for rent arrear, could neither sue nor be sued upon the covenants of the lease.® The statute of 32 Henry VIII., 1 See cases cited by the author. ^ Blake v. Sanderson, 1 Gray, 332. 3 Holford V. Hatch, 1 Dougl. 183. * Piitten II. Deshoii, 1 Gray, a2-j ; Stevenson v. Lambard, 2 East, 575. 5 Taylor's L. & T., I 2B0. « Ibid., 2 489. 285 § 239 OF PLEADINGS. [PAET II. chapter 34, which has been generally adopted in this country, either directly or by adopting statutes applicable to our condi- tion previous to certain dates, authorized actions by and against assignees of the reversion. The statutes of New York,^ of Wis- consin,^ and of California^ give the fullest remedies to the assignees, both of the lessor and of the lessee, against the other party The statutes of Kentucky,* of Indiana,® of Kansas,* and of Missouri' give rights of action between the assignee of the lessor and the lessee, which would seem to be sufficient, for, as has been shown, one who takes an assignment from a lessee becomes at once privy in estate with the lessor. § 238. Xo Privity between Owner and adverse Holder. — It is sometimes supposed that rent, as for use and occupation, can be recovered by the owner against one who makes wrongful entry and holds adversely. But the relation of landlord and tenant does not exist ; there is no privity between them, either of estate or of contract, and none has been created by law.* Nor can money received by afi adverse holder of the realty from rents," or sales of timber," or from the sales of the land itself, be recovered by the plaintiff by showing that the land was his,^i for it was not in fact received for his use, but adversely ; and the law, which raises such use in certain cases, as we shall presently see, does not create a privity in matters so pertaining to the realty. § 239. Privity in commercial Paper and in other Con- tracts.— Although the law-merchant regulates the rights and liabilities of parties to negotiable paper, yet the relation between J 1 Stat, at Large N. T., 698, ^§ 22-27. '■ Rev. Stat. Wis. 1871, p. 1167. » Code Civ. Proc. Cal. 1874, §§ 821-823. • Gen. Stat. Kj'. 1873, p. 603, § 7. 6 2 Davis Stat. Ind. 341, § 10, including assignee of lessee. 6 Gen. Stat. Kan. 1868, p. 541. ' Wag. Stat. Mo. 882, J 29. 8 Bdmondson v. Kite, 43 Mo. 176 ; Taylor's L. & T., § 636. 9 Codman v. Jenkins, 14 Mass. 96 ; King v. Mason, 42 111. 223. >» Bigelow V. Jones, 10 Pick. 161. 11 Brigham v. Winchester, 6 Meto. 460. 286 CH. XIV.] WHAT FACTS JIUST BE STATED. § 240 the acceptor of a bill, or the maker of a note, and its indorsee, although he is not named in the instrument, is created by the contract. They not only obligate themselves to the payee, but to whomsoever the payee shall direct, and whoever shall be the lawful holder of, the instrument at its maturity is, by its terms, in privity with the maker or acceptor. And so, as between the drawer and payee, and indorser and indorsee, the relation is the act of the parties. But, by the custom of merchants, a stranger is authorized to accept a bill for honor supra protest, and to save the credit of any party who would be otherwise chargeable upon the paper. The stranger thus becomes an accommodation acceptor, and on behalf of the drawer or of any indorser, at his option,^ and by so doing, and without any request from the per- son for whose honor he accepts, a legal relation — a privity — is created between them. In ordinary personal contracts there is no privity except between the parties ; yet the statute author- izes an action in the name of whoever may be the owner — the assignee of the contract. Being unassignable at common law, it was necessary to bring suit in the name of the legal holder, who was the person with whom the engagement was made, and from whom the consideration proceeded. But this is changed by the Code, and, indeed, it had long before been changed in effect, by authorizing the holder of a non-negotiable instrument to sue in the name of the legal holder to his use, and in equitable actions to sue in his own name. The Code adopts the equitable rule, and the holder may bring an action in his own name ; but, as we have seen, under a former rule, he must show in his plead- ing his title or right to the paper. This change extends to an account, or any claim sounding in contract, and the privity may be said to be created by statute. § 240. No Privity in Torts. — It may be thought that, inas- much as rights of action arising out of some torts are assignable, so that the assignee may sue in his own name, it would be proper to say that a privity exists between the assignee and the tort feasor. But the term is not applied to torts, but only to rela- tions created by contract, or in regard to property held in har- 1 1 Pars, on Notes & Bills, 313 et seq. 287 § 242 or P'LEADINGS. [PART 11. mony with the title of the party with whom the privity exists. This may seem inconsistent with the application of the term in the next few sections, but there is uo inconsistency in fact. § 241. Privity arising- from Duty. — Privity is .sometimes created by a duty or obligation, when the party who may avail himself of it is ignorant of the transaction from which it arises. Ordinarily, the law will not imply a promise, unless the matter in regard to which it is implied had its origin in the promissor's request ; for the law will not impose upon one a contract which he did not make, or which is not implied from his aot.^ But there is an apparent exception in the case of money had and re- ceived to the use of another, and it was never necessary to al- lege that it was so had at the request of the person sought to be charged. It was supposed to have been paid over to him by a third person, to the use of the plaintiff, and, perhaps, without the plaintiff's knowledge ; and the law established such a privity between him who received it and its equitable owner that, in the equitable action of assumpsit, he was authorized to sue in his own name, and lay a promise to himself. The fictitious promise is now dispensed with, but the privity exists, and the liability is the same. The question arises, first, when a defend- ant, for a good consideration, moving from a stranger — as, by paying over money — promises such stranger that he will pay the plaintiff; and, second, when money is sent to the defendant to be paid over to the plaintiff, which money the defendant receives and holds, but neglects to pay it over. § 242. The two Branches of the Question considered. — Upon the first branch of the question I find the following language used by the Supreme Court of New York : ^ " Whether, when one per- son makes a promise to another for the benefit of a third, such third person can maintain an action upon it, though the consider- ation does not move from him, has been a question involved in a ' When the defendant is charged with goods sold and delivered to a third person, such person's authority to receive them, as well as their delivery, are issuable facts, which the plaintiff is bound to prove at the trial, and, therefore, to aver in the com- plaint. Smith i\ Leland, 2 Duer, 497. ' Delaware & Hudson Canal Co. u. Westchester County Bank, 4 Denio, 97. 288 CH. XIV. J WHAT FACTS MUST BE STATED. § 242 conflict of opinion as well at the bar as, to some extent, in the judicial decisions ; but we consider it now well settled as a gen- eral rule that, in cases of simple contracts, the person for whose benefit the promise is made may maintain an action in his own name upon it, though the consideration does not move from him." And the judge delivering the opinion cites a large num- ber of authorities in support of the proposition. ^ Upon the second branch of the question the law is not quite so clear. Still, if the defendant receives and holds the money, without affirmatively refusing to comply with the request, he is held to consent to the terms upon which it was put into his hands, and the law creates a privity between him and the person for whose use he is supposed to hold it. A case is given in Massachusetts ^ where a sum of money was remitted to defendant, by a debtor, with directions to pay the plaintiff a certain sum and apply the balance upon the debt. The defendant kept the whole sum, and the court held him liable to the plaintifl", uj^on the ground that, in receivjuig the money without objecting to the directions, he must be considered as having consented to the terms and condi- tions named by the person who remitted it. This case is after- wards referred to approvingly by the same court .^ If, however, the person to whom money may be paid for the use of another refuses to receive or hold it upon the terms, it is believed that the law will not impose upon him a trust or duty in relation to such person, against his will, so as to create a privity between them. Analogous to this is the liability of a devisee who ac- cepts a devise conditioned to pay the debts of the testator : "When a testator devises all his real and personal estate, and charges the devisee with the payment of his debts and legacies, the devisee, if he accepts the devise and bequest, can be 1 This question has been often before, the Supreme Court of Indiana. For the general proposition, see Davis u. Calloway, 30 Ind. 112 ; Miller v. Billingsly, 41 Ind. 489. The creditor of a firm is entitled to the benefit of a contract made by the re- maining partner and his surety, for the payment of the debts of the firm (Devol v. Mcintosh, 23 Ind. 529), and may sue in his own name. Dunlap v. McNeil, 35 Ind. 316. See, also, Wiggins v. McDonald, 18 Cal. 126 ; Grain v. Aldrich, 38 Cal. 514 ; Meyer 4). Lowell, 44 Mo. 328; Durham v. BischofF, 47 Ind. 211; Lawrence v. Fox, 20 N. y. 268. ' Hall V. Marston, 17 Mass. 575. ° Carnegie v. Morrison, 2 Mete. 396. 289 19 § 244 OF PLEADINGS. [PART II. sued at law for the recovery of a debt due from the testator, or a legacy given by him, without an express promise on his part to pay. * * * The liability is created by the acceptance charged with the duty." ^ It is held in Illinois that when two persons employed the same broker to sell cattle, owned sevei- ally, and of the proceeds the broker paid too much to one and too little to the other, there is no privity between them, and the amount overpaid cannot be recovered by the one who has re- ceived too little.^ But it should be noted, in view of what fol- lows, that the party receiving too much money made no claim to the other's cattle, did not sell or attempt to sell them by his agent, the broker, but was simply overpaid by the broker on account of his own cattle. § 243. Continued — Duty arising from domestic Obliga- tions. — In domestic relations, and from the obligations that therein arise, one may become bound by contracts made, not only without his knowledge, but against his command. Thus, the husband, the father, and the master are required to furnish necessaries to the wife, the infant child, and the apprentice ; and if he fail in his duty, another may furnish them and look to him for payment. The action of debt was the early and only proper remedy, as that action lay to enforce legal pecuniary obligations not arising from, as well as those arising from, con- tracts ; yet the judges, by allowing the fiction of an actual promise when there should have been one, permitted assumpsit to be brought, and thereby classed these obligations with implied contracts. § 244. Privity by Election and Estoppel. — Privity seems sometimes to be created by election, and upon the ground of estoppel. Thus, if a wrong-doer takes the property of another and sells it, the owner may treat it as a wrongful conversion, and sue for damages ; or, he may waive the tort and sue, as upon con- tract, for money had and received to his use. His right to do so is universally recognized — not that there is any real privity » Gridley ». Gfidley, 24 N. Y. 130. » Hall V. Carpen, 27 HI. 386, and Carpen v. Hall, 29 111. 512. ' 290 CII. XIV.] WHAT FACTS MUST BE STATED. § 245 between the parties, but tlie defendant will be estopped from setting up his own wrongful act as a defense.^ The pleadings might not differ materially from the case of a sale by the plaint- iff's consent, where his title was acknowledged, although the whole controversy at the trial were upon the question of title. If, however, the property taken by the wrong-doer has not been sold, the right to waive the wrong, and sue as for goods sold, is denied in Massachusetts,^ in Maine,^ in Pennsylvania,* and in Illinois;^ but is affirmed in New York," in New Hampshire,^ in Wisconsin,^ in Arkausas,** in Maryland,-^" and in Missouri." The reporter's notes to Putnam v. Wise, and Berley v. Taylor," give the great weight of his opinion in favor of the latter view, and say, in effect, that there is no difference in principle, in regard to the plaintiff's right of election, between the cases where the defendant has converted the property, wrongfully taken, into money, and where he has not. In neither case will he be permitted to set up his wrongful intent in bar of the obli- gation as laid in the pleading.^^ § 245. The Doctrine as applied to adverse Claimants of Land. — Between the true owner and adverse holder of land, whether the latter be the disseizor or his assignee, there is no such privity as will make the adverse holder liable as upon con- tract. He is responsible for the wrong, but his wrongful appro- priation cannot be treated as a sale of the land ; and ' ' the reason 1 Gordon v. Bnuier, 49 Mo. 570. 2 Jones V. Hoar, 5 Pick. 285, and note, s Kogers v. Greenbush, 57 Me. 441. « Willet V. Willet, 3 Watts, 277. 6 Creel v. Kirkham, 47 111. 844. » Putnam v. "Wise, 1 Hill, 240, and note ; and Berley v. Taylor, 5 Hill, 584. ' Hill V. Davis, 3 N. H. 384. 8 Norden v. Jones, 33 Wis. 600. 9 Hudson V. Gilliland, 25 Ark. 100. i» Stockett V. Watkins, 2 Gill & J. 326. " Gordon v. Bruner, 49 Mo. 570. " 1 and 5 Hill, supra. " As to the foundation of the right to waive the tort, etc., see, ante, section 154, and notes. If the defendant's liability is made to depend upon an implied agreement, then the doctrine of Jones v. Hoar, is the more reasonable ; but if he is held be- cause forbidden to set up his own wrong, the broader view is equally defensible. 291 § 246 OF PLEADINGS. [PART II. given for the distinction between real and personal property is that, by ratifying the conversion of the latter, the title vrhich may pass by mere delivery is thus confirmed in the assignee of the wrong-doer (or the wrong-doer himself) ; but the transfer of real estate is regulated by different rules, and great confusion would arise if it were predicated upon a money action."^ But " in an action of trespass against a municipal corporation for an illegal appropriation of land, it is held that a judgment for damages operates as a transfer of title, or dedication to the use for which it was appropriated. Soulard v. City of St. Louis, 36 Mo. 546. The distinction between this case and the same action against an individual arises from the fact that, in order to pass title to the city, no conveyance is necessary, and hence the seiz- ure may be treated as the true owner might treat a conversion of personal property, and the title be affirmed in the wrong-doer by an action for damages." Resting upon the authority of Soulard V. City of St. Louis, and the principle upon which it was based, the court, in the case from which I have quoted, sustained an action in favor of the true owner of land against one whom the city, having appropriated it to public use, had treated as the owner, and to whom it had paid the value assessed, as for money had and received to the use of such true owner. ^ RULE III. In an Action by or a^.ainst a Corporation, its legal Existence sJiould be sJiown. § 246. The Rule imperative, except when. — This rule is subject to another — that matters should not be pleaded of which the court will take judicial notice— and, therefore, it does not apply to actions by a domestic municipal corporation, or by a domestic private corporation created by a public act ; for no issue of fact can be made as to the existence of such corporation. The 1 Tamm v. Kellogg, 49 Mo. 118. ' In comparing the two cases it was further remarked : " In both cases the city has taken property for public use. In the one the owner brings trespass and confirms the title by receiving the value, in the same manner as if he had brought an action for taking his horse ; in the other the city has paid the wrong person, and the owner — as no deed is required — may affirm the seizure by suing for the money which should have been paid to him, as he might do if his neighbor had wrongfully taken and sold his personal property." 292 CH. XIV.] WHAT FACTS MUST BE STATED. § 247 court takes cognizance of the laws by virtue of which they exist and act, and they may sue like a private person. But when a foreign corporation comes into court, or a domestic one created by a private act, or when private proceedings are necessary to its creation, the court cannot know of its legal existence ; jt is a question of fact upon which issue may be taken — evidence may be required in regard to it ; and, therefore, upon principle, the fact must be pleaded.^ The distinction between corporations created by laws of which the court takes cognizance, and those that exist by laws or proceedings they are not supposed to know, has not always been made, and consequent confusion has arisen in the cases. But — subject to the exception arising from this distinction, and to another, presently to be considered, pertaining to the effect of an admission of the plaintiff's existence in the contract upon which the suit is based — the pleader should show the facts that give the plaintiff a legal existence, and in such manner that issue may be taken upon them. I state this con- clusion with diffidence, inasmuch as it seems to contradict some decisions by respectable courts, but it is the only one that can be sustained upon principle, or else I have failed to understand the foundation idea of pleading, as made imperative by the Code. § 247. The Foundation of the Rule. — In common-law pleading, a corporation is allowed to declare in its corporate name, without averring that it is a corporation or stating any facts showing its corporate existence, although it became such by virtue of a private act, or by virtue of private proceedings under a public act, and although it be a foreign corporation.^ We may admit this to have been the general, although it was not the uniform, doctrine under the old system, where there were so many departures from the logic of pleading that its rules often became but arbitrary edicts. But before deciding to adopt it under the new procedure, courts should first inquire whether the legal existence of the corporation is an issuable fact, to be established by evidence. If it is part of the plaintiff's case in ' St. Paul Division v. Brown, 9 Minn. 157. "^ See Ang. & Ames on Corp., § 632, and oases referred to in note 2. Contra : Win- nipisseogee Lake Co. v. Young, 40 N. H. 420. 293 § 248 OP PLEADINGS. [PAKT ll. fact, it is part of it on paper ; for if there is any principle dis- tinguishing the new system, it is that all ultimate facts necessary to be proved in making a cause of action must be stated. The answer is simply a confession or denial of the plaintiff's allega- tions, or a statement of new matter of defense or counter-claim. A denial makes it necessary for the plaintiff to prove the allega- tion denied. A defense of new matter requires affirmative evi- dence by the defendant of the truth of the new matter alleged. No issue of fact can be made except by an affirmation and denial, and the one who makes the affirmation must sustain it by evi- dence. If any matter is part of the plaintiff's case, he, upon issue taken, must prove it; and anything which is new matter of defense must, if denied, be established by the defendant. And I neither the plaintiff nor defendant should state any fact he is not thus required to establish; and, on the other hand, he must state all facts he is thus required to prove. It is not denied that the legal existence of the plaintiff as a corporation is a fact which may be put in issue, and, upon principle, it is so put in issue by an affirmation by the plaintiff and denial by defendant, or by an affirmation by the defendant and denial by the plaintiff; and the question, as to which party is required to make the first allegation in regard to the matter will be settled by considering who must offer the first evidence. The Code does not change the rules of evidence. A fact once necessary to a cause of action is neces- sary still. What a party was once required to prove he still must prove, and a pleading which does not state what is neces- sary to be proved fails to state a cause of action. This was always so in theory. We now conform our practice to the theory. Was, then, the legal existence of a corporation part of the plaintiff's case? Could an issue be so made as to require, in the first instance, proof of the fact? § 248. How shovm in Common-law Practice. — It was well settled under the old system that an issue could be so made, as to the fact of incorporation, as to require the plaintiff to prove it as part of his cause of action, notwithstanding he was not re- quired to state the fact in his declaration. As to the manner of making the issue, the courts differed. In England, and in many 294 CH. XIV.] WHAT FACTS MUST BE STATED. § 248 of the states, the general issue made it necessary for the plaint- iff, upon the trial, to prove the fact of incorporation,^ unless it was created by a public act of which the court took judicial notice, or unless the defendant had so acknowledged its legal existence as to dispense with the necessity of proving it. In other states it was held that the fact of incorporation could be put in issue only by a special plea in abatement, or in bar, the general issue admitting the corporate existence.'' But in either, case the issue was made, of which the plaintiff held the affirmative. If made under the general issue, the fact was supposed to be affirmed in the declaration, although not expressly stated ; and it was frequently held that a plea of nul tiel corporation was bad, because it amounted to the general issue — that is, that it was not new matter, but simply a denial of one of the plaintiff's supposed material allegations.^ Where a plea of nul tiel corpo- ration was permitted, being in the form of a special plea, a repli- ''• Kees V. Conococheague Bank, 5 Kand. 326 ; Hargrave v. Bank of Illinois, Breese, 84 ; Jones v. Bank of Illinois, Breese, 86 [contra dictum in Mclntire v. Preston, 10 111. 48) ; Lewis v. Bank of Kentucky, 12 Ohio, 132 ; Bac. Abr., title " Corporations," e, 2 ; Henriques v. Dutch West India Co., 2 Ld. Raym. 1535. See cases hereafter cited. The >Iarvland Court of Appeals thus states the common-law rule, and distinguishes between a foreign corporation and one of whose existence the court will take judicial notice : " That, on the general issue, it was necessary for the plaintiff to show its charter of incorporation, is clear, as will be seen by reference to the following authorities : [Citations corrected] Henriques v. Dutch "West India Co., 2 Ld. Raym. 1535 ; 3. c, 1 Stra. 612 ; 2 Bac. Abr. 212. This view is adopted in New York by numerous decisions. Jackson v. Plunibe, 8 Johns. 878 ; Dutchess Mfg. Co. «. Davis, 14 Johns. 245; Bank of Auburn v. Weis, 19 Johns. 303; McDonald u. Neilson, 4 Cow. 178. At first view it might be supposed that this question had been decided differently in Farmers' Bank v. Whittington, 5 Har. & J. 489, and that the want of a charter could be taken advantage of only by a plea in abatement. * * * The charter of the Farmers' Bank of Somerset was a public law, which judicial tribunals were bound to notice, and, being such, the plaintiff could not, before he could make out his title to recover, be called upon to show in evidence that which the court was bound, ex officio, to notice." Agnew v. Bank of Gettysburg, 2 Har. & G. 493. ■' Society, etc., v. Pawlet, 4 Pet. 480; Zion Church v. St. Peter's Church, 5 Watts & S. 215 • Christian Society v. Macomber, 3 Mete. 285 ; School District v. Baisdell, 6 N. H. 197 et seq. » Spencer, J., in Bank of Auburn v. Weed, 19 Johns. 303, says: "It has been de- cided that plaintiffs are bound to prove, as part of their title, that they are a corpo- ration. This plea, then [nul tiel, etc.], is expressly against the rule, for the defendants attempt to put in issue, by a special plea, part of the plaintiff's title to recover, and a fact which the plaintiffs must prqve in the first instance." 295 § 249 OF PLEADINGS. [PART II. cation was necessary expressly affirming the incorporation upon which issue was taken, the practice being analogous to an assign- ment by replication of breaches in the conditions of a bond, after oyer by defendant and general averment of performance. In either case the plea was in bar, and not in abatement, as the latter went only to a misnomer of the plaintiff, and not to its existence,! and the plaintiff was bound to prove the fact of incor- poration. § 249. This Practice not to be followed. — I have thus re- ' 1 Kyd on Corp. 284 ; 1 Saund. [340] note 2 ; Guaga Iron Co. v. Dawson, 4 Blackf. 202 ; Christian Society v. Macomber, 3 Mete. 235 ; Mayor v. Bolton, 1 Boa. & P. 40 ; 6 Vin. Abr. 308. But little is found in the books in regard to the old plea of nul tiel corporation. The practice is believed to have been as follows : If the plea concluded to the country, it was a special issue, and the plaintiff must prove the incorporation. A similar plea was required by the New York Revised Statutes. If it concluded with a verification, the plaintiff must reph', and state, in some detail, the facts giving it a legal existence — as, the charter and user, or prescription and user, or whatever was relied upon. Kyd (Kyd on Corp. 284) says: "If a man sue as the head of a cor- poration, the defendant may plead that there is no such corporation as that in whose right the plaintiff pretends to sue ; to which the plaintiff may reply, setting forth the manner in which the corporation was constituted, whether it has existed by prescrip- tion or been created by patent." He refers to 44 Assizes PI. 9, and to Bro. Corp. 44, to which I have not access. Inasmuch, however, as the general issue came to be held to require proof of incorporation, the special plea of nul tiel corporation was properly considered as violating the rule which forbade special pleas of matter which was in effect denied by the general issue, and went out of use. In Pennsylvania (Zion's Church V. St. Peter's Church, 5 Watts & S. 215) and in New England (Christian Society v. Macomber, 3 Mete. 235 ; Phcenix Bank v. Curtis, 14 Conn. 437 ; School District u. Baisdell, 6 N. H. 197; Oldtown K. Co. i;. Veazie, 39 Me. 571) the old plea is still used. In Massachusetts it may be either a plea in bar or in abatement. In Langdon v. Potter, 11 Mass. 313, the opinion says: " There are many cases where the matter of the plea goes to preclude the plaintiff forever from maintaining the action, and it may, therefore, be pleaded in bar; yet, as in point of form it is a disa- bility of the plaintiff, it may also be pleaded to the person." This language was quoted in Christian Society v. Macomber, 3 Mete. 235, as applicable to a corporation plaintiff, the court adding: "But though a perpetual disability of the plaintiff may be pleaded in bar, it may also be pleaded in abatement at the election of defendant; " citing authorities. And so in Vermont. Boston Type Foundry v. Spooner, 5 Vt. 93. The allegation that the plaintiff is a fictitious person was also matter of abatement. Doe V. Penfield, 19 Johns. 308; Campbell v. Gulbreath, 5 Watts, 423; 1 Chitty's PI. 448. This distinction is of little importance under the Code, for the technical plea in abatement is abolished, and the statute points out how the defects in a pleading are to be taken advantage of, and provides that they shall be specifically stated. It does not matter whether we call these defects, when not appearing in: the pleading, but spe- cially set up in the answer, matter of abatement or bar. 296 CH. XIV.] WHAT FACTS MUST BE STATED. § 250 ferred to the old practice because it is decisive of what it should be under the Code. Facts material to a cause of action are no longer stated in the replication, but must be shown in the com- plaint or petition. Answers of new matter are not permitted for the mere purpose of requiring the plaintiff to state his full cause of action— of new matter which the plaintiff cannot deny or avoid, and of new matter which is purely negative, and which the pleader cannot, and is not required to, sustain affirmatively by evidence. I mean they are not permitted by the logic of plead- ing or by the doctrines of the Code, although a special negative answer in regard to corporations is required by the New York statute, as we shall see. And, as before said, the doctrine more commonly held, that the plaintiff was required to prove the fact of incorporation under the general issue, implies an allegation of the fact in the declaration ; and, as the Code tolerates neither fictitious statements nor supposed statements, the petition should affirmatively state the fact. § 250. The ISew York Rule. — In New York, previous to the Revised Statutes, it was uniformly held that when judicial cog- nizance could not be taken of the existence of a corporation plaintiff, it must, under a plea of general issue, be established by evidence,^ and that nul tiel corporation was bad only because it amounted to a denial.^ But the Ee vised Statutes of 1830 pro- vided that, in suits by a corporation oi'ganized under the laws of that state, it should not be necessary to prove its existence un- less the defendant shall have pleaded the want of incorporation in abatement or in bar. This provision was held to be in force after the adoption of the Code, and in 1864 was reenacted to conform to the present phraseology in pleading.^ If the incor- poration of the plaintiff is not to be proved, it may be reason- able to say that it need not be pleaded ; * and, for the same reason, 1 Bank of Auburn v. "Weed, 19 Johns. 300 ; Bank of Utioa v. Smalley, 2 Cow. 770 ; Trustees of M. E. Church v. Tryon, 1 Denio, 451. 2 Bank of Auburn v. Weed, supra. ' See 2 Stat, at Large, 477, I 3; also adopted in Wisconsin, ch. 148, § 3. * Shoe & Leather Bank v. Brown, 9 Abb. Pr. 218. 297 § 251 or PLEADINGS. [PAET II. that ^vould dispense with the averment when it was created by a public act of which the court would take judicial notice, or where the defendant, in the contract upon which the suit is based, has acknowledged the fact of incorporation. And the New York Court of Appeals has held a complaint good on de- murrer, for want of capacity to sue, where a domestic corpora- tion was plaintiff, but there was no averment in regard to the fact of incorporation;^ two of the judges dissenting. Whether this holding would apply to a foreign corporation has not been expressly decided by the Court of Appeals, although the Su- preme Court, in general term, held the plaintiff under obligation, when the denial was general, to establish the incorporation by evidence.^ In this case there was no allegation upon the subject, and no question of pleading was raised ; but it is difficult to un- derstand how the plaintiff should be required to prove any ulti- mate fact which he is excused from stating. Again, in Connecti- cut Bank v. Smith,^ the same court, at special term, on demur- rer, held it obligatory upon a foreign corporation plaintiff to allege the fact of incorporation, unless the defendant had entered into a contract with it by its corporate name. § 251. The Rule in certain other States. — The Supreme Court of California held it sufficient, on demurrer, for the com- plaint to allege that the plaintiff was a corporation under the laws of that state.* In Ohio it is held, in one case, that the ex- istence and powers of a foreign corporation must be specially ' Phcenix Bank v. Donnell, 40 N. Y. 410. It was held that in order to sustain the demurrer, the non-existence of the plaintiff as a corporation must affirmatively ap- pear. The year before, in Fulton Pire Insurance Company v. Baldwin, 37 N. T. 648, the same court held that a general demurrer would not raise the question, but that the want of capacity to sue riiust he stated as its ground. See Union Marine Insur- ance Company v. Osgood, 1 Duer, 707, where the plaintiif is excused from pleading its incorporation, because it is excused by statute from the necessity of proving it a good reason. » Waterville Mfg. Co. v. Bryan, 14 Barb. 182. ' Connecticut Bank v. Smith, 9 Abb. Pr. 168 ; s. c, 17 How. Pr. 487. See Myers v. Machado, 14 How. Pr. 149. See, also, Kennedy v. Cotton, 28 Barb. 59, which contra- dicts Johnson v. Kemp, 11 How. Pr. 186, and Bank of Havana v. Wickham, 16 How. Pr. 97, and holds that the common-law rule still prevails. * California Nav. Co. v. "Wright, 6 Cal. 258. 298 CH. XIV. J WHAT TACTS MUST BE STATED. § 251 pleaded, and in another, that the objection must be taken by answer.^ Indiana and Kansas seem to have adopted the rule of common-law pleading, which dispenses with the necessity of any allegation upon the subject.' The state of Iowa has enacted as follows: "A plaintiff suing as a corporation, partnersliip, ex- ecutor, guardian, or in any other way implying corporate part- nership, representative, or other than individual, capacity, need not state the facts constituting such capacity or relation, but may aver generally, or as a legal conclusion, such-capacity or re- lation ; and when a defendant is held in such capacity or relation, a plaintiff may aver such capacity or relation in the same general way."' Thus, in that state some of the questions embraced in this rule are settled by legislation.* In Wisconsin the general pro- 1 Devoss V. Gray, 22 Ohio St. 160. The plaintiff had endeavored to avail himself of the provisions of a foreign charter. The court, per Mcllvain, J., says : " Our courts will not even take notice of its existence. If, by comity or otherwise, its powers or franchises, or any right claimed under them, become the foundation of an action in this state, they must be specially pleaded, and a pleading for that purpose which does not disclose the name of the state by which, nor the terms in which, they were granted must be held bad on demurrer." In Smith v. "Weed Sewing Machine Company, 20 Ohio St. 562, the opposite view is taken, on common-law authority. 2 In O'Donald v. Evansville, Indiana & Cleveland Eailroad Company, 14 Ind. 259, the defendant below deriiurred to the complaint, upon the ground that it did not aver that the plaintiff was a corporation. The demurrer was overruled, the opinion saying that " it did not appear on the face of the complaint that plaintiff was not a corporation, or had not capacity to sue; and, for the purposes of the suit, they should be intended to be a corporation, the name being such as might be probably adopted." The action was upon a promissory note given by defend- ant to the plaintiff below, by its corporate name, and the court might have iustified its holding by the rule, hereafter to be considered in the text, that the defendant had admitted that the plaintiff was a corporation, and would not be permitted to deny it; but the opinion places the decision upon other grounds. Kyan v. Farmers' Bank of Missouri, 5 Kan. 658, seems, by affirming the judgment be- low, to hold that the petition need not aver the plaintiff's incorporation, although no opinion is given. See Campbell v. Blanke, 13 Kan. 62. It should be remembered that, except as an express denial, there is no longer a general issue. All issues are special ; the general denial of all the allegations Of the other party iS a specific denial of each as much so as though denied sariatim, and there can be no denial of that which is not alleged. The courts in those code states which excuse the allegation of in- corporation when the statute does not in effect excuse it must act upon the old theory — either that it is supposed to be alleged or that it may be set out in the replication. 3 Code 1873, ? 2716. * The averment that the defendant is a company doing business in this state, under the laws thereof, held to be a sufficient averment of defendant's incorporation. Root V. Illinois Central B. Co., 29 Iowa, 102. See Savings Bank v. Horn, 41 Iowa, 55, as to the mode of taking advantage of the omission of the general allegation. 299 § 252 OF PLEADINGS. [PAET II. vision of the New York statute dispensing with proof of plaintiff's corporate existence, unless specially denied, has been adopted;' and it is also provided that it shall not be necessary to recite the act of incorporation, or the proceedings by which a party may be incorporated, or to set forth the substance thereof ; but the same may be pleaded by reciting the title of such act." This is confined to domestic corporations ; but inasmuch as the statute * authorizes foreign corporations to sue in the Wisconsin courts in the same manner as domestic ones, the Supreme Court holds the above provision applicable to them as well.* The Minnesota Code provides ' that, ' ' in actions by or against corporations- enacted by or under the laws of this state, it is sufficient to re- fer, in the complaint or answer, to the act of incorporation, or the proceeding by which such corporation was created." * § 252. Effect of acknowledging tlie Incorporation. — I have alluded to a supposed exception to the requirement to plead the fact of incorporation, arising from its acknowledgment by the defendant. There are a multitude of cases bearing upon the subject, and, to understand them, a distinction should be made (though it does not always appear in the cases) between a pre- tended corporation — one having no existence in fact — and one irregularly organized, or which may have forfeited its charter. 1 Eev. Stat., oh. 148, § 3. * Ibid., § 4. So far as the act of incorporation is concerned, the pleader will reach the same result by availing himself of the general privilege, in pleading a private domestic statute, by referring to it by its title and date of its passage. Ibid., ch. 125, ?25. 8 Eev. Stat., oh. 148, § 11. * Farmers' Loan and Trust Co. v. Pisher, 17 Wis. 114 ; Connecticut Mutual Life Ins. Co. 1/. Cross, 18 Wis. 109. 5 Code Proc, ? 98. ^ In St. Paul Division No. 1 v. Brown, 9 Minn. 157, I find this language : "A cor- poration created by statute which requires certain acts to be done before it can be considered in esse must show [and, of course, allege] such acts to have been done, to establish its existence: but when, as in this case, a corporation is declared such by the act of incorporation, this rule does not prevail, and no such allegation is necessary." In Dodge v. Minnesota Plastic Slate Roofing Company, 14 Kiim. 49, in reference to a corporation defendant, it is "said that "at common law, in an action against a corporation by its corporate name, it was not necessMry, for the purpose of alleging its existence, to aver the authority or act by or under which it was created." The authorities referred to in the opinion speak, however, of par- ties plaintiff'. 300 CH. XIV. J WHAT TACTS MUST BE STATED. § 253 In regard to the latter class of cases, there has never been but one opinion, and such an irregularity in forming the company — especially if the defendant participated in it — or such a non-user or misuser, as would be a sufficient ground to produce a forfeit- ure of corporate rights cannot be taken advantage of collaterally in an action by a corporation de facto, but the irregularity, or the non-user or misuser, must be ascertained by a direct judicial proceeding, and the forfeiture judicially declared.^ But it is also held, when one makes a contract with the plaintiff by a cor- porate name, that, in an action upon such contract, he is estopped from denying its corporate existence,^ although this doctrine has been disputed.^ § 253. Language of the Courts upon this Question, — The case of The Welland Canal Company v. Hathaway is quoted in Bigelow on EstoppeP without comment, and, it appearing to be contrary to most other decisions, a brief review of some of them may enable us to decide what, upon this subject, may be consid- ered as established. Angell & Ames, in their work upon Corpora- tions, towards the close of section 635, use the following language : "When a cognizance, mortgage, note, or other instrument is given to a corporation, as such, the party giving it is thereby estopped from denying the corporate existence of the corpora- tion ; no further proof thereof is necessary until such proof is rebutted." The last phrase, intimating that the admission im- plied by the contract is a mere question of evidence, and may be shown to be untrue, is contrary to the idea of estoppel, and is ' Hughes V. Bank of Somerset, 5 Litt. 45 ; Searsburgh Turnpike Co. v. Cutler, 6 Vt. S15 ; Brookville & Greensburg Turnpike Co. v. McCarty, 8 Ind. 392 ; John v. Farmers' Bank, 2 Blackf. 367 ; Trumbull Mutual Fire Ins. Co. v. Horner, 17 Ohio, 407 ; Kice V. Rock Island & Alton E. Co., 21 111. 93 ; Tarbell v. Page, 24 111. 46 ; Palmer v. Law- rence, 3 Sandf. 161 ; Tar Elver Nav. Co. v. Neal, 3 Hawks, 520. 2 Congregational Societyo. Perry, 6 N. H. 164; Henriques v. Dutch West India Co., 2 Ld. Eaym. 1535 ; Connecticut Bank v. Smith, 17 How. Pr. 487 ; All Saints Church V. Lovett, 1 Hall, 191 ; Eyan v. Vanlandingham, 7 Ind. 416 ; Brookville & Greensburg Turnpike Co. v. McCarty, supra ; Tar Eiver Nav. Co. v. Neal, supra ; "Worcester Medical Institution v. Harding, 11 Cush. 285; Farmers & Merchants' Ins. Co. V. Needles, 52 Mo. 17 ; National In?. Co. v. Bowman, 60 Mo. 252. ' Welland Canal Co. v. Hathaway, 8 Wend. 480. * Big. on Estop. 477. 301 § 253 OF PLEADINGS. [pART II. not sjistained by the authorities referred to, unless by Den v. Van Houton.^ In this case the action was not by a corporation, but by a private person, on a mortgage given to a corporation and assigned to him. The objection was that it had not been proved that the assignor was a corporation, and to this objection the court says: "In such case the admission by the defendant himself in the deed of mortgage, under his hand and seal, is, as against him, sufficient proof, when uncontradicted, of the exist- ence of the corporation." The words "when uncontradicted" imply that the court treated the admission by the mortgage as matter of evidence merely, and this further appears by the cita- tion of Mayor of Carlise v. Blamire,^ where the issue was upon a plea in abatement, for misnomer. The plaintiff, being admitted to be a corporation by prescription, sued upon a covenant for quiet enjoyment, in a deed by defendant's ancestor, which described the plaintiff by another name. The declaration showed that the citizens, etc., were from time immemorial incorporated by divers names, and by the name mentioned in the deed ; held, that the deed was evidence of such name as against those who claim under the grantor. In Congregational Society v. Perry^ the language of the court is : " The giving a note is an admission by the defendant of the existence of the corporation, and he cannot now be permitted to deny that there is a duly organized corporation." In All Saints Church v. Lovett* the defendant had been treasurer of the society, and suit was brought for the balance in his hands. The court held he " should not be permitted to allege that the original incorporation of the church was invalid or irregu- lar," as he sought to do. In Kyan v. Vanlandingham," the defendant had made notes to the plaintiff's assignor, a corpora- tion, and in the suit upon them the court held that if the cor- poration could, under the Constitution, have a legal existence at the time the notes were executed, "the defendant, having con- tracted with it as such, cannot be allowed to deny it j " and the 1 5 Halst. 270. 2 8 East, 487. s 6 N. H. 164. * 1 Hall, 191. 6 7 Ind. 416. 302 CH. XIV.] WIIAT FACTS MUST BE STATED, § 254 same language is afterwards used in Brookville & Greensburg Turnpike Company v. McCarty.^ In Worcester Medical Institu- tion V. Harding^ the opinion of the court says : "It seems to be well settled that the defendants, having contracted with the cor- poration, would be estopped to deny its existence." In Meikel v. The German Savings Fund Society \the defendant below was not allowed to plead that, at the time of\the execution of the note sued on, the plaintiff was not a corporation, but was permitted to say that it was not at the commencement of the suit. In Missouri the language of the court is : " The defendant, having entered into a contract with the insurance company in its cor- porate name, thereby admitted it to be duly constituted a body politic and corporate."* The Kentucky courts adopt the doc- trine without reservation: "The note sued on estops the de- fendants, and will not permit them to deny the legal existence of the plaintiffs."* "The defendants are estopped to deny that there was such a corporation by the very terms of their note, in which they promise to pay the president, directors, and company of the Bank of Gallipolis," etc.* " By executing the note pay- able to the corporation, the defendants were estopped to deny its existence at that time."' In Florida a certain railroad company had dealt with the plaintiff as a corporation, and the defendant, by judicial sale, had purchased the interest of said company in certain property of the plaintiff; and it was held that, as the railroad company was estopped from denying the corporate existence of the plaintiff, the defendant was also estopped ; and that an answer averring want of information as to such corporate existence was frivolous.* § 254. Welland Canal Company y. Hathaway — Its Points. The rulings in New York are not as clear as in other states, 1 8 Ind. 392. 2 11 Cush. 285. = 16 Ind. 181 ; also, in Hartsville University v. Hamilton, 34 Ind. 506. * Farmers & Merchants' Ins. Co. v. Needles, 52 Mo. 17 (affirmed in National Ins. Co. V. Bowman, 60 Mo. 252, and Board of Commissioners v. Shields, 62 Mo. 247). ^ Depew V. Bank of Limestone, 1 J. J. Marsh. 380. « Bank of Gallipolis v. Trimble, 6 B. Mon. 601. ' Jones V. Bank of Tennessee, 8 B. Mon. 123. 8 Jackson Sharp Co. v. Holland, 14 Ma. 884. 303 § 255 OF PLEADINGS. [PAET II. owing, perhaps, to the able opinion of Judge Nelson in Welland Canal Company v. Hathaway.^ In this case the plaintiff was a foreign corporation ; its corporate existence had been put in issue, and the court held that the defendant was not estopped from denying it, although he had made a contract with the plaintiff by its corporate name. The reasoning was, in substance, that the defendant had done nothing which in equity should prohibit him from pleading the truth ; that the doctrine of estoppel in pais did not apply ; that it is a purely equitable prohibition ; that a party will be concluded from denying his own previous acts or admis- sions which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter. The agents of the plaintiff were not deceived ; they knew whether the plaintiff had a corporate exist- ence ; and it was their fault, and not the defendant's, if they assumed a fictitious existence or fictitious powers. The opinion also denies that the defendant admitted either that the plaintiffs were incorporated by competent authority, or admitted any assumed powers. The contract shows only the fact of an as- sociation ; ' ' but if such association can exist without being incorporated, why infer more than appears on the face of the contract?" § 255. Continued — The Points examined. — If Judge Nel- son was correct in defining the doctrine of estoppel in pais, it cannot apply to cases of this kind. Admit that the element of fraud on the part of him upon whom it oiDcrates may not be required — that it is not essential that the deception should always be intentional when the other elements exist ;^ still, when the estoppel is by conduct, there must be actual, if unintentional, deception by which the other party is influenced, and it is implied in his definition. But in the present case there could have been no such deception and influence to induce the plaintiff's agents to assume a fact which they knew did not exist. When estoppel by conduct is sustained, it has been on the ground that one party has 1 8 "Wend. 480. 2 See CorkhiU v. Landers, 44 Barb. 218 ; Taylor v. Zepp, 14 Mo. 482 ; Dolde v. Vodicka, 49 Mo. 98. 304 CH. XIV.J WHAT FACTS MUST BE STATED. § 255 been influenced by the other to do this or that ; that he has been made to believe what is not true in fact — generally when the other party knew better, though sometimes, under peculiar cir- cumstances, the doctrine has been applied when both parties were equally ignorant.' But there are other classes of estoppel which are more like estoppels by deed. Thus, as between landlord and tenant, the latter has acknowledged his landlord's title by taking a lease and entering under him, and, by so doing, the position of the landlord has been changed, and he might, in consequence, be greatly injured if he who is thus suffered to enter should be permitted to dispute the title. So with a bailor and bailee — the latter may have hired the property, or otherwise have contracted in regard to it, and thus obtained possession. If the tenant be evicted, or if a bailee be held to answer to the true owner, the estoppel ceases ; but, otherwise, the rule is enforced, and it does not matter what opinion as to their title to the property was held by the landlord or by the bailor. The element of ignorance or deception does not enter into the case. The estoppel under consideration, if found to exist at all, must be based upon a similar foundation, and it may, perhaps, be called an estoppel by contract. Notwithstand- ing there may be no deception, there is an admission of a fact by the agreement, in consequence of which the plaintifi" has parted with its consideration — as, in case of a note taken for money loaned — and a denial of the fact would work injury to the extent of such consideration. The other point is that a contract with a corporation by its corporate name seldom shows the fact of incorporation. It may be a joiijt-stock company, or a partner- ship by the same name ; hence the corporate existence is not admitted. To this it may, perhaps, be said that one who is estopped — as, by lease — does not necessarily admit in terms the fact which he is not permitted to deny. He contracts to pay rent for the use of certain property ; the lessor may have no title, yet so long as he is undisturbed the question does not con- cern him. So with one who has contracted with a corporation ; it does not concern him whether the plaintiff be a corporation, or 1 Dolde V. Vodicka, 49 Mo. 98. 305 20 § 257 OF PLEADINGS. [PAKT U. a joint-stock company, or a partnership ; he has admitted a legal existence by a certain name ; for a good consideration, has obli- gated himself to whomsoever that name represents, and ought to respoiid. This may not answer the objection, and it is to be regretted that the courts that have thus applied the doctrine of estoppel have not given their reasons for so doing.^ § 256. As to Defendant's Interest In having Plaintiff sue by his true Name. — We have seen that if the plaintiff be a corporation de facto, the regularity of the organization cannot be inquired into collaterally ; and that will meet most of the cases where its legal existence is denied. But in the case last sup- posed, can it be said that the defendant has no right to require that the plaintiff shall sue in his true name ? Suppose he has given a note to a partnership by a name like those applied to cor- porations, and he is sued upon the note — may he not demand that the names of the partiSs appear in the record ? If they sue by the name given in the note, the petition may not be demurrable, for it shows a contract made with the plaintiff by that name, and the defendant has, at least, acknowledged the existence of some body or persons capable of contracting by that name. It would therefore appear that, if he object at all, it should be for mis- nomer; and this raises the question whether, inasmuch as mis- nomer is not one of the grounds of demurrer, etc., named in the statute, it can be pleaded under the Code, and what, in such case, should be the remedy — questions to be considered in another connection.* § 257. Whether called Estoppel or Admission, the Pleading the same. — But whether we say that by contracting with the plaintiff in" the corporate name the defendant is estopped, will not be permitted to deny its corporate existence when the con- tract was made, or that he has merely acknowledged, but may disprove, it, the effect upon the petition is the same. The plaint- iff, in either case, is relieved from the necessity of proving the fact as part of his, prima facie, cause of action. The petition ' See Farmers & Drovers' Bank ». Williamson, 61 Mo. 261. « See, post, I 427. 306 CH. XIV.] WHAT FACTS MUST BE STATED. § 259 shows the contract and the admission, and, upon principle, he should not be required to prove the fact admitted ; it becomes matter of defense. § 258. Otherwise, tlie Averment necessary. — But without such admission, when one comes into court claiming to be an at- torney for something which may, or may not, have an existence — a mere phrase as it stands — and institutes a proceeding on behalf of that phrase, it would seem that there should be an averment showing that the phrase stood for something having a legal ex- istence, unless such existence is already known by the court. If the phrase be the name of a natural person, his existence is pre- sumed, unless otherwise shown ,^ and the body of the pleading shows his connection with the transaction in respect to which the suit is brought. But a corporation is an artificial person, not presumed to exist even, and the phrase may stand for such arti- ficial person, or for a joint-stock company, or for a partnership, or for a private person, or for nothing at all. The allegation, then, that the plaintiff is a corporation, even if permitted to be made in general terms, would seem to be essential, to show its right to bring the suit.^ § 259. Conclusions. — I arrive at the following conclusions upon this subject : (1) Of the existence of a public or municipal corporation, or of a private corporation created by a public act, the court will take judicial cognizance ; and the fact need neither be stated nor proved. (2) A private corporation is sometimes created by a private legislative act, or by some proceeding author- ized by law, or by a foreign act or proceeding — of none of which can the court take judicial notice ; its legal existence is a fact. .Unless the pleading shows that the defendant has admitted it, or is estopped from denying it, its proof may be required; and » See precedent for pleading "no such person," in Story's PI. 91. ^ Some of the New York oases make a complaint, if defective in this particular, demurrable because the plaintiff has not legal capacity to sue ; others say that it is not demurrable unless it afSrmatively appears that it has not such capacity. If evidence of incorporation is necessary, it is part of the plaintiff's case ; he is only bound to prove the facts constituting his cause of action ; and if any such fact is omitted in the pleading, it should be demurrable for that reason. 307 § 261 OF PLEADINGS. [PAET II. every ultimate fact to be proved should be pleaded. To these propositions may be added two more, although they properly pertain to other subjects, to wit, the manner of making state- ments, and the remedies for the violation of the rules of pleading. (3) When the action — as, its gist or substance — does not involve the existence of the corporation, but is brought to enforce some right, or redress some wrong, the allegation is introductory or explanatory — i. e., matter ofinducement — and the same particu- larity of statement should not be required as in matter of sub- stance. (4) If there is an allegation of incorporation, but it is .not sufficiently specific, the defect cannot be reached by demur- rer, but the defendant should move to make the pleading defi- nite and certain. § 260. Rule as to Corporations Defendant. — In regard to actions against corporations, the same general rules should pre- vail, although, even on motion, the plaintifi^ should not be re- quired to plead the charter, or to state all the facts that would show its corporate existence ; and he is excused for the reason that he is not supposed to know them.^ But a complaint upon a promissory note which failed to allege ttat the defendant is an incorporated company, and that the note was transferred, in due course of business, by agents properly authorized, has been held to be demurrable, as not stating facts constituting a cause of action.^ R ULE IV. When Persons sue or are sued in a representative Capacity, the Authority or Relation must be shown. § 261. Persons embraced in the Rule. — Those who sue or are sued in a representative capacity may be classed as (1) trustees of an express trust, and persons to whom a promise is* made for the benefit of another ; (2) assignees in bankruptcy or insolvency, and receivers appointed by the court; (3) executors 1 A general allegation of incorporation is sufficient. Stoddard v. Onondaga An- nual Conference, 12 Barb. 673; Dodge u. Minnesota Plastic Slate Eoofing Co., 14 Minn. 49. 2 Mechanics' Banking Assn. v. Spring Valley Shot and Lead Co., 13 How. Pr. 227. b08 • CH, XIV. J WHAT FACTS MUST BE STATED. § 263 and administrators; (4) surviving partners, and other joint obligors or obligees ; (5) the committee or guardian of a lunatic ; and (6) the husband on a liability to, or by, the wife. § 262. 1. Trustees of an express Trust, and Persons to whom a Promise is made for the Benefit of another. — , When the con- tract upon which the action is based has been made with the trustee in his own name, or when an agent merely, or any other person, becomes an obligee or promisee, though for the benefit of another, no extrinsic facts need be alleged. The description of the obligation and its breach shows, not only the wrong, but the person who, under the statute, has a right to apply for its redress.^ And when property in specie, or when contracts, are assigned to a trustee for any purpose, little need be said in regard to the plaintiff's right. In enforcing the contract, or in protect- ing the property, he must show his title ; and whether it be his in trust or in his own right, his right to sue in his own name is the same. This will cover most of the actions which may be brought by trustees of an express trust, as ,it does all when the promise is made to one for the benefit of another. But trustees may be called on to protect trust property ; or, otherwise, to bring an action for the benefit of the beneficiary, when no con- tract has been made with him in his own name, and when his right to represent the beneficiary will not appear without showing the facts which create the trust. In such case the facts must be stated, and with such certainty that they can be traversed. § 263. 2. Assignees in Bankruptcy or Insolvency, and Re- ceivers appointed by the Court. — By the express provisions of the Bankrupt Act, all the property of the bankrupt — all his rights, his choses in action, etc. — pass to the assignees in bankruptcy, with the same right to sell, sue for, etc., pos- sessed by the bankrupt had no assignment been made ; ^ and in case of the death of one of the assignees, the right survives.* So far as the goods and chattels of the bankrupt are concerned, 1 See, ante, Jg 54-57. » U. S. Rev. Stat. 1875, ^J 5044, 5046. This act is now repealed. » Ibid., i 6042. 309 § 263 OF PLEADINGS. [PAET II. the assigaee lias a special property in them ; and, like bailees and others having such property, in bringing suit in respect to them, he may call them his property.'^ But in an action to enforce a contract made with the bankrupt, no title in the assignee will appear except by a statement of the facts which transfer to him the right to enforce it. And it must appear that the plaintiffs became assignees by virtue of the action of some court created by a sovereignty having territorial jurisdiction where the action is brought. Bankrupt proceedings under Federal law will, of course, be recognized in all the states ; but it is different with those of foreign countries. Thus, trustees of a bankrupt ap- pointed in the kingdom of Belgium are not permitted to sue in the state of New York.^ Inasmuch as assignees in insolvency derive their title from the act of the insolvent debtor, and not by operation of law, they, probsfbly, may be treated in the pleadings as assignees merely. It would seem that to allege the general assignment and its object would be pleading evidence, rather than a statement of the ultimate fact, which is the assignment. But both modes of making the statement are followed, and each would, doubtless, be sustained. The plaintiff is an assignee, and he is also a trustee.^ But when property — as, choses in action — comes into plaintiff's hands by operation of law, or as receiver by order of the court, much more is necessary. He is, it is true, only required to show his title, as in the other case ; but, in order to show it, he must set out the facts. To say, in such case, that the contract has been assigned to him, would not be true ; to say that he has been authorized to collect it, would state a con- clusion of law ; and ' ' the defendant can insist that the facts constituting the appointment [as receiver] , as set out, shall be sujfficient to show one has been made, and that these facts be so ^ Dambmann v. White, 48 Cal. 439. In this case, Crockett, J., after admitting a different rule in regard to executors and administrators, says: "But in proceedings in bankruptcy, the legal title vests in the assignee under the assignment. * * * As between him and a stranger, he holds the title, and may assert it in the same form of action as though he owned the fee." ' Mosselman v. Csen, 1 Hun, 647; and see Holmes v. Eemsen, 20 Johns. 259; Abraham v. Pleston, 3 Wend. 540. And assignees in insolvency appointed in Ohio take its assets in New York subject to the claims of attaching creditors. Willitts v. Waite, 25 N. Y. 577. 5 See note 4 to J 54, ante. 310 CH. XIV.] WHAT FACTS MUST BE STATED. § 264 set out as to be triable." ^ A complaint alleging that the plaintiff was duly appointed on such a day is not sufficient.* § 264. 3. In Actions by Executors and Administrators. — In actions by the personal representatives of a deceased person, it was formerly necessary to make profert of their letters.^ While profert is not now required, there is no change in the plaintiff's obligation to show his right to sue. His relation is called, in the old books, "privity of representation," and the subject would, properly enough, come under a former rule. It is assumed that the contract or transaction upon which the action is based was entered into, or occurred, before the death of decedent ; for, as was shown in treating of parties, the administrator will, ordi- narily, sue in his own name upon contracts made by himself, although in respect to the assets.* The deceased having been alone concerned in the transaction, the pleading should show at the start the right of the person who assumes to interfere in the matter, and it is not enough for the plaintiff to say that he is executor or is administrator, or that he has been duly appointed as such; but the court should be advised of the facts, that it may be seen whether he holds such a relation to the deceased. If letters testamentary, or of administration, have been granted him by a tiibunal known to have jurisdiction, these are facts which clothe the plaintiff with representative power, and should be directly stated.^ And in an action by an administrator de I Hand, J., in White v. Law, 7 Barb. 206. > Ibid. ; and see Gillett v. Pairchild, 4 Denio, 80 ; White v. Joy, 3 Kem. 83 ; Bangs V. Mcintosh, 23 Barb. 591. In Stewart v. Beebe, 28 Barb. 34, the action was by the receiver of the Bowery Bank, and the complaint showed that the plaintiff was re- ceiver of the bank; that he was appointed by the Supreme Court, by an order made upon a day named, upon filing security; and that the security had been filed. It was held that enough was stated to enable the defendant to take issue upon the legality of the appointment. A similar averment was held good on demurrer, though defective on motion, in Schrook v. City of Cleveland, 29 Ohio St. 499. » 1 Chitty's PI. 420. « Ante, I 53. 6 "The proper mode of pleading the fact [that one is administrator] is by a direct allegation that letters were granted. * * * Whether he was duly appointed or . not is a question of law. The defendant [ordinarily the plaintiff] should have stated how he was appointed, and then the court could determine its sufBciency upon de- 311 § 264 OF PLEADINGS. [PAET 11. bonis non it is held that the authority will not satisfactorily appear, and the liability in the particular case, unless the appointment of the original administrator is set out, and the negative aver- red — that the demand was not paid to him.^ Notwithstanding the plaintiff describes himself in the title as executor, as trustee, etc., yet the body of the ^pleading must show that he sues in murrer; or, if an issue to the country was joined upon the fact of having obtained letters, the question could be tried by a jury." Beach v. King, 17 "Wend. 197. If the ph\intiff allege that he is the executor, and that he has been duly and legally authorized to act as such executor, that defendants received the property, etc., which belonged to the deceased during his life-time, and that as such executor the plaintiff has demanded payment, the pleading is not demurrable. Welles v. "Webster, 9 How. Pr. 251. Nor is it demurrable if the plaintiff should describe himself as adminis- trator, etc., giving name of decedent, stating that he died intestate, and that the plaintiff was duly appointed. English v. Roche, 6 Ind. 62. In both these cases the allegations would be subject to criticism, on motion ; yet there is no absolute failure to show the plaintiff's authority. The correct doctrine is recognized in Missom-i, although the cases are not in harmony. In Duncan v. Duncan, 19 Mo. 368, it is held that a petition stating that the plaintiff sued as administratrix upon an indebtedness due her intestate is a sufficient statement of her right to sue. In The State v. Matson, 38 Mo. 489, the administrators de bonis non, as authorized by statute, had sued in the name of the state, to their use; but though named as such administrators, there was no allegation of their appointment. The court held that the petition was fatally defective in not stating the facts showing the appointment of the adminis- trators de bonis non, and reversed the judgment on error, although there had been no demurrer or motion below. It may be doubted whether the court did not go too far, even if the rules as to showing their appointment are the same as though thejr were the plaintiffs, inasmuch as the want of capacity is waived, if not objected to by demurrer or answer. In another more recent case (Bird v. Cotton, 57 Mo. 568) a demurrer to the petition because it did not show that letters testamentar\' had been granted, and by a court of competent jurisdiction, had been overruled beloAv, and the court sustained the ruling, "Wagner, J., saying : " The capacity in which the plaintiff sued was not as clearly stated as should have been. But the petition styled the plaintiffs as executors, stated that the note was made payable to their testator, averred bis death, and then brought their letters into court and offered to mal Callisher v. Bisohoffsheira, L. E. 5 Q. B. 449. ' Gould V. Armstrong, 2 Hall, 266. » Ehle V. Judson, 24 Wend. 97. « Lawrence v. Smith, 27 How. •■527. ^ Cabot V. Haskins, 3 Pick. 83. 6 Smith V. Bartholomew, 1 Mete. 276 ; Crosby v. 'Wooa, 2 Seld. 369. 1 Bispham's Eq., I 219. 317 § 273 OF PLEADINGS. [PART II. property for an illegal purpose — as, instruments for counterfeit- ing — he cannot be compelled to pay for it ; or if such property be seized, although without process, it cannot be recovered, for it is not entitled to the law's protection. There is some uncertainty in the application of the doctrine. Thus, where one furnishes another with the means of violating the law', knowing — intending — that it shall be used for that purpose, he participates in the wrong, and shjlU take nothing by his act ; but if he sells ordinary merchan- dise — as, furniture for a gambling-house, not the instrument of gambling — or if he performs ordinary labor — as, painting or papering a building which he knows will be used for gambling or other illegal purposes, not directly or indirectly participating in the unlawful business — the consideration is not illegal, and he may recover for the merchandise or labor.^ And so, if one enter into an illegal agreement which is not consummated, and advance money upon it — as, to a stake-holder in a horse-race — he may, before it is paid, relent and demand it back ;^ but not, if the money be paid over, for the act is consummate, and he is in pari delicto.^ In view of these distinctions, the pleader must exercise care that when the consideration of his contract may be really good, he do not so state it as to make it illegal, or vice versa. § 273. Considerations immoral, or against public Policy. — And the same rules hold where the consideration is immoral, or against public policy, as though it were criminal. There can be no recovery upon agreements so supported. Society cannot mark as criminal, and punish for its commission, every act which is rec- ognized as contrary to good morals or against the general policy of the law. But such act is none the less discouraged. Thus, an agreement to pay money or convey property in consideration of illicit intercourse will not be enforced, though it is held — yet disputed — that where a sealed instrument is given, not in consideration for future intimacy, but only to compensate for the past, the rule does not hold. An agreement to pay money to procure an executive pardon* is against public policy, and will not > Michael ». Bacon, 49 Mo. 474. ' Humphreys v. Magee, 13 Mo. 435 ; Skinner u. Henderson, 10 Mo. 205. » See Pothier on Obi. 45. * See note to p. 178, Smitli on Con., 5th Am. ed. 318 CH. XIV.] -VVHAT FACTS MUST BE STATED. § 272 be enforced ; ' nor Tvliere money is so paid can it be recovered back. But if the agreement be not consummated, but only ne- gotiations are entered into and money paid, while the bargain is not completed, such money can be recovered back.^ And so, if one advances money to enable another to create a ' ' corner ' ' in stock, he cannot recover back the money already expended, but may any balance unexpended.' Services rendered in procuring the passage of an act of legislation by means of secret attempts to secure votes, or sinister or personal influences upon members, are not a legal consideration for a contract.* An agreement to suppress a criminal prosecution is contrary to pubhc pohcy, and ■will not support a contract. § 274. Mr. Smith's Classiflcation. — "Mr. Smith, in his excel- lent work upon Contracts, in speaking of illegality of considera- tion, says that this " illegality is of two sorts : it exists at com- mon law, or is created by some statute; " ' and says that a con- tract is illegal at common law where it violates morality, or is opposed to public policy , or is tainted with fraud; and it is very well to treat all such matters as forbidden by law, although not the subject of a penal enactment. Under the first class he in- stances the publication of immoral and libelous books, quoting Best, who says : "I have no hesitation in declaring that no per- son who has contributed his assistance to the publication of such a work can recover, in a court of justice, ariy compensation for the labor so bestowed. The person who lends himself to the violation of the public laws and morals of the country shall not have the assistance of those laws to carry into execution such a purpose. It would be strange if a man could be fined and im- prisoned for doing that for which he could maintain an action at law. Every one who gives his aid to such a work, though as a servant, is responsible for the mischief of it." He also instances, as among contracts opposed to pubUc policy, those in general > Kribben v. Haycraft, 26 Mo. 396. ' Adams Express Co. v. Reno, 48 Mo. 264. » Sampson v. Shaw, 101 Mass. 145. ' Frost V. Belmont, 6 Allen, 152. » Smith on Con. 178. 319 § 275 OF PLEADINGS. L^'^^''' ^^• restraint of trade, and again quotes Best,* who says that "the law will not allow or permit any one to restrain a person from doing what his own interest and the public welfare requires that he should do. Any deed, therefore, by which a person binds him- self not to employ his talents, his industry, or his capital, in any useful undertaking in the kingdom, is void." This doctrine is qualified, however, by treating as valid contracts in partial re- straint of trade ; that is, an agreement not to carry on a trade in a particular place — as, in a sale of good-will, as it is called.^ So, contracts in restraint of marriage are void, as against public policy ; and contracts with alien enemies, and many others, might be enumerated, for which reference should be had to works upon contracts. So, fraud vitiates a contract — as, in the case of deceit and misrepresentation in the sale of property ; and, in general, if the consideration of a promise or agreement to pay money, or do any other act, be an agreement or a transaction which is thus illegal, as being contrary to a statute, immoral, forbidden by law, opposed to public policy, or fraudulent in its character, the con- sideration is vicious, and the promise or agreement cannot be en- forced. And it does not matter whether the action be upon a sim- ple contract, when, except as otherwise provided by statute, the consideration must be jjroved, and, therefore, appear in the peti- tion, or upon a deed, or a negotiable bill or note, as between the original parties, where the want of consideration must be shown by answer. § 275. A moral Consideration. — The classification of con- siderations by the civil law — i. e., the Do ut des, etc. — is sel- dom resorted to with us ; and we usually distinguish them as either, when there is a benefit resulting from the agreement to him who promises, or an injury to the other party ;' and, in this view, the consideration of an executory contract not under seal must be valuable, or in some way pecuniary, which includes mar- riage. A moral consideration — as, one founded upon previous benefits, where those benefits were merely voluntary, and could 1 Smith on Con. 181. « Post, I 279, and note. 3 1 Pars, on Con. 431. 320 en. XIA-.J -WHAT FACTS MUST BE STATED. § 276 not have been the subject of an action — will not support an agreement. "But still, if there was an original obligation which would have been bindiusj but for the intervention of a statute of which the obligor was at Uberty to avail himself or not, that obli- gation will support a new promise. This rule covers a promise to pay a debt contracted during infancy, or one barred by a discharge in bankruptcy, or by the statute of limitations, but will not reach a transaction original]}' void as never having created an obligation.^ In pleading, hoAvever, the original obligation only is set out in the petition, leaAang the infancy, etc., to be pleaded in bar ; and if it is so pleaded, the new promise is set up in the reply, and as based upon such original obligation as its consideration.^ § 276. Instances of sufficient Consideration. — A promise by one party is a good consideration for a promise by the other ; but in this case it must be obligatory, so that each party shall be bound. ^ Prevention of litigation is a consideration which will support an agreement to pay a sum of money, or perform some act accepted in settlement of the matter in dispute, although this does not apply to criminal prosecutions in which the pubhc, and not the prosecutor, is interested.* Forbearance to sue upon a valid, or even doubtful, claim will also support a promise.^ In im- plied contracts, the most common considerations are: work and labor, goods sold and delivered, money loaned, money paid for the use of, which must all appear to have been done at the defend- ant's request ; otherwise, there is no privity ; and, also, money received to the use of the plaintiff, and money due on an account stated. These considerations covered the old common counts, which, under the Hilary Eules, are embraced in one count. Under the Code, where facts only are stated, the promise, unless one was actually made, is not alleged, but the facts only from which it is implied ; " but none can be implied unless for a suffi- 1 See cases cited in notes to 1 Pars, on Con., 5th ed., 432-434. 2 Smith V. Eichmond, 19 Cal. 476 ; 1 Chitty's Pi. 581. ' 1 Para, on Con. 448, 449. * Ibid. 439, note g. ' Ibid. 440-444, and notes. Haight V. Child, 34 Barb. 186 ; Cahill v. Palmer, 17 Abb. Pr. 196 ; ante, I 152, and note 2. 321 § 277 OF PLEADINGS. [PAET II. cient consideration — as, if one charges for work and service for another, and that he agreed to pay him so much for it, the agree- ment is good as an express contract ; but if he simply charges for work and service performed for him at his request, the law im- plies that the parties understood he was to be paid what it was worth. But suppose the labor was volunteered — was done with- out the knowledge or request of the other party — will that sup- port an express agreement to pay for it? or does the law imply such agreement? Certainly, none is implied from the mere fact that the labor is performed, for one cannot thus create an indebt- edness ; and it is held that a subsequent express agreement to pay is not supported by such previous service.^ Hence, a request should always be alleged. It should, however, be remembered that this request cannot always be proved directly, but, like other ultimate or substantive facts, may be inferred from circum- stances, and a very strong one would be an acceptance of the fruits of the labor. ^ The question has been often raised whether a voluntary subscription, without any benefit resulting therefrom to the subscriber, is supported by a sufficient consideration ; and the decisions upon the question have not been uniform. It is, however, settled in Missouri that, in general, such subscriptions are good, especially when the object is a public one, and expense or labor has been had in consequence.' § 277. Why are executed Considerations insuflacient? — I have just alluded to the legal rule that a promise to pay for serv- ices previously performed without request is not obligatory, and this brings us to consider the principle upon which it can be so held. The consideration is the inducement to the promise — not as being the reason only why it is made, or that in regard to which it is made, but it is the moving cause, and it would have no exist- ence but for the promise — as, if it be another promise, it would not be made ; if money, it would not be paid ; if services, they would not be performed ; or, if property, it would not be con- ■ Frear v. Hardenburg, 5 Johns. 273, » 1 Pars, on Con. 446. ' Koch V. Lay, 38 Mo. 147 ; Workman v. Campbell, 46 Mo. 30-5 ; Pitt v. Gentle, 49 Mo. 74 ; 1 Pars, on Con. 453. 322 CH. XIV.] WHAT FACTS MUST BE STATED. § 278 veyed. If the promise, or the money, or the service, or the prop- erty had been before given, without any agreement, express or im- plied, to pay or to do in return — that is, if they were a donation, although with the hope even of a counter-donation — they do not induce or cause the promise, although it may be afterwards made in reference to them.' The books call it an executed considera- tion, which is not sufficieut to support an agreement. § 278. Contracts executed by the Statute of Uses. — I have hitherto had chiefly in view simple contracts, but though, in general, in framing a pleading, where the cause of action is based upon a deed, it is not necessary to plead the consideration, for the reason that a sealed instrument imports it ; yet this rule does not alwavs hold. Under the statute of uses a deed of bargain and sale, and a covenant to stand seized to uses, although rather contracts than conveyances, are held to vest the legal title in the bargainee and usee. Yet, as contracts, they must be valid — i. e., must be founded upon a sufficient consideration — or the statute will not operate upon them ; and for the reason that, by its terms, only those estates are transferred in which the legal title is held by a trustee for the use of another. The bargainor, in a deed of bargain and sale, if it has been executed for a valuable considera- tion, holds the property for the use of the bargainee ; and in such case the contract, before the statute of uses, could have been en- forced and a conveyance by enfeoffment and livery secured, or the bargainor would have been decreed to hold the land for such use. But if there was no such consideration, there was no such use. And so with a covenant to stand seized to uses. It does not purport to be a conveyance, but is in the form of a contract to provide for those to whom the covenantor is under obligation — as, his wife and children. This obhgation is a good and sufficient consideration for such a covenant, though not a valuable one, and 1 So imperative is the rule that the agreement must spring from the consideration, as an inducement to it, that the civilians and continental writers use the term causa (cause) instead of "consideration," and as distinguished from "motive." Thus: "Every contract should have a just cause." "When the cause for vifhich the engage- ment is contracted is repugnant to justice, etc., the engagement and the contract con- taining it are null." 1 Pothier on Obi., 3d Am. ed., 123. 323 § 279 OF PLEADINGS. [PART II. will support the deed ; hence the covenantor holds the property for the use of those for whom he agrees to stand seized ; but without the obligation or consideration there would be no such use.^ In each case the use — which would not exist if the contract was not validated by the proper consideration — when so created, is exe- cuted by the statute of uses, and the legal title vests in the cestui que use.^ Hence, in alleging title through such instruments, it must appear that the use was created in order to know whether the title vests ; and, to make it appear, the consideration should be shown.* § 279. Contracts in Restraint of Trade. — Contracts in gen- eral restraint of trade are invalid, yet one may obligate himself, for a valuable consideration, not to follow his occupation at a particular place, or for a particular time, or with reference to particular customers.* This is called a contract in partial restraint of trade, and, though made by deed, it must be founded on a consideration;* and, as such contracts are not encouraged, the consideration must be pleaded.^ The obligation, in such case, to show the consideration would be more imperative under the Code, inasmuch as it is one of the facts necessary to the cause of action.'' 1 2 Washb. on Real Prop., 3d ed., 392. = Ibid. ' 1 Chitty's PL 366, 367 ; 2 Hid., 577, note I. See Poe v. Domec, 48 Mo. 441. * Smith on Con., 182 et seq. » Ibid., 15, 189-191. • 1 Chitty's PI. 367. ' In common-law pleading, the omission to set out the consideration in deeds exe- cuted hy the statute of uses, and in deeds in restraint of trade, could only be taken advantage of by special demurrer. 1 Chitty's PI. 367, and cases referred to in notes b and c. The defect cannot be reached upon demurrer in code pleading, unless for the reason that the petition does not state facts sufficient to constitute a cause of action. This is like the old general demurrer, and it would seem that in all those cases where it is necessary to plead and prove consideration, if it be not stated in the petition, there is an omission of a material averment, which should be reached by demurrer. The petition leaves out a fact necessary to the cause of action. Mr. Chitty says that an averment that defendant covenanted " for the consideration therein mentioned," is good on general demurrer; but, unless the covenant is made part of the record, the court is not advised as to its sufficiency. The least a court could do, under the Code, would be to order the pleading to be made more definite. The whole subject of Consideration is rather in the domain of contracts than of pleadings, and to the numerous works upon the subject the reader is referred. 324 CH. XIV.] WHAT FACTS MUST BE STATED. § 281 RULE VI. In seeking Relief other than by a Judgment for Money or for specific Property, the Pleading should show that such Judgment cannot be obtained, or that it will not afford adequate Relief. § 280. Am old Kule in new Words. — The relief which a court may give other than by a money judgment, or by one for the delivery of property, was formerly afforded only by a court of equity, and resort could not be had to that court when the ordinary or legal remedy would suffice. A bill in chancery was demurrable for want of equity — that is, because it did not show sufficient ground for the interference of a court of equity, and one of these grounds was that there was an adequate remedy at law. In a few of the code states, as we have seen, the distinc- tion between legal and equitable actions is preserved in terms ; and in all a distinction between actions for the enforcement of legal and equitable rights is seen in the provision in regard to the differing modes of trying issues of fact. General language could not be used wliich would more clearly mark the distinction ; hence the terms " legal " and " equitable " actions are in constant use, although improperly so, inasmuch as there is but one form of action. But the rights and remedies so differ as to make it diffi- cult to drop the old terms ; at least, to do so would be incon- venient, as involving long descriptive phrases. § 281. Application of tlie Rule. — It is said that there are rights which the common-law courts either will not recognize or cannot adequately protect, and thus we have the jurisdiction of courts of equity ; and all that the rule means is that, in seeking equitable relief, in addition to the plaintiff's rights, one of these grounds must appear. Ordinarily, the statement of the cause of action with the relief sought will, of itself, cause it to appear, and without any special showing as to the inadequacy of the legal rem- edy — as, in a petition for specific performance, or for correcting a mistake in a writing, or for enforcing a lien or a trust. The inade- quacy of an ordinary judgment will appear from a statement of the claim — that is, a money judgment could not be obtained at all, or only as incident to the equitable relief, or, if obtainable, it would not be all the plaintiff has a right to demand. One, for instance, has an equitable title, either by a contract for the con- 325 § 282 OF PLEADINGS. [PAET 11. veyance of property, or as cestui que trust; Lie might, perhaps, obtain full damages for breach of the contract, or for violation of the trust, but the law gives him a right to the property itself, and the court will convert the equitable into a legal estate, or compel the specific administration of the trust, without reference to any damages he might obtain. But some equitable remedies are only afforded when the debt or damages cannot be collected, or when they will not suffice. Thus, after all legal remedies are exhausted, a creditor's bill will lie for the collection of a debt, and the petition must show the insufficiency of such remedies ; ^ and in an application for an injunction to prevent a trespass, it will be re- fused unless shown to be threatened under such peculiar circum- stances that an action for damages will not afi'ord an adequate remedy — as, that the damage will be irreparable, or that the tres- passer is irresponsible.^ And if one asks for the specific perform- ance of a verbal contract for the sale of land upon the ground of part performance, if it be only the payment of money upon the contract, relief will be denied, because the money can be recov- ered back. Possession must be shown' under which improve- ments are supposed to have been made. MULE VII. When they are material, Time and Place must be stated, and truly. § 282. As to Time. — It would be difficult to describe a con- tract or an event without saying when it was entered into, or happened. Time enters into all our conceptions of definite de- scription, and when it is not given, the pleading would probably be held defective on motion to make it more definite.* But it is not this want of certainty which I now propose to consider, but rather those cases where a particular time is material to a cause of action, aijd where its omission would render a pleading de- J Bispham's Eq., ?§ 525-527. ' Ibid., §2 435, 436. A simple allegation that the damage would he irrepara- hle is not sufficient. The facts should be stated showing the character of the damage. ' Ibid., 2 385. If the vendor is insolvent, so that a purchaser who has not gone into possession, but has paid for the land, has no effectual legal remedy, should he for that reason be entitled to a specific performance ? * See remarks of Marvin, J., in The People v. Eyder, 12 N. T, 433. 326 CH. XIV. J WHAT FACTS MUST BE STATED. § 284 murrable, or when a variance between the time stated and that proved would be fatal. § 283. When Is Time material ? — As to the obligor or prom- isor in ordinary contracts, or the maker of a promissory note or acceptor of a bill of exchange, in considering their liability, time seldom becomes a material question, and truthfulness in stating it is not required. But if one seeks to charge the drawer of a bill, or the indorser of a bill or of a note, it becomes material to show, not only the demand and notice, but the precise day when made and given. I say the precise day — I mean that both the allegation and the evidence must show the demand and notice to have been upon such a day as will charge the defendant. Thus, if the pleading should state that the notice was given upon the day when the demand was made, and it should appear that it was not mailed until the next day, or vice versa, both the pleading aiid the evidence showing a notice in due time, the vari- ance would be immaterial. And in proceedings to enforce a forfeiture, the exact time of the happening of the event, or of the doing or failure to do the act upon which the forfeiture depends, is often material, and when so, should be stated truly. Time may also be a matter of description — as, when a bond or other paper is described as bearing a certain date, the date should be correctly given ; otherwise, it is not the same paper. § 284. Thie Rule as applied to Place. — lam not speaking of the obsolete venue. At common law it was necessary to al- leo-e a place in reference to every traversable fact, and that place, wherever the fact occurred, was always charged as being within the county where the cause was to be tried. The obligation under the Code to state the facts of itself forbids a fictitious venue, and, unless the place is material, it does not become one of the facts which constitute the cause of action. ^ But actions are still divided into local and transitory, and as to the former, the issues must be tried in the county where the cause of action arose. 1 The Missouri Code expressly relieves the pleader from the necessity of stating the venue in the body of the petition, or in any subsequent pleading ("Wag. Stat. 1018, § 28) ; but this is only making certain that the old rule is no longer in force. This practice was adopted in England in 1853, by the following rule : " The name of a 327 § 285 OF PLEADINGS. [PAET II. The statutes of the several states provide for the classes of actions which require such trial, and they generally are made to couform to local actions at common law. Thus, actions in re- gard to real property, that may affect its title or possession, are triable in the county where it is situate, and the pleading must show that the property lies in the comity, which fact would, ordi- narily, appear from its description ; and actions against local oflEicers for breach of official duty are usually local. § 285. Statutory Provision in Regard to Actions affecting the Realty. — The late Code of New York, and the codes of North Carolina, South Carolina, Florida, Wisconsin, and Minne- sota, provide that trials shall be had in the county where the prop- erty is situated in actions " ( 1 ) for the recovery of real property, or of any estate or interest therein, or for the determination of any form of such right or interest, and for injuries to real prop- erty ; (2) for the partition of real property ; (3) for the foreclos- ure of a mortgage of real property; (4) for the recovery of personal property distrained for any cause. ^ The codes of Cali- fornia and Indiana omit the fourth class. ^ The Ohio and Nebraska codes classify actions thus made local, as follows ; " (1) For the recovery of real property, or of an estate or interest therein ; (2) for the partition of real property; (3) for the sale of real property under a mortgage lien, or other incumbrance or charge." The Kansas Code adds to the first class the words " or for the county shall, in all cases, be stated in the margin of a declaration, and shall he taken to be the venue intended by the plaintiff; and no venue shall be stated in the body of the declaration, or in any subsequent pleading, provided, that in cases where local description is now required such local description shall be given.'' 1 Code Proc. N. Y., ^ 123; Code Civ. Proc. K C, J 66; Code Proc. S. C, ? 146; Code Civ Proc. Pla., ? 74; Rev. Stat. Wis., ch. 123, g 1 ; Code Proc. Minn., § 42. The Code of Civil Procedure of New Yorlc of 1876 (§ 982), conforms substantially to the old, although the actions required to be local are somewhat extended, and are specifically named, adding, however, a clause to cover the case of Newton v. Bronson, 13 N. Y. 587. An action will lie in New York for the specific performance of a contract for the sale of land lying beyond the state, when the parties live in the state. The stat- ute provides for a local trial only when the land lies in some county in the state ; otherwise, the old equity rule prevails. Newton v. Bronson, supra, 587. But this action must, ordinarily, be brought in the county where the land lies.' Newton v. Bronson, supra; Ring v. McCoun, 10 N. Y. 268. » Code Civ. Proc. Cal. 1874, ^ 392 ; Code Civ. Proc. Ind., I 281. 328 CH, XIV.] WHAT FACTS MUST BE STATED. § 286- determination in any form of any such right or interest." ^ The Kentucky and Arkansas codes add to the classes contained in that of Ohio, class " 4, for an injury to real property." ^ The Iowa statute leaves out the third and fourth classes of actions contained in that of New York, and provides, further, that actions for inju- ries to real property may be brought either in the county where the property lies or where the defendant resides ; and that an ac- tion for the foreclosure of a mortgage on real property, or for the sale of real property under an incumbrance or charge, or to en- force a mechanic's lien on real property, may be brought in the county in -(vhich the property to be affected, or some part thereof, is situated.^ The Oregon statute leaves out islasses "2" and "3" contained in that of New York.* By the Missouri act, " suits commenced by attachment against the property of a per- son shall be brought in the county in which such property may be found;" and "suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county in which such property may be found." * § 286. Same in Reg-ard to otlier Actions. — The late New York Code provided for local trials, when the cause of action had arisen in actions " ( 1 ) for the recovery of a penalty or forfeiture imposed by statute, except that when it is imposed for an offense committed on a lake, river, or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed; (2) against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command or in his aid, shall do anything touching the duties of such officer."^ This New York statute wiis copied in 1 Code Civ. Proc. Ohio, ? 45 ; Code Civ. Proc. Neb., 2 51 ; Code Civ. Proc. Kan., g46. 2 Bullitt's Code Ky., | 62; Dig. Arix. 1874, J 4532. 3 Code 1873, ^§ 2576-2578. * Code Civ. Proc., § 41. ' Wag. Stat. 1005, §? 2, 3. « Code Proc. N. Y., ? 124. The Code of 1876 (? 983) adds, as a third class, actions ""to recover a chattel distrained, or damages for distraining a chattel." When an offi- 329 § 287 OF PLEADINGS. [PAET 11. Indiana,' in California,^ in Wisconsin,' m North Carolina,* in South Carolina,^ in Florida," in Oregon,' and in Minnesota.* The Iowa statute is substantially like that of New York, adding " an action upon the official bond of a public officer."' The Ohio, Kansas, and Nebraska statutes omit, in the second specification, all persons except the officer himself, though, otherwise, they are like that of lowa.^" § 287. Contracts — When enforced according to foreign Law. — Questions concerning the validity and construction of a contract are governed by the law of the place where it was made ; and in an action upon an agreement which is invalid by the law of the forum, but valid where made, or vice versa, the place, as well as the foreign law, become material, and both must be pleaded." The question would more frequently be raised in an answer or reply — as, if one is sued upon a contract made in a state where usury would invalidate it, the fact that it was made cer does what his office gives him no right to do, he is not within this provision ; hut for an act within his authority, but improperly performed, he is entitled to the benefit of the statute. Brown c;. Smith, 2i Barb. 419. But he must make the objection at the trial, or his right is waived. Howland v. "Willets, 5 Sandf. 219. 1 Code Civ. Proc, § 29. ■■i Code Civ. Proc. 1874, J 393. ■■ Rev. Stat., ch. 123, g 2. • Code Civ. Proc, ? 67, » Code Proc, § 147. 6 Code Civ. Proc, J 75. ' Code Civ. Proc, \ 42. » Code Proc, § 43. 9 Code 1873, § 2579. 10 Code Civ. Proc. Ohio, ? 47 ; Code Civ. Proc. Kan., ? 48 ; Code Civ. Proc. Neb., 2 54. In Kentucky (Bullitt's Code, § 63) and Arkansas (Dig. 1874, | 4533) the provision applies to an action (1) for the recovery of a fine, penalty, or forfeiture imposed by a statute, but if the offense for which the claim is made be committed on a water-course, or road which is the boundary of two counties, the action may be brought in either of them; (2) against a public officer for an act done by him in virtue or under color of his office, or for a neglect of an official duty ; (3) upon the official bond of a public officer. 1' In Thatcher v. Morris, 1 Kern. 437, a lottery contract, valid in Maryland, where made, was sought to be enforced in New York. The court, per Allen, J., says : " The question of where made, if material to give validity to the contract, or to aid in its construction, is for the jury upon the evidence, and, like every other fact, should be averred in the pleading, that the judgment may be in accordance with the allega- tions as well as the proofs of the parties." 330 en. XIV. j WHAT PACTS MUST BE STATED. § 287 in such a state, and was usurious, and the local law may be set up as a defense ; or, if coverture were pleaded, the reply might show the place where the agreement was entered into, and its validity at that place. In these cases the place must be truly stated, or, at least, it must be so true as to make the petition, or the answer, or the reply a good one. As, if one suing upon a promissory note, in a state whose laws forbid the recovery of more than six per cent interest, seeks to recover a higher rate, he must show that the note was made at some place in the state the aid of whose laws he invokes ; but further accuracy than that, unless it becomes material as matter of description, I do not suppose is required. Thus, if, in suing in Missouri, one would invoke the aid of the laws of New York, and should state that the note was made at Buffalo, in that state, it would be an immaterial variance if it should appear in evidence to have been made at Albany, especially as the codes provide that the court shall dis- regard errors that shall not affect the substantial rights of the opposite party. Also, in a foreign contract, where one party claims a construction of the contract by the laws in force where it was made, differing from that which would prevail by the law of the forum, he must plead the place and the foreign law.^ ' And, upon the same principle, when certain facts create a liability by the laws of the forum, but not by the common law — as, by a statute giving the families of per- sons killed by negligence an action against a carrier, the pleading must show that the injury occurred within the state where the statute is in force. Beach v. The Bay State Steamboat Co., 30 Barb. 433. 331 § 2«8 OF PLEADINGS. [part II. CHAPTER XV. Op the Statement, continued. 3. As to the manner of stating Facts. RULE I. The Statement must not he double or multifarious. Section 288. Duplicity in Common-law Pleadings. 289. Multifariousness in Equity. 290. The Rule under the Code. 291. The View in Wisconsin. 292. Same in New York. 293. The View in other Courts. 294. Certain Rules concerning Duplicity. 295. But one Statement is allowed of one Cause of Action. RULE II. Facts should be stated with certainty. Section 296. Certainty as to Time and Place. 297. Property should be described with certainty. 298. The common Counts. 299. Continued — The Count for Goods sold. 300. Certainty in pleading Estates. 301. Statutory Exceptions — 1. Conditions precedent 302. Scope of the Provision. 803. Statutory Exceptions — 2. Pleading Judgments. 804. Statutory Exceptions — 3. Pleading private Statutes. 805. Statutory Exceptions — 4. In Libel or Slander. 306. Statutory Exceptions • — 5. Pleading by Copy. 807. This Exception applies only to the Statement that "there is due him." 308. Other Exceptions — 1. In pleading Consideration. 309. 2. " No greater Particularity is required than the Nature of the Thing pleaded will conveniently admit." 810. 3. "Less Particularity is required where the Pacts lie more within the Knowledge of the opposite Party." 311. 4. "Less Particularity is required in pleading Matter of Inducement." 812. Sufficient to plead as before the Statute of Frauds. RULE III. Every Statem-ent of a Fact should be direct and positive. Beotion 313. Scope of the Rule. 314. Ambiguity— Its Effect 332 CH. XV. j AS TO THE MANNER OF STATING FACTS. § 288 Section 315. Repugnancy — Negatives pregnant. 316. Argumentative Pleading. 317. Hypotlietical Pleading. 318. Recitals of Facts. RULE IV. Facts should be stated in plain, ordinary, and concise Language. Section 319. The old Pormulas abolished. SULE I. The Statement must not he double or multifarious. §288. Duplicity in tlie Common-law Declaration. — The reports show but few cases in which the rule tigainst duplicity in the declaration has been considered, although in regard to pleas and replications the subject has been frequently before the courts. Mr. Stephen, in speaking of duplicity in the declara- tion, says that " the declaration must not, in support of a single demand, allege several distinct matters, by any of which that demand is suiEciently supported."^ To the same effect is Mr. Chitty's definition.^ This vice, both in the declaration and in subsequent pleadings, was treated as a fault in form merely, and could only be brought to the notice of the court by special de- murrer.' An early case is found* where the plaintiff, in one count, charged the defendant with hiring a iiorse and overriding and injuring him, so as to render him of little value, and also with refusing to deliver him up on demand, and with converting him to his own use. Upon this there had been a plea of not guilty, and a verdict for plaintiff. A motion in arrest because of the misjoinder was overruled, the court admitting that the de- fendant might have demurred for the doubleness of the declara- tion. The rule against duplicity seldom operated to deprive a party of the right to avail himself of each of his grounds of action, for the reason that, ordinarily, they could be united in one declaration by different counts — that is, if each ground sounded 1 Stephen's PI. [* 251]. 2 1 Chitty's PI. 226. See, also, Gould's PL, ch. 4, ? 99. ' 1 Chitty's PI. 228 ; Stewardson v. White, 3 Har. & McH. 455, and all the authori- ties. ■* AVhyte v. Rysden, Cro. Car. 20; referred to in Bac. Abr., title "Actions in Gen- eral," e, and in Gould's PI., ch. 4, | 99. 333 § 289 OF PLEADINGS. [PAET II. in tort, or if all could be made, bj the aid of the fictitious promise, to sound in contract. § 289. Multifariousness in Equity. — The distinction between multifariousness in equity and duplicity in common-law plead- ings arose from the fact that in equity there was but one state- ment ; different counts or statements of facts, as constituting different causes of action in the same pleading, were unknown, and what was multifarious would be, under the Code, a misjoinder, which is explained in the next section. Multifariousness was the term applied to an improper joinder of causes of action in one bill — a union of matters that could not be prosecuted together, however stated. A count in a declaration was called double if more than one ground was shown for the judgment ; but if more than one ground for the relief which is sought appears in a bill, it is not, for that reason, multifarious. Says Story .-^ "By multifariousness is meant the improperly joining in one bill dis- tinct and independent matters, and thereby confoundifig them — as, for example, the uniting in one bill of several matters per- fectly distinct and unconnected against one defendant; or the demand of several matters of a distinct and independent nature against several defendants , in the same bill . ' ' The first class of the causes of action whose union in one complaint is authorized by most of the codes, to wit, causes arising out of the same trans- action, or transactions connected with the same subject of ac- tion, covers causes of action whose union is authorized by the equity practice ; and such causes, if between the same parties, were never considered to be " distinct and independent matters," the chief difference between the equity and code practice, as regards the union, consisting in the fact that in the former there is but one statement or- count, and in the latter as many state- ments as there are causes of action. All causes of action, if there are more than one, that can be united are properly embodied in one bill, without formal division into two or more statements or counts, although each ground for relief is made to appear, and I story's Eq. PI., J 271. 334 CH. x^^J AS TO the manner of stating facts. § 291 with more particularity than in common-law pleadings. An ob- jection to the bill on the ground of duplicity, as defined in the last section, will not lie ; for if the two or more grounds for re- lief are properly united in the action, they require no formal sep- aration into independent counts. § 290. The Kule under the Code. — In view of the require- ment that each cause of action embraced in a petition should be stated separately, and of the fact that the rule in common-law pleading was aimed rather at the form than the substance of the pleading, I would define "duplicity" — or, " doubleness " in pleading, as the term should now be used — to be a union in one statement of matters constituting two or more causes of action, either to support a single right of recovery — as, in dujolicity at common law — or distinct recoveries based upon each cause of action. And the pleading is equally double whether the state- ment contain causes of action that might have been properly united if separately stated, or causes the union of which is alto- gether forbidden, the latter being also a misjoinder, and made one of the grounds of demurrer. The term " multifariousness," synonymous with "misjoinder" under the Code, is still used, and is convenient as at once calling to mind the equity practice, and thus enabling us to better understand the equity rule as em- bodied in the Code. The statutory term "misjoinder" applies to such unions as are altogether forbidden, whether improperly intermino-led in one statement or separately stated, or whether in actions formerly called legal or equitable ; and the term " du- plicity," though not a statutory one,^ is sufiicient to indicate the informality of the union, the former term going to the fact of the union, and the latter to the improper intermingling in one state- ment. The distinction between the terms should be carefully preserved, as founded in fact, and as of convenient application ; and yet the judicial mind seems not always to have been im- pressed with the distinction, or with the doctrine that doubleness of statement, merely, is but a defect of form. § 291. The View in Wisconsin. — In a case in Wisconsin the 1 It is used in the Missouri statutes, "Wag. Stat. 1018, J 21. 335 § 292 or PLEADINGS. [part ir. complaint embraced in one statement matters sounding in tort, in contract, and of an equitable nature. A general demurrer was filed, which was sustained in the Supreme Court, not because of the misjoinder, for that ground of demurrer was not given, but because the court, having decided that the complaint should be treated as having intended to state a cause of action in tort, held it to be defective in consequence of having omitted allegations necessary to constitute a cause of action of that class.* The sum- mons in Wisconsin, as in New York, is required to show whether the demand be for money only, or for other relief ; and the fact that in this case the summons asked for relief, and not for money, seemed to control the court in deciding as to the character of the action. The opinion does not clearly show whether, had two or more grounds for recovery been sufficiently stated, although im- properly combined, the vice would have been anything more than doubleness, to be remedied by demurrer, had there been a mis- joinder as well, or by motion, had the objection been to the du- plicity only. But the whole spirit of the opinion makes the error a radical one. The court seems to ignore the vice of misjoinder or duplicity, and the fact that the pleading would have been vahd unless the objection to it had been appropriately made, and for that reason ; but the opinion seems to assume that the complaint could contain only grounds of action belonging to one or the other class. In aii action for specific performance of a parol contract for the sale of land, it was held by the same court that the plaintiff", failing to establish his equity, could not recover for the money he had paid upon the contract.^ § 292. Same in Kew York. — Although upon some questions 1 Supervisors v. Decker, 30 Wis. 624. Dixon, C. J., among other things, says: •" These distinctions continuing, * * * can any one complaint or cause be made to subserve the purposes of two or more distinct and dissimilar causes of action at the option of the party presenting it? It cannot be 'iish, flesh, or fowl,' according to the appetite of tlie attorney presenting the dish set before the court. If counsel disagree as to the nature of the action or purpose of the pleading, it is the province of the court to settle the dispute. It is a question, when properly raised, which cannot be left in doubt; and the court must determine with precision and certainty, upon in- spection of the pleading, to what class of actions it belongs or was intended, whether ^f tort, upon contract, or in equity." ^ Horn 0. Ludington, 32 Wis. 7c!. See, ante, J 162. 336 CH. XV.J AS TO THE MANNER OF STATING FACTS. § 292 the Supreme Court of Wisconsin and the New York Court of Appeals, in their construction of the Code, are not in harmony, yet upon this matter they seem to take the same, or a similar, view. From one or two cases in the latter court it would almost seem that it had lost sight of the fact that a pleading can be double, or, rather, that a single statement can contain facts showing a cause of action, arising from tort, combined with others showing a contract, and where only one relief is sought. If the statute is to be followed, it would seem that when such a union is had, either informally — as, where the error consists merely in neglecting to make separate statements — or where there is an actual misjoinder of causes of action, and no objection is made by motion in the one case, and by demurrer for misjoinder in the other, the objection to the union is waived ; and if the plaintiff shows himself entitled to relief upon either ground, it should be given him. But it is held, or seems to be held, by that court that, in such case, the court should, upon the trial, inspect the complaint, look at its general scope, and, if the two causes of action are thus combined, decide which cause is made most prominent in the pleading, should treat the pleading as containing only the one cause or ground of action, and, as a consequence, if the plaintiff fail in that, turn him out of court, although he may have fully established his demand as based upon the other ground.^ I have said it seems to be so held, but the • In Eoss V. Mather, 51 N. Y. 108, the.plamtiflf charged warranty and fraud in the sale of a horse ; alleged that the defendant warranted, and falsely and fraudulently - represented, that a certain lameness resulted from an injury to his foot ; that it was in his foot, and nowhere else, etc. ; and that the plaintiff, relying upon this warranty and representation, purchased, etc., the pleading stating the real disease, and the knowl- edge thereof by the defendant. Hunt, of the Commission of Appeals, says: "The complaint contains all the elements of a complaint for fraud. It must be held to be such unless the distinction between the two forms of action is at an end. While it contains all that is necessary to authorize a recovery upon contract, it contains much more. These additional allegations are so important, and are stated in a manner so logical and orderly, that they determine the character of the action. * * * That there was a warranty as well as representations, or that both are alleged to have existed, does not alter the case. Fraud may be based upon warranty or upon repre- sentations, or upon both together, etc." And the opinion goes on to show that the pleading, on the whole, is for the fraud, and when so, that there should be no recov- ery for the contract. Lott, Ch. Cmr., dissented, citing Williamson v. Allison, 2 East, 446, etc. Eoss v, Mather was affirmed in Dudley v. Scranton, 57 N. T. 424; and to tha 337 23 § 292 OF PLEADINGS. [PAKT II, court may not have intended to so treat double averments as to imply that there can be no union in one statement of two or more grounds of action, upon either of which the plaintiff may recover, but only to recognize the common-law doctrine that, in o;rder to constitute duplicity, it must appear that more than one of the causes of action were reUed on as distinct grounds of recovery ; hence, if the pleading contains a statement of facts showing that the plaintiff has another cause for his action, but alleged by way of strengthening his case, or as showing matter same effect are Moore v. Noble, 53 Barb. 425, and Peck v. Eoot, 12 N". T. Superior Ct. 547. See, also, Ledwich v. McKim, 53 N. Y. 307. It is readily seen that where the pleader stated one ground or cause of action, accompanied by loose phrases or allegations, looking towards, but which do not, in fact, state, another cause, such phrases or allegations furnish no foundation for the introduction of evidence ; but where two grounds for the recovery, or two causes of action, are, in fact, stated, although in one statement, and neither the misjoinder, if there be one, nor the im- proper intermingling in the statement is objected to before the trial, the plaintiff should be entitled to judgment if he sustain either. The reasoning of the commis- sion in Koss V. Mather is forcible ; it is true that the same words may constitute a contract and be a false representation, but the pleader did not give the words ; on the other hand, he stated the acts of defendant according to their legal effect. The pleading shows, first, that the defendant warranted — that is, entered into a contract — that the animal was so and so, etc. ; and, second, that he fraudulently represented — that is, told the plaintiff that he was so and so, etc. — which may not be a contract, but may be a fraud. Though the allegations of warranty and of representation are alle- gations of fact, yet they show only the inferential, the ultimate, facts, and not the probative facts, or what actually occurred. The words used have a definite legal meaning ; if the plaintiff relied upon the fraud alone, he should have charged only the false representation, scienter, etc. ; and the proof of a contract known by the seller to be false, and which actually deceived the plaintiff, would establish the charge. But the supposed contract was not only a representation, but it was more — it was a warranty as well, and was so charged in the complaint. The court could not have in- tended to say that because a contract of warranty may so deceive, as to amount to fraud, it is, therefore, no contract. If it be a contract, and is so charged in the plead- ing, although combined with statements which also make a charge of fraud, it should be considered and treated as a duplicity merely. The New York decisions seem to be colored, though not controlled, by a provision in its Code of Procedure (J 129) re- quiring the plaintiff to insert in the summons a notice, first, in an action upon con- tract for the recovery of money only, that he will take judgment for the sum speci- fied if the defendant fail to answer in twenty days ; second, in other actions that, in such case, he will apply to the court for relief. Hence, in deciding whether a given complaint be for a breach of contract or for a tort, the courts aid their conclusions by noting whether the summons be one for money or for relief. They sometimes, how- ever, treat a summons for relief, with charges of fraud in the complaint, as not incon- sistent with a demand for money only, but as available to authorize an order of arrest under the statute. Graves v. Waite, 59 N. Y. 156. 338 CH. XV. J AS TO THE MANNER OP STATING PACTS. § 293 of inducement or aggravation, it does not make his pleading double, when it is apparent that he does not rest his claim to recover upon it.^ In a previous case '■' the same court had disap- proved the action of a referee who had nonsuited the plaintiff because his evidence showed a liability upon contract, while the complaint used language appropriate to torts, and held that if there was enough in it to show the contract and its breach, he should have judgment, notwithstanding the general color of the statement.' § 293. The View in other Courts. — In a case in California* the statement based the plaintiff's right to recover upon two grounds : first, that he had paid the defendant money by mistake ; and, second, that the defendant had warranted the genuineness of the indorsement of a note for which it had been paid. There had been no demurrer or motion below, and, upon error, the complaint was sustained. "Either," says the court, "would constitute a good cause of action; and it does not make their complaint insufficient because they have two grounds of recovery instead of one." The statement was double ; but that, being but 1 Kaymond v. Sturges, 23 Conn. 134 ; Stephen's PI. [* 262]. Tor the same view as to pleas, see Lord v. Tyler, 14 Pick. 156. 2 Conaughty v. Nichols, 42 N. T. 83. ' The spirit of the opinion in Conaughty v. Nichols essentially differs from that of Ross V. Mather. After reviewing the cases, and quoting the liberal provisions of the Code the following language Is used by Ingals, J.: "It is quite probable that the plaintiff intended, down to the trial, to recover against the defendant for a wrongful con- version of the proceeds of the property consigned to them ; and, doubtless, the mistake would have been fatal but for the ample statement of facta contained in the complaint, which iustifled a recovery on contract for the amount of his demand. It does not fol- low that because the parties go down to the trial upon a particular theory, which is not supported by the proof, the case is to be dismissed, when there are facts alleged in the complaint, and sustained by the evidence, sufficient to justify a recovery upon a different theory or form of action. There is no substantial reason why, under such circumstances, a party should be turned out of court, and be compelled to commence a new action, thereby occasioning expense, delay, and multiplicity of suits to accom- plish a just result." Nothing is said about the doubleness of the pleading, inasmuch as no objection had been raised to it upon this ground, but, from the indications, the statement roust have contained more than one ground of action, and was thus open to that objection of form; but if the parties went to trial upon it unreformed, the plaint- iff was -properly allowed to recover, if the evidence was sufficient to sustain either ground. * Mills V. Barney, 22 Cal. 240. 339 § 293 OF PLEADINGS. [PAET II. an error of form, could have been no ground for reversal. In a previous case^ the plaintiff had been a passenger on board the .ship, and brought her action for a breach of the contract made with her, by carrying her beyond her destination, and also for fraud, in inducing her to buy a ticket to a port where there was no intention to stop. Objection was made, at the trial, to any evidence of the fraud, as the action was chiefly based upon the contract ; but the objection was overruled and the plaintiff recov- ered judgment, not only for the direct damages arising from the refusal to land her at the proper port, but also for the conse- quential damages which grew out of the fraud and deception. The action of the trial court was sustained, and, notwithstanding the California Code omits class " 1 " of the causes of action that may be united in one complaint, the court held the union to be proper, for the reason that both the fraud and the contract were but parts of the same transaction, or were connected with it.' No objection had been made to the manner of uniting the two causes of action ; it was a clear case of double pleading under the Code, but that question could not have been raised after pleading to the merits, and was not raised in this case. In Ken- tucky a plaintiff had charged the defendant with breaking his close, and assaulting and beating him, and obtained a general verdict. The evidence sustained only the beating, sind the fact was recognized in the appellate court that the plaintiff had im- properly united in one statement two causes of action ; but the objection was treated as a formal one, which had been waived by ' Jones V. Steamship Cortes, 17 Cal. 487. ' The spirit of this opinion conforms to that in Conaughty v. Nichols, supra, while it essentially diflFers from the views of the courts in Eoss v. Mather and in Supervisors V. Decker. "The statute," says Cope, J., in which Field, J., concurs, "makes no dis- tinction, in matters of form, hetween actions on contract and those of tort ; and relief is administered without reference to the technical and artificial rules of the common law upon this subject. Different causes of action may be united in the same com- plaint, and the only restrictions upon the pleader, in this respect, are those imposed by the statute. * * * The provisions for avoiding a multiplicity of suits are to be literally and beneficially construed, and we see no reason why all matters arising from, and constituting part of, the same transaction should not be litigated and determined in the same action," etc. The whole opinion is interesting, the court holding that the same union could be had as though the statute contained the class "1" of the New York Code of Pracedi'r* then in force. 340 CH. XV.J AS TO THE MANNER OF STATING FACTS. § 295 pleading to the merits. The court held the verdict to be good, and that it would have been good if either cause of action had been proved.* § 294. Certain Rules concerning Duplicity. — Mr. Stephen gives the following subordinate rules, to wit: "1. Matter may suffice to make a pleading double, though it be ill pleaded. 2. J\'[atter immaterial cannot operate to make a pleading double. 3. No matter will operate to make a pleading double that is pleaded only as a necessary inducement to another allegation. 4. No matters, however multifarious, will operate to make a pleading double that together constitutes but connected proposi- tions of an entire point." These rules are reasonable, are uni- versally recognized, and are involved in the following terse and pointed definition of duplicity given by the Supreme Court of Indiana: "Duplicity in pleading is the including, though with technical deficiency, two substantially good causes of action or defense in one paragraph." ^ A seeming inconsistency, in saying that matter ill pleaded may operate to make a pleading double, while immaterial matter will not have that effect, vanishes when we consider that immaterial matter is surplusage, that no issue can be based upon it ; and hence the maxim Utile per inutile non vitiatur is applied to it, while the matter ill pleaded that will make the pleading double must, in substance, embody a cause of action or a defense, and one that would support a verdict. § 295. Additional Counts not Duplicity, and Doubleness allowed, in Iowa. — It is proper in this connection to call atten- tion to the statutory requirement that facts should be stated with- out repetition, and to the interpretation which is given to this re- quirement. In most of the courts the Code is held to forbid the 1 Noel V. Hudson, 13 B. Mon. 204. ' Swinney v. Nave, 22 Ind. 178, and adopted in Booher v. Goldsborough, 44 Ind. 490. The term " separate paragraph " is used in the Indiana Code, instead of " sepa- rate statement." See, as affirming these subordinate rules in common-law plead- ing, Stewardson v. White, 3 Har. & McH. 455; Callison v. Lemons, 2 Port. 145; Bryan v. Buford, 7 J. J. Marsh. 335 ; Porter v. Brackenridge, 2 Blackf. 385 ; Lord v. Tyler, 14 Pick. 156. The question, generally, is raised in regard to double pleas, where a single plea contains more than one defense; but the same rules apply to all affirmative pleadings. 341 § 296 OF PLEADINGS. [PART II. repeated statement of the same cause of action, while in others such repetition is permitted, and in others it is permitted when circumstances seem to require. This repetition of statement is not duplicity, and the subject has been heretofore considered, in chapter 9, concerning the union of causes of action in one complaint or petition.^ And in treating of duplicity it has been assumed that the separate statement should contain each but one cause of action; also, this was shown when speaking of such union of causes of action by different statements.''' It has also been shown that the breach of every independent contract con- stitutes an independent cause of action.' Consequently, when an action is brought for the breach of two or more contracts, there are two or more causes of action, to be separately stated. It has, however, been held otherwise by a very respectable court. The Supreme Court of Iowa allows the union in one statement or count of two or more promissory notes, which are certainly in- dependent contracts,* the ruling having been first made by a divided court.^ MULE II. Facts sJiouId be stated with Certainty. § 296. Certainty as to Time and Place. — In considering the afiirmative rule that time and place, when material, must be stated, and truly, circumstances were indicated under which a statement of place would become necessary.^ When not mate- rial to the cause of action and the jurisdiction of the court, and when not matter of description, no allegation need be made in re- gard to the place where the contract was entered into, or the transaction occurred, which is the foundation of the action. The fictitious venue of common-law pleadings is unknown. But 1 See, ante, 2 119. 2 Ante, il 119, 120. s Ante, I 118. 4 Stadler u. Parmlee, 10 Iowa, 23 ; Merritt v. Nihart, 11 Iowa, 57 ; Ragan v. Day, 46 Iowa, 239. ' The Iowa statute requires that, " when the petition contains more than one cause of action, each must be stated wholly in a count or division, by itself, and must be sufficient in itself" (Code 1873, §2646); and that the counts be consecutively num- bered. Ibid., I 2705. 6 Ante, II 284-287. 342 CH. XV.] AS TO THE MANNER OP STATING FACTS. § 296 in regard to time, it would seem to be otherwise. Although, unless time be material, there would be no variance if the state- ment in regard to it was not sustained by the evidence, yet there can be no definite description of any event without some refer- ence to the time of its occurrence ; and in time contracts no lia- bility could be shown unless the date of the contract were given. Ordinarily, the omission of an allegation in regard to time would be a defect of form — a want of definiteness and certainty in de- scription — to be corrected by motion ; but in the case last sup- posed, when an obligation falls due a certain period after it was entered into, unless it is shown when the contract was made, the pleading would be demurrable, as not showing a liability.^ And yet, in this case, it may not be necessary to state the time truly, provided it appears that the period has elapsed. The rules in regard to time as enforced in common-law and code pleading are substantially the same, although, so far as the allegation was merely formal, it may be omitted. Thus, it was necessary to give time and place in stating every traversable fact, and hence we find, running through the pleading and accompanying every such alle- gation, the " on," etc., and " at," etc., or the " then and there." This formality is no longer respected, and the time should be given, or be repeated, only as necessary to a clear understanding of the facts. Explanatory matters, or matters of inducement, are usually stated in a more general way than matters of sub- stance, or the gist ; but as to them it must appear that they re- late to the latter in all these material incidents. Thus, if one would enforce a contract according to a foreign law, he must state such law as it existed when and where the contract was entered into ; or, if one claims certain words to be defamatory in reference to his occupation, he must show that such was his occupation when the words were spoken. 1 See The People v. Ryder, 12 N. T. 433. This case may be supposed to sustain the idea that no direct averment of time is necessary, even when material, provided it can be made to appear from the whole pleading. The allegation was that an elec- tion was duly and legally held under the statute, and as the court took judicial no- tice of the statute and the time fixed for the election, the pleading was sustained — not as being properly drawn, but as not being subject to general demurrer. Upon mo- tion to make it certain, it would doubtless have been held to be defective. 343 § 298 OF PLEADINGS. [PART II. § 297. Property should be described with Certainty. — Mr. Stephen gives as a rule that " the pleading must specify quality, quantity, and value, ^ and yet its application was so loose and ar- tificial that the pleading often described anything but the prop- erty in respect to which the action was instituted. In ejectment, the pleader must give quantity and quality ; yet a conveyance with no better description of the land conveyed than, say, ten acres of arable land, ten acres of meadow land, ten acres of past- ure, ten acres of land covered with water, and ten acres of other land in the parish of Dale, would be now worthless, for uncer- tainty, though it was good in common-law pleading. And in the common courts it was sufBcient, in an action for the price of per- sonal property, although consisting of a hundred items, and of different kinds, to describe it as goods sold and delivered, without, giving either quantity, quality, or value. Since the fictitious ac- tion of ejectment was abolished, in all actions affecting the posses- sion or the title to land, the pleader should be required to describe it with at least the precision necessary in a deed of conveyance, although nothing need be said in regard to its quality or value unless some issue arises maldng it material. But, as we shall presently see, the old vagueness in regard to goods sold seems, in some states, to be still preserved. This total want of definite de- scription in actions for the price of goods was allowed in debt and assumpsit only, while in replevin, trespass de bonis, and in trover, it was necessary to describe them with certainty.^ I know of no decisions under the Code that, in corresponding actions, dispense with that necessity. § 298. The common Counts. — The old common counts, with their general allegations, were sufficiently certain in common-law pleading to cover any demand that could be made matter of ac- count. This want of certainty is carefully guarded against in the practice codes of most of the states. Thus, in Missouri, in an ac- tion upon an account, certainty is secured by requiring that, if the pleading does not specify the items of the account, the pleader 1 Stephen's PI. [* 296]. » Ibid. [* 297]. 344 CH. XV.] AS TO THE MANNER OF STATING FACTS. § 299 shall attach a copy, referring to it in the pleading, which copy shall be a part of the record.^ In Iowa it is required that, if the pleading be founded upon an account, a bill of particulars thereof be incorporated into, and made part of, the pleading.'^ In Oregon the party may set forth in the pleading the items of the account, or file with it a sworn copy, or dehver such copy to the opposite party.^ In Indiana, when any pleading is founded on a writ- ten instrument, or an account, the original, or copy, must be filed with the pleading.* In Kentucky^ a copy of an account sued on must be filed ; and so in Arkansas.^ In Kansas,' in Ne- braska,* and in Ohio,^ " if the action, counter-claim or set-off is founded on an account, note, bill, or other written instrument, as evidence of indebtedness, a copy thereof must be attached to, and filed with, the pleading." § 299 . Continued — The Count for Goods sold. — It seems to have been, from the beginning, conceded in the New York Court of Appeals that, in an action for the price of goods, the naming of the property as simply " goods," without in any way describing them, is sufficient under the Code, as before its adoption. Con- troversies arose as to the sufficiency of the allegation contained in the common count, but it was settled in an early case^" that a pleading is sufficient which contains the statement of facts neces- sary in common-law pleading to constitute a good indebitatus count in debt. The same view is taken in California.^' These decisions in New York and California as to the sufficiency of the common counts may be warranted by the following provision in the codes of those states : "It shall not be necessary to set forth 1 Wag. Stat. 1020, § 38. 2 Code 1873, ? 2718. 3 Code Civ. Proc, ? 82. * Code Civ. Proc, § 78. 6 Bullitt's Code, § 120. 6 Dig. 1874, I 4599. ' Code Civ. Proc, § 118. Cocle Civ. Proc, I 124. 9 Code Civ. Proc, \ 117. 10 Allen V. Patterson, 7 N. Y. 476. " Abadie v. Carillo, 32 Cal. 172 ; Wilkins u. Stidger, 22 Cal. 235 ; Magee v. Kast, 49 Cal. 141. 345 § 300 OF PLEADINGS. [PART II. in the pleading the items of an account therein alleged, but he shall deliver to the adverse party, within ten days after demand thereof, in writing, a copy of the account, which, if the pleading be verified, must be verified," etc.^ The same clause is in the Code of Wisconsin,' of Minnesota,* of Colorado,^ of Nevada," of North Carolina,^ of South Carolina,* and of Florida.' The New York and California cases just cited are, doubtless, treated as authority in all the states which have adopted this provision, but they can have no weight in the states mentioned in the preced- ing section. There are many decisions in regard to the present validity of the common counts when they do not describe the real cause of action, which do not pertain to the present subject, and which have been noted elsewhere.' § 300. Certainty In pleading Estates. — There is a distinction at common law between the mode of pleading estates in fee-simple and particular estates. While a general allegation in the former case is sufficient — as, that the party " was seized in his demesne, as of fee, in a certain messuage," etc. — in the latter the com- mencement of the particular estate must be shown.'" The reason given in an old case is because particular estates ' ' are created out of the primitive estate, and the court must judge whether the primitive estate and agreement be sufficient to produce the par- ticular estate claimed."" Another reason given is that " a fee may be proved by acts of ownership or long possession ; a fee may be acquired by a wrong, but a particular estate cannot be got by wrong ; so that no evidence can prove the existence of a particular estate without deriving it from a fee." '* This rule was > Ante, II 156, 157. » Code Civ. Proc. N. T. 1876, 1 531 ; Code Civ. Proc. Cal. 1874, J 434; Cudlipp v. Whipple, 4 Duer, 610. ' Kev. Stat., oh. 125, J 20. * Code Proc, J 92. ' Code Civ. Proc, J 64. s Conip. Laws 1873, § 1119. ' Code Civ. Proc, § 118. 8 Code Proc, ? 181. » Code Civ. Proc, ? 108. " Stephen's PI. 308, and note p. " Soilly V. Dally, 2 Salk. 562, adopted in Handy v. Stephenson, 10 East, 60. " Jones V. Whitley, 3 Wils. 72. 346 CH. XV. J AS TO THE MANNER OF STATING FACTS. § 301 considered obligatory only when the title was of the gist of the action or defense ; when it was but matter of inducement, a general statement was sufficient.^ The question was usually raised in special pleas — as, in avowry to the action of replevin, in distress of cattle damage feasant, or in justification in trespass quare clausum — but the rule is a general one. In New York, Wiscon- sin, Oregon, and Minnesota, where the right of distress damage feasant is retained, it is made by the Code sufficient for the distrainer to plead that he was lawfully possessed of the real property, and that the property distrained was, at the time, doing damage thereon.^ In Iowa it is enacted generally that " it shall not be necessary to allege the commencement of either a particu- lar or a superior estate, unless it be essential to the merits of the case." ^ § 301. Statutory Exceptions — 1. Conditions precedent. — For the sake of securing brevity in pleading, and where the ends of justice are as well secured as by greater particularity, the stat- ute has made certain exceptions to the general requirement of cer- tainty in addition to those recognized in common-law pleading, one of which pertains to pleading the performance of a condition prec- edent. The following is the old rule, as given by Mr. Stephen: " In pleading the performance of a condition or covenant, it is a rule * * * that the party must not plead generally that he performed the covenant or condition, but must show specially the time, place, and manner of performance."* The codes, on the other hand, provide that, " in pleading the performance of a con- dition precedent in a contract, it shall not be necessary to state the facts showing such performance ; but it may be stated generally that the party duly performed all the conditions on his part.* 1 Stephen's PI. [* 309]. ' Code Proc. N. T., I 166 ; (sustained— see Wait's N. Y. Code Civ. Proc. 497) ; Eev. Stat. Wis., ch. 125, § 30 ; Code Proo. Minn., J 102 ; Code Civ. Proc. Oreg., J 90. ' Code Iowa 1873, ? 2724. * Stephen's PI. 334. 6 Code Proc. N. Y., ? 162 ; Code Civ. Proc. 1876, J 533 ; Code Civ. Proc. Ohio, 1 121 ; Code Civ. Proc. Ind., I 84; Rev. Stat. Wis., ch. 125, I 26; Code Civ. Proc. N. C, I 122; Code Proc. S. C, ? 185; Code Civ. Proc. Fla., I 112; Dig. Ark. 1874, I 4604; Wag. Stat. Mo. 1020, I 42 ; Code Iowa 1873, I 2715 ; Code Proc. Minn., | 96 ; Code Civ. Proc. Kan., I 122 ; Code Civ. Proc. Neb., ? 128 ; Code Civ. Proc. Cal. 1874, J 457 ; CoDip. Laws Nev., 2 1123; Code Civ. Proc. Greg., J 86; Code Civ. Proc. Col., I 67. 347 § 302 OF PLEADINGS. [PAKT II. § 302. Scope of the Provision. — But for a case or two in the Supreme Court of New York, I should unhesitatingly say, both upon principle and from the general spirit of the authorities, that this provision can only refer to conditions named in the contract sued on. First, the lano-uage of the statute would indicate that the condition was " in the contract" — i. e., named in it — and any other interpretation would excuse the pleader from stating the facts that constitute the cause of action. In suing upon a con- tract with express conditions, he necessarily describes them, and when he avers a performance, though in general terms, the pleading shows precisely what he has done ; thus, the whole pleading is logical, and the requirement to state the facts is com- plied with. But in pleading the conditions imposed by law — as, the demand and notice in an action against the indorser of a bill or note — for the plaintiff to say that he has duly performed all the conditions on his part, would aver no fact. To make the statement logical, he should state what conditions the law imposes, and then he might state their performance generally ; but that would be pleading law, which will not do. But it has been held in a few cases that an averment that the payment of a note was duhj demanded, and that it was duly protested, was authorized by the clause under consideration.^ The decisions in New York ' In Gay v. Paine, 5 Hotv. Pr. 107, a defective allegation of a demand or payment of a note was held to be aided by this section of the statute. In Adams v. Sherrill, 14 How. Pr. 297, the averment that the note in suit was duly demanded, was duly pro- tested, and notice thereof duly given the indorser, was also held to be good pleading under this clause; Paige, J., however, remarking: "Had not a different construc- tion been given to the first clause of that section (§ 162), I should have been in- clined to hold it to apply only to contracts wherein the conditions precedent are expressly stated, and not to contracts where such conditions are implied by law — as, in cases of the contract of indorsement. But as it has been several times held in this court that this clause of section 162 (Code 1876, ^ 533) does apply to the contract of indorsement, I feel bound to follow the decisions on this subject." Citing Gay v. Paine, supra ; Bank of Geneva u. Gulick, 8 How. Pr. 53, and Adler v. Blooming- dale, 1 Duer, 602. In Bank of Geneva v. Gulick, 8 How. Pr. 51, the pro- vision under consideration was one embodied in the last clause of section 162, which is concerning an entirely different subject, although the court notices an objection to the pleading by copy, that there was no averment of demand and notice, saying (p. 53): "These conditions are precedent. Their performance should be stated with at least as much particularity as the first part of section 162 •.requires," and citing Gay v. Paine. Also, in Adler v. Bloomingdale, 1 Duer, 601, the same question was before the court, to wit, whether the last clause of section 162 dispensed with the allegation of demand and notice in suing an indorser of a note. 348 CH. XV.] AS TO THE MANNER OF STATING FACTS. § 303 are uniform that, in order to charge an indorser, the pleading must show a compliance with the legal obligation to make demand and give notice to the person to he charged, though I do not find, except in the cases referred to in the note, the question raised as to the efl'ect of the clause under consideration upon the manner of making the averment.^ In other states the holding is, either direct or by the plainest inference, that the allegation of demand and notice must be specific' And it will be safe to assume, notwithstanding the contrary view in the New York Supreme Court, not only that the clause refers to contracts,^ but to such conditions only as are expressed in them. §303. Statutory Exceptions. — 2. Pleading Judgments, The court held that it did not, but remarked (p. 605) : " The averment, according to the decision of the Supreme Court in Gay v. Paine, may now be made in general terms; but in some form, general or special, it is indispensable." In Gay v. Paine, and in Adams v. Sherrill, and in the dicta referring to the first case, if there is any significance in their reference to the clause under consideration, there can be, in an action against an indorser, no necessity for any specific averment in regard to demand and notice, whether it be that they were duly made, or whether the time and place be given, inasmuch as the statute says that it shall not be necessary to state the facts showing the performance of conditions, "but it maybe stated generally that the party duly performed all the conditions on his part ; " and in Butchers' Bank v. Jacobson, 15 Abb. Pr. 220 (s. c, 24 How. Pr. 201), the general allegation by the indorsee against the indorser of a promissory note, "that plaintiffs have duly performed all the condi- tions in said contract on their part," was held to be sufficient. 1 Adler v. Bloomingdale, 1 Duer, 601; Cottrell v. Conklin, 4 Duer, 45; Price v. McClave, 6 Duer, 544 ; Garvey v. Fowler, 4 Sandf. 665 ; Judd v. Smith, 3 Hun, 190 ; Conkling v. Gandall, 1 Keyes, 228. 2 In Harbison v. Bank, 28 Ind. 133, it was held that the words " that said bill was duly presented for payment at the place where payable, and payment thereof refused," state a conclusion of law merely, and the complaint is bad on demurrer, although it might have been good, according to Kohler u. Montgomery, 17 Ind. 220, on motion in arrest. The duty of specifically alleging demand and notice is implied in Jaccard v. Anderson, 32 Mo. 188, and in Pier v. Heinrichoffen, 52 Mo. 333, although a cognate question was before the court. The same duty is alleged in Dolph v. Pvice, 18 Wis. 397. In California the distinction is made, in several cases, between condi- tions required by contract and those prescribed by statute ; and it is held that the clause permitting a general averment of a performance of a condition precedent applies only to contracts. Dye v. Dye, 11 Cal. 163 ; The People v. Jackson, 24 Cal. 630 ; Him- melman v. Danos, 35 Cal. 441. It is not stated that the conditions referred to in the clause of the statute under consideration must be expressed in the contract, but that would seem to be implied, as otherwise they are prescribed by law. 3 It is held in Hatch v. Peet, 23 Barb. 575, that where the plaintiff ignored the statute, and undertook to plead specifically the performance of conditions precedent, he must plead with the certainty required in common-law pleadings. 349 § 304 OF PLEADINGS. [PAET II. etc. — Another exception to the old requirement of certainty is contained in the provision that " in pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made." ^ In common-law pleading, in counting upon a judgment of an inferior court, it was necessary to state the facts which conferred the jurisdiction, both over the sub- ject-matter and over the person,^ and when declaring on such judgment rendered in a foreign state, it was necessary to plead the statute giving the jurisdiction.^ This provision of the Code is held not to apply to foreign judgments, etc., of the class named, but as to them, the facts showing jurisdiction over the person and subject-matter must still be stated.^ §304. Statutory Exceptions — 3. Pleading private Statutes. — "In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof."* As we have heretofore seen,* the court does not, at common law, take judicial notice of private statutes, and it was necessary that they be counted upon — that is, set out in 1 CodeProc. N. T., ? 161 ; Code Civ. Proo. 1876, § 532 ; Code Civ. Proc. Ohio, § 120; Code Civ. Proo. Ind., § 83 ; Rev. Stat. Wis., ch. 123, § 25 ; Bullitt's Code Ky., § 122 ; Dig. Ark. 1874, J 4603 ; Wag. Stat. Mo. 1020, J 42 ; Code Iowa 1873, ? 2714 ; Code Proo. Minn., § 95 ; Code Civ. Proo. Kan., § 121 ; Code Civ. Proc. Neb., J 127 ; Code Civ. Proc. N. C, ? 120; Code Proo. S. C, J 184; Code Civ. Proc. Fla., ? Ill ; Code Civ. Proo. Oreg., I 85 ; Code Civ. Proc. Col., § 66 ; Comp. Laws Nev. 1873, J 1122. In California Code 1874 (J 456) the language is more general, covering the judgment, etc., of "a court, officer, or board," and leaving out the words "of special jurisdiction." 2 Turner v. Koby, 3 Comst. 193 ; Barnes v. Harris, 4 Comst. 375. s Sheldon v. Hopkins, 7 Wend. 435. * Hollister v. Hollister, 10 How. Pr. 539 ; McLaughlin v. Nichols, 13 Abb. Pr. 244. 6 Code Proo. N. Y., g 163 ; Code Civ. Proc, J 530, amended ; Code Civ. Proc. Ohio, 5 123. This clause seems hardly necessary in Ohio, under the ruling that all domes- tic statutes are public acts of which the court will take judicial notice. See Brown V. The State, 11 Ohio, 280. Code Civ. Proc. Ind., § 85; Rev. Stat. Wis. 1871, ch. 125, § 27 ; Code Proc. Minn., § 93 ; Wag. Stat. -Mo., 1020, g 40 ; Code Civ. Proc. Kan., 2 124; Code Civ. Proc. Neb., J 130; Code Civ. Proc. Cal. 1874, J 459 — clause as to judicial notice omitted; Code Civ. Proc. Oreg., § 87 ; Comp. Laws Nev. 1873, § 1124; Code Civ. Proc. N. C, | 123; Code Proc. S. C, § 186; Code Civ. Proc. Fla., § 113; Code Civ. Proc. Col., J 68. The Iowa Code of 1873 (? 2708) uses the general term "statute," leaving out the word "private." 6 Ante, § 183. 350 CH. XV.J AS TO THE MANNER OF STATING FACTS. § 305 terms and proved as other facts. The object of the clause, so far as concerns pleading, is to relieve the pleader from the old necessity of setting out the statute in full ; he must still plead it, but may do so in the general way provided for, and then the court takes the same notice of it as of a public enactment. The reasonableness of this provision appears when we consider that private and pubhc statutes are now equally accessible to the parties and the court, and a reference merely suffices ; whereas, when the old rule was established, the former were found only in the parliamentary records, not being pub- lished with the enactments of a public nature. As this pro- vision goes only to the mode of pleading, it does not other- wise change the law of pleading, and is held to refer to do- mestic statutes only, and not to those of other states or foreign countries.^ § 305. Statutory Exceptions — 4. In !LibeI or Slander. — "In an action for libel or slander it shall not be necessary to state in the complaint any extrinsic facts for the purpose of show- ing the application to the plaintiff of the defamatory matter out of which the cause of action arose, but it shall be sufficient to state generally that the same was published or spoken concerning the 1 Throop V. Hatch, 3 Abb. Pr. 23 ; Phinney v. Phinney, 17 How. Pr. 197 ; Carey v. Cincinnati & Chicago E. Co., 5 Iowa, 357; Devoss v. Gray, 22 Ohio St. 159. In Missouri the provision under consideration is followed by another, to wit: "It shall not be necessary in any pleading to set forth any statute, public or private, or any special matter thereof; but it shall be sufficient for the party to allege therein that the act was done by the authority of such statute, or contrary to the provision thereof naming the subject-matter of such statute, or referring thereto in some general terms with convenient certainty." This clause has not received judicial construction, nor is it quite clear whether it has reference to domestic statutes only, or to foreign as well. If the latter, the old rule is materially changed, and even less particularity is required than by the provision given in the text. If the reference is only to domestic acts, the clause is hardly necessary, as the manner of pleading them had already been sufficiently provided for. It is likely, however, that the clause will be held not to refer so much to statutes which are the immediate foundation of the action, and which create the liability or impose the penalty, as to those to which it may be necessary to refer by way of description and inducement — as, that a certain proceeding was had, or obligation was assumed, in accordance with such or such a statute, or sections of a statute, and when the reference is necessary in order to show the liability or legality of the instrument. In this view it will prob- ably be held to refer only to domestic statutes. 351 § 305 or PLEADINGS. V [part II. plaintiff. ' ' ^ This clause sweeps away the inducement, colloquium, and innuendo, so far as they relate to the application of the de- famatory words to the plaintiff, retaining only the general words ; yet the application is left sufficiently certain to be traversable, although the facts showing it are not set out. The change will be better understood by consulting the old forms. Suppose the slan- derous words were " he is a thief," etc. ; it was necessary to state the 'facts showing their application to the plaintiff, and it might have been sufficient to say, although the old precedents contain much more verbiage, that the defendant, " in a certain discourse then and there had, of and concerning the plaintiff, in the pres- ence and hearing of, etc., then and there falsely and mahciously spoke and published, of and conceriiing the said plaintiff, the false, malicious, and defamatory words, to "wit, ' he [meaning the plaint- iff] is a thief,' " etc. The allegation of the discourse is the col- loqnium, and the phrase " meaning the plaintiff " is the innuendo, the office of which is simply to apply the words, and is never a substitute for an averment. This is the simjjlest form of a collo- quium and innuendo, and it was often necessary to refer in the colloquium to specific facts previouslj'^ stated by way of induce- ment, to show that the words written or spoken applied to the plaintiff. The statute, however, dispenses with them only so far as they show that the defamatory words applied to the plaintiff, and goes no further. All the averments necessary in common-law pleading to show the meaning of the words must still be made.^ 1 Code Proc. N. Y., \ 164 ; Code Civ. Proc. 1876, 1 535 ; Code Civ. Proc. Ohio, I 124, omitting the clause "it shall not be necessary," etc.; Code Civ. Proc. Ind., \ 86, like Ohio; Wag. Stat. Mo. 1020, \ 43; Code Civ. Proc. Kan., \ 125, like Ohio; Code Civ. Proc. Neb., \ 131, like Ohio ; Code Proc. S. C, \ 187 ; Code Civ. Proc. N. C, I 124 ; Eev. Stat. Wis. 1871, ch. 125, \ 28; Code Civ. Proc. Oreg., \ 88; Code Proc. Minn., I 100; Code Civ. Proc. Cal. 1874, ? 400; Comp. Laws Nev. 1873, \ 1128; Dig. Ark. 1874, I 4605; Code Civ. Proc. Fla., § 114; Code Civ. Proc. Col., J 69. In Iowa the provision is much broader, renderinu; it unnecessary to state extrinsic facts showing that the defamatory matter was used in a defamatory sense, and making if sufficient to state the defamatory sense in the same general manner as the application to the plaintiff. Code 1873, I 2681. 2 Pike V. Van Wormer, 5 How. Pr. 171; Fry v. Bennett, 5 Sandf. .54; More »• Bennett, 48 Barb. 229. As to the requisites of a complaint in libel or slander, see Towns, on Slander, \\ 308-348. In a case in Missouri, when the new system of pleading had just been adopted, a construction was given to this statute not recog- nized elsewhere, and which seems hardly warranted by its language. The words were 352 CH. XV. J AS TO THE MANNER OF STATING PACTS. § 306 § 306. Statutory Exceptions — 5. Pleading by Copy. — The following provision is found in the codes of some of the states : " In an action or defense founded upon an instrument for the payment of money only, it shall be suiEcient for the party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum, which he claims." 1 In Ohio, Kansas, and Nebraska the provision is ex- tended to accounts, and contains other qualifications, as follows : " In an action, counter-claim, or set-ofi" founded upon an account, promissory note, bill of exchange, or other instrument, for the unconditional payment of money only, it shall be sufficient for the party to give a copy of the account or instrument, Avith all credits and the indorsements thereon, and to state that there is due to him on such account or instrument, from the adverse laid in English, but alleged to have heen spoken in the German language, and there was no statement that they were spoken in the presence of any one or — which, per- haps, would amount to the same thing — that they were published, nor that they were understood. The petition was held good under this statute. Steiber v. Wenzel, 19 Mo. 513. This case was affirmed in Atwenger v. Pellner, 46 Mo. 276. The points were made upon motion in arrest and upon error, and the ruling might have been otherwise had the pleading been objected to before going to trial. The court might, also, have been influenced by a form of pleading published with the statutes, though without legislative sanction. Bowling v. McFarland, 38 Mo. 465. It is difficult, how- ever, to make any words slanderous unless spoken in the hearing of others, and so as to be understood. And how can one be truly charged with speaking certain words, when he spoke entirely different words, in another language? The language of the Indiana statute differs from that of New York — the first clause, as to the omission of extrinsic facts showing the application of the words, is omitted ; the section being : " Sec. 86. In an action for libel or slander it shall be sufficient to state generally that the defamatory matter was published or spoken of the plaintiflF," etc. Under this statute it is held to be sufficient to allege generally that the words were spoken of the plaintiff, without stating that they were, published or spoken in the hearing of any one. Guard v. Risk, 11 Ind. 156 ; Hutts v. Hutts, 51 Ind. 581. "Without the first clause, it does not so clearly appear that the whole object of the statute was to provide for a brief and general mode of stating the application to the plaintiff of the slanderous words. In both Missouri and Indiana the courts would, doubtless, require evidence that the words were published — that is, were spoken in the presence of others, and so as to be understood — and the effect of the ruling is that the plaintiff must prove more than he has pleaded. In Kentucky (Bullitt's Code, J 123) the language is negative, simply making it unnecessarj- "to state any extrinsic fact for the purpose of showing the ap- plication to the plaintiff of the alleged defamatory matter." 1 Code Proc. N. T., 2 162, second clause; Code Civ. Proc. N. T. 1876, ? 534, amended; Eev. Stat. "Wis., ch. 125, J 26; Code Civ. Proc. N. C, I 122; Code Proc. S. C, i 185; Code Civ. Proc. Fla., 2 112. •353 § 306 OF PLEADINGS. [PAET II. party, a specified sum, which he claims, with interest. When others than the makers of a promissory note, or the acceptors of a bill of exchange, are parties in the action, it shall be necessary to state also the kind of liability of the several parties, and the facts, as they may be, which fix their liability."^ It will be presently seen that the qualification given by the Ohio statute in regard to parties to notes and bills, is held by the courts of New York to be implied in the statute of that state, and that it is not sufficient for a plaintifi" to give a copy of the instrument sued on, with the general allegation of indebtedness, unless it be executed by the defendant to the plaintiff, or contains such indorsements as show the plaintiff's right to sue ; and if the defendant's ha- bility depends upon any extrinsic facts, the allegation of such facts is required. The cases bearing upon the latter point were referred to in considering the first clause of the New York sec- tion,^ and it is there uniformly held that, when demand and notice are necessary to charge a party to a note or bill, it is necessary, in addition to filing a copy of the bill or note, with the allegation of indebtedness, also to allege the demand and notice ; the only doubt being whether a general allegation that the plaintiff duly made demand, etc., or that he has duly performed all the con- ditions in the contract on his part, is not made sufficient by the first clause of the section.^ This clause, therefore, both as orig- inally adopted in New York and as modified in Ohio, does not dispense with the allegations which are necessary to charge the defendants ; for if the liability depends upon facts other than the examination of the paper, the action is not founded upon the paper alone, but upon other facts as well. As against the maker of the note, or the acceptor of the bill, there is, in favor of the payee, a prima-facie liability ; but as against other parties, the liability is not shown by the exhibition of the paper alone, but by other facts — which must be proved, and, therefore, be alleged. 1 Code Civ. Proc. Ohio, I 122 ; Code Civ. Proc. Kan., § 123 ; Code Civ. Proe. Neb., ?129- 2 Ante, I 301. » See Butchers' Bank v. Jacobson, 15 Abb. Pr. 220 ; Bank of Geneva v. Grulick, 8 How. Pr. 51; Alder v. Bloomingdale, 1 Duer, 601: Cottrell v. Conkling, 4Duer, 85; Price V. McClane, 6 Duer, 544 ; Conklin v. Gandall, 1 Keyes, 228. > 354 CH. XV.j AS TO THE MANNER OF STATING PACTS. § 307 And so with the plaintiff's title to the paper. If he is not the payee, the instrument filed must show the assignment to him, or there must be some allegation of transfer of title. A blank in- dorsement will not suffice, unless filled up. " It [the complaint] should show in some way the connection between the plaintiffs and the note — i. e., that it was indorsed or transferred to them, or that they are the holders or owners of the note. As it now stands, there is no such allegation. The indorsement, as copied, if that be deemed a part of the instrument, is in blank, and there is no averment that the note was delivered to the plaintiffs." ^ § 307. This Exception applies only to the Statement that "there Is due him." — With the construction of this clause as thus given, it is only to a very limited extent an exception to the general requirement of certainty in the statement. Certain facts may appear rather by the copy set out than by direct averment ; yet they appear with equal certainty as though directly stated ; and if other material facts are not shown by the copy, they must be so stated. It is rather, so far, a pleading of a contract according to its letter than according to its legal effect, which is permitted independent of this statute. One averment is, how- ever, allowed by the statute which, otherwise, would be bad, as a statement of a conclusion of law rather than of a fact. Instead of saying that no part of the instrument has been paid, or, accord- ino- to the old form, that the defendant refuses to pay the same, or any part thereof, though often requested so to do, the pleader is permitted to state that "there is due him" a certain sum, which is a legal deduction from the facts that he contracted to pay and has not done it ; so, as with all these statutory excep- tions, the pleader is permitted to state a conclusion of law in lieu of the facts. With the construction given this clause, it makes but a slight change in the mode of pleading written agreements. It was always permitted to plead by copy, provided it was accom- panied by allegations necessary to constitute a cause of action ; and these seem to be still required in the states which have adopted this clause.* I Lord V. Cheeseborough, 4 Sandf. 696. » As to necessary allegations where one pleads by copy, without the help of the clause under consideration, see Joseph v. Holt, 37 Cal. 250. 355 § 30» OF PLEADINGS. [PAET II. §308. Other Exceptions — 1. In pleading Consideration. — In actions upon contract the general rule is that the pleading must show the consideration of the agreement put in suit. The exceptions to that rule — where the agreement, either at common law or by statute, imports consideration — have been heretofore given.^ The consideration is, in general, essential to the contract, and must, if put in issue, be proved ; and, if to be proved, must be alleged. The rule requiring certainty makes it necessary to set out the true consideration' — that is, the consideration the party is called on to establish by evidence. But it is not neces- sary to allege what need not be proved ; hence, when the proof of the true consideration is dispensed with — when it is sufGcient to show that the contract is founded upon some consideration, whatever it may be — the allegation may be made in general terms. Thus, where a written instrument acknowledges a con- sideration without describing it — as, the recital, "for value received," or, " for a good consideration" — the true considera- tion need not be proved ; the recital in the instrument is sufficient evidence in this regard. In such cases it necessarily follows, from the principles of pleading, that the averment of considera- tion may be equally general. This was the old rule,* and is recognized by the New York Court of Appeals as still subsisting, as applied to a case where the plaintiff plead by copy, and the instrument contained the words "value received." There was no allegation in regard to the consideration, and the court held this to be a sufficient averment.* § 309. 2. "No greater Particularity is required than the Nature of the Thing pleaded will conveniently admit." — This qualification of the general rule is quoted from Stephen.* It is a reasonable one, and must be treated as still subsisting, and ap- f)lies to statements of facts the particulars of which are not sup- posed to be within the pleader's knowledge. The instance given 1 Ante, II 268, 269. » 1 Chitty's PI. 293, 295. ' Jerome v. Whitney, 7 Johns. 321 ; Saxton v. Johnson, 10 Johns. 418 ; Walrad v, Petrje, 4 Wend. 575. * Prindle v. Caruthers, 15 N. Y. 425. s Stephen's PI. [* 868]. 356 CH. XV. J AS TO THE MANNER OF STATING FACTS. § 310 bj' Stephen is an old case,^ when one claimed to have been elected to an office, and it was held not to be necessary to give the mim- ber of votes given, nor the exact majority the claimant received, for the reason that the election may have been had by voice or show of hands, wherein it might be easy to tell who had a ma- jority, but difficult to show the certain number. When, however, the votes are by ballot, or, if by voice, when they are recorded, the reason for permitting so general a statement does not exist, and it is believed, and such is the general practice, that the num- ber of votes should be given, though I do not suppose that th« precise number is so material that there would be a variance if a different one were proved. It is held in Missouri that if one's claim to an election is resisted upon the ground that he received illegal votes, the number of such illegal votes must be stated.^ Other illustrations readily occur — as, in a suit upon a lost note, when the date is material, the pleader must necessarily be per- mitted to give it as near the true time as may be, with the reason for no- greater certainty ; and in an action against the insurer of goods burned, the insured may not be able to give other than a general description. § 310. 3. "Less Particularity is required when the Facts lie more in the Knowledge of the opiJosite Party." — This qualification is also from Stephen,^ but, from its nature, must at- tach to all systems. Thus, in pleading title, the pleader is sup- posed to know his own, and is required to set it forth with rea- sonable certainty ; while he is not supposed to know the particu- lars in regard to that of the opposite party, and may give it in a general way. The following, from Saunders' Eeports,* shows the rule in regard to pleading title : " It is held to be unnecessary to state how the defendant is heir, for it may not be in the plaintiff's knowledge — as, when the defendant is the nephew or cousin of the person who died last seized, it is enough to charge him generally as his heir. Thus, in debt upon bond against the defendant as 1 Buckleyi). Rice, Plowd. 118. 2 The State v. Townsley, 56 Mo. 107. 3 Stephen's PI. [* 368]. • Saund. 7 e, in note 4. 357 § 312 or PLEADINGS. ' [PAET II. heir of lus ancestor, it was objected on demurrer that it was not stated how tlie defendant was heir ; but the court overruled the objection, and took a difference between an action by and against an heir. In the former case he must show his pedigree, and how heir, for it lies within his knowledge ; but in the latter it is not necessary, for he is a stranger, and it would be hard to compel him to set forth another pedigree. 1 Salk. 355." A policy of insurance in the possession of the opposite party may be described in a general way,^ and a defendant sued as assignee of a lease may be so called in general terms, for the plaintiff is a stranger to his title .2 §311. 4. " Less Particularity is necessary in the Statement of Matter of Inducement." — Mr. Stephen has it " matter of inducement or aggravation," etc.; but matter of aggravation, technically so called — the fictitious allegation of special injury — and the alia enormia can find no place in a pleading where only such facts are stated as the party expects to prove. The real in- jury whether more or less, is matter of substance. It is this quali- fication of the rule requiring certainty of statement that justifies the allegation that the plaintiff is a corporation organized under the laws of the particular state or country, without setting out the act or proceeding by which it was created. So, in ordinary actions by or against partners, it is sufiicient to state generally that they are partners, without giving the articles of copartner- ship. But if the action be of such a nature as to involve the fact of incorporation, or the terms and conditions of a partnership, then they become the gist, and the facts must be set forth with certainty. § 312. 5. " With respect to Acts valid at Common Law, but regulated, as to the Mode of Performance, by Statute, it is suflacient to use such Certainty of Allegation as was sufficient before the Statute."^ — The rule, as thus given by Mr. Stephen, referred especially to contracts and conveyances required by the 1 Nellis V. DeEorest, 16 Barb. 67. ' Norton v. Vultee, 1 Hall, 384. » Stephen's PI. [* J 374]. 358 CH. XV.] AS TO THE MANISHEE OF STATING FACTS. § 312 statute of frauds to be in "writing ; and, under it, it was held to be sufficient to charge the defendant's liability as before its adoption, leaving it to be pleaded, or, if the contract be denied, to be en- forced, in submitting evidence. Thus, instead of affecting the statement of the facts constituting the cause of action, although an additional fact was rendered necessary, the party was only re- quired to show, upon the trial, that he had complied with the requirement of the statute. It might be supposed that the general requirement to state the facts that constitute the cause of action would have changed this rule so as to require a plaintiff to set forth a valid contract ; but the old rule is held to be still a subsisting one in New York,^ in Ohio,^ and in Missouri.' It is, however, necessarily greatly limited in its operation in those states that make it necessary to file with the pleading either the original instrument upon which the action is based (as in Ken- tucky* and Missouri^), or a copy of the same (as in Ohio,* Kansas,^ and Nebraska*), or the original or copy (as in In- diana"* and in Arkansas)." Where, as in most of these states, the paper or its copy is made part of the record, it must nec- essarily appear that the contract was in writing, or the record would fail to show a cause of action. Thus, the Code of Indiana provides that, ' ' where any pleading is founded on a written instrument or account, the original, or a copy thereof, must be filed with the pleading, and that such copy of a written instru- ment, when not copied in the pleadings, shall be taken as part of the record ; ' ' and in view of this statute the Supreme Court of that state, after acknowledging the rule in common-law pleading, uses the following language: "Under our Code, if the contract 1 stem V. Drinker, 2 B. D. Smith, 401 ; Amburger v. Marvin, 4 E. D. Smith, 393 ; Livingstone v. Smith, 14 How. Pr. 490; "Washburn v. Pranklin, 7 Abb. Pr. 8; Mara- ton V. Swett, 66 N. Y. 206. 2 Sturges V. Burton, 8 Ohio St. 215. ' Miles V. Jones, 28 Mo. 87 ; Gardner v. Armstrong, 31 Mo. 586. * Bullitt's Code, § 120. 6 Wag. Stat. 1022, ? 51. « Code Civ. Proc, ? 117. ' Code Civ. Proc. ? 118. 8 Code Civ. Proc. § 124. » Code Civ. Proc, J 78. '• Dig. 1874, 2 4599, 859 § 312 OF PLEADINGS. [PAKT II. be in writing, a copy of it must be liled with the complaint ; and if it is not alleged to be in writing, and no such copy is filed with the complaint, the presumption arises that the contract declared on is not a written one ; and if the contract is such as is required by the statute of frauds to be in writing, the objection may be taken by demurrer." ' In Missouri, where the pleader is required to file the original contract and also a copy of the account upon which the action is based, the contract so filed is not made a part of the record, although it is otherwise with the copy of the account. The practice is to state in the body of the pleading the fact that the contract has been filed, although this statement has not been affirmatively held to be necessary. If, however, it appears that there was a writing, and that it has not been filed, the pleading is held to be bad on demurrer or motion in arrest,^ or the suit may be dismissed.^ In Iowa, a failure to show that a contract was in writing, when the law requires it to be so evidenced, is expressly made one of the grounds of demurrer ; * and the Supreme Court of Kentucky seems to disre- gard the rule entirely, in holding that a petition counting upon a representation as to the responsibility of another, which is not stated to have been made in writing, does not state facts sufficient to constitute a cause of action, and will not sustain a judgment, although rendered by default." This rule of pleading is some- times defended upon the ground tliat what is implied need not be pleaded, and, when it is stated that one lias made a contract, it is to be presumed that, in maldng it, he complied \vith all legal requirements. If this were the foundation of the rule, it would not be confined to acts "regulated, as to the mode of perform- ance, by statutes," but the general allegation would suffice as well in pleading other matters. ' Harper v. Miller, 27 Ind. 277 ; affirmed in King v. Enterprise Ins. Co., 45 Ind. 43, where it is held that a pleading showing the contract sued on to be in writing is had on demurrer, unless a cop}' is filed. See, also, Price v. Grand Eapids & Indiana R. Co., 13 Ind. 58. 2 Hook V. Murdoch, 38 Mo. 224. " Rothwell V. Morgan, 37 Mo. 107. * Code 1873, J 2648. See, also, section 2770, middle clau=e, which provides that "no pleading which recites or refers to a contract shall be deemed sufficiently specific unless it states whether it is in writing or not." ' Smith V. Fah, 15 B. Mon. 443. 360 Cll. XV. j AS TO THE MAlSisEU OF STATING FACTS. § 31i RULE III. Every Statement of a Fact should be direct and positive. § 313. Scope of the Kule. — This might have been classed among those subordinate to Kule II in this chapter, but this posi- tion has been given it : that the vices at which it is aimed, to wit, am))iguitv, repugnancy, negatives pregnant, argumentative and hypothetical pleading, and pleading by way of recital, may be separately considered. § 314. Ambiguity — Its Effect. — Pleadings should not be ambiguous or equivocal. In construing such pleadings it was once said that where two ditFerent meanings present themselves, that construction sh;dl be adopted Avhich is most unfavorable to the party pleading.^ This rule, however, had come to be so modified as to hardly leave it the force of a rule. Thus says Mr. Chitty : ^ "The maxim must be received with this qualification: that the language of the pleader is to have a reasonable intend- ment and construction ; and when an expression is capable of dif- ferent meanings, that shall be taken which will support the decla- ration, etc. ; and not the other, which would defeat it." And, fur- ther, if the pleading " be clearly capable of different meanings, it does not appear to clash with any rule of construction, applied even to criminal proceedings, to construe it in that sense in which the party making the charge must be understood to have used it, if he intended that his charge should be consistent with itself." The general requirement found in the statutes of all states which have adopted the system — that, " in the construction of a pleading for the purpose of determining its effect, its alle- gations shall be liberally construed, with a view to substantial justice between the parties " — if not wholly inconsistent with the principal rule, would, at least, recognize the modification thus given by Chitty. Thus, in a case in New York,^ the ambiguous words referred to preceding parts of the comj^laint, and could not be understood without such reference, and they might gram- matically refer to that which, would make them intelligible, and, ' 1 Chitty's PI. 237; Stephen's PI. [* 378]. 2 1 Chitty's PI. 237. » Olcott V. Carroll, 39 N. Y. 436. 361 § 315 OF PLEADINGS. [PART II. together, state facts which would constitute a cause of action, or to another averment which would create no liability. The court gave it the former reference, both in obedience to the statute and the modification of the rule in common-law pleading, notwith- standing it was most favorable to the pleader.^ In California the old maxim is treated as still applicable to pleadings, and the court will construe an averment most strongly against the pleader.^ It is held, however, in Wisconsin, that if the objector has gone to trial without demurring, or otherwise objecting to his adversary's pleadings, afterwards such pleadings will be most liberally construed in favor of the pleader.' The vice, then, of ambiguity is not fatal on general demurrer or error unless the obscurity is such that no cause of action, or no defense, can be made out by a hberal construction in furtherance of the object of the pleader ; but, still, it is a vice going to the form of state- ment, which will be corrected on motion, and at the pleader's costs. § 315. Repugnancy — ISTegatives pregnant. — The term " re- pugnancy " applies to an allegation inconsistent with itself — as, when one pleaded a grant of a rent out of a term of j'ears, and alleged that by virtue thereof he was seized in his demesne as of freehold;* or to one " where a sense is annexed to words abso- lutely inconsistent therewith, or, being apparently so, is not ac- companied by anything to explain or define them." ' Repug- nancy in the latter sense usually occurs where the action is for libel or slander, and when the words counted upon are wholly inconsistent with the meaning given by the innuendo ; or, being apparently so, are not supported by the proper averment. In construing words thus written or spoken, the courts will give them their usual and ordinary meaning. When technical or 1 See Allen v. Patterson 3 Reld. 476 ; Spence v. Spence, 17 Wis. 448 ; Spear v. Downing, 34 Barb. 522 ; Winter v. Baker, 50 Barb. 482 ; Beach v. Bay State Steam- boat Co., 30 Barb. 433. ' Triscony v. Orr, 49 Cal. 612 ; Herrington o. Santa Clara County, 44 Cal. 496. » Teetshorn v. Hull, 30 Wis. 162 ; Hazelton v. Union Bank of Columbus, 32 Wis. 86 ; Hamlin v. Haight, 32 Wis. 237. * Stephen's PI. [* 377]. » 1 Chitty's PI. 238. 362 CH. XV.J AS TO THE MANNER OF STATING FACTS. § 316 slaug terms are used, they should be construed as they are un- derstood by those who are accustomed to use or hear such terms, although the meaning in which they are used and understood is often a question of fact.^ Negatives pregnant arise in traverses when the denial is so worded as to imply an affirmative of the allegation intended to be denied.^ It is evident that both these vices are fatal to the cause of action and to the traverse.^ § 316. Argumentative Pleading is where the affirmative state- ment of a fact is left to inference or argument. The instances of argumentativeness given in the old text-books pertain to tra- verses where some fact is stated from which a denial is inferred,* and such statements will be struck out, on motion.* This vice will be seldom found in a complaint, although a plaintiff may aver a fact argumentatively — as, consideration — by omitting to state it directly, but by giving, as part of his pleading, a copy of the contract sued on, which states that the promise was made for value received.* Under the New York statute, which au- thorizes pleading by copy, this mode of pleading would, doub<> less, be proper ; ' and elsewhere, where the copy is made part of the record, if the material fact of consideration is not averred, but is shown in the copy, there would seem not to be such a total omission as to make the pleading worthless ; but the fact appears by inference, and the pleading should be subject to a motion to make it more certain. In California, in an action to enforce a lien for the construction of a sewer, the complaint re- ferred to an exhibit, attached and made part of the complaint, for particulars, which exhibit recited the various steps necessary to create the lien, but on demurrer the pleading was held insuf- ficient.* The ultimate fact, which should be stated directly, may also be matter of inference from a statement of evidence or of » See notes and cases cited in Towns, on Slander, 2d ed., 168-170. ' 1 Chitty's PI. 613, 614, and note u; Stephen's PI. [* 381]. 3 See, post, I 832. * See Stephen's PI. [* 384]. s Williamson ». Port, 14 Ind. 569. 6 Prindle v. Caruthers, 15 N. Y. 425. ' Ante, 2 306. » The City of Los Angeles v. Signoret, 50 Cal. 298. 363 § 318 OF PLEADINGS- [PAKT II. probative facts. As the vices in pleading iioted in this and in the close of the last section are seldom found except in answers, 1 shall again speak of them, in connection with denials in the answer.^ § 317. Hypothetical Pleading. — The opposite party should not be charged with doing this or with doing that, nor should the charge be made dependent upon some other act or event, the do- ing or happening of which is in doubt ^ — as, that the defendant wrote and published, or caused to be wiitten and published, etc. ; ' or, if there has been an escape, there has also been a return ;^ or, if the plaintiffs are the owners and holders of a promissory note named, etc., the said note was obtained by fraud, etc. ;' or, if he (the defendant) did speak and publish the several slanderous words, etc., the same were true ; ^ or, if any ditch or trench was dug, it was dug without the knowledge, etc. ; or, if said plaintiff's wife fell in, it was in consequence, etc. ; or, if such ditch or trench was dug, it was well and sufficiently guarded.^ This style of pleading is chiefly found in answers ; but it is a vice of state- ment, wherever found. ^ § 318. Recitals of Facts. — Facts should be stated, alleged, averred, and not given by wajr of recital. To state or aver that a thing is so or so is very different from speaking of it as being so or so, or whereas it is so or so. A recital is not a statement, but is introductory to a statement ; hence, in common-law pleading, when it was allowed as to a class of allegations, it was never tra- versed. One cannot deny what is not asserted, and the recital as- * Fast, ^2*332, 333. ' Stephen's PI. [* 387]. ' The King v. Brereton, 8 Modern, 328 — a criminal information for libel. « (Griffiths u. Eyles, 1 Bos. & P. 413. 5 McMurray «. Giflford, 5 How. Pr. 14. * Sayles v. Wooden, 6 How. Pr. 84. See, also, Lewis v. Kendall, 6 How. Pr. 59. ' Wies 1). Fanning, 9 How. Pr. 543. * The Missouri Practice Act (Wag. Stat., art. 5, \ 34) contains the following sec- tion : "Eitlier party may allege any fact or title alternatively, declaring his belief of one alternative or the other, and his ignorance, whether it be one or the other." Al- ternative statements, although each states facts that constitute a cause of action, are ambiguous, and, under the California statute, a demurrer will lie. Jamison v. King, 50 Cal. 132. Inconsistent defenses are allowed in Iowa. Code Iowa 1874, \ 2710. 364 CH. XV.J AS TO THE MANNER OF STATING FACTS. § 319 serted nothing ; and, hence, could not be met by a denial. This, however, was but a form, as the general issue, which was in form a denial of some fact directly charged, was held to put every ma- terial fact in issue, although given by way of recital. This mode of stating, in some forms of action, many, or even all, the material facts by way of recital, arose from the idea of singleness — that a good pleading should contain but a single traversable allegation, that the other material averments should be grouped around it, as it were, come in by way of recital, not as containing matters di- rectly averred or charged, but things which had occurred to sus- tain or give character to the charge. But the idea of singleness of issue is abandoned. Every material fact may now be traversed, and, to that end, should be directl}' averred. And, besides, the statute directs that the pleading should contain ' ' a plain and con- cise statement of the facts constituting a cause of action," and that the answer containing new matter should state it ' ' in ordi- nary and concise language." These requirements negative the idea that any fact may be stated by way of recital ; for that is neither the plain nor ordinary way of stating facts. RULE IV. Facts should he stated in plain, ordinary, and concise Language. § 319. The old Formulas abolished. — This statutory rule is antagonistic to the requirement in common-law pleadings that they should observe the known and ancient forms of expression, as contained in approved precedents,' and that they should ob- serve cex-tain formulas in their commencement and conclusion — as, the production of suit, the actio non, the preclude non, the conclusion to the country, or with a verification, etc.^ Instead of the artificial style "contained in approved precedents," the pleader should now use plain and ordinary language, and the for- mulas referred to are omitted altogether. It is not, however, to be understood that all the modes of stating facts contained in the precedents, especially on actions of trespass in the case, are to be condemned as artificial. Some of them, leaving out the mere 1 Stephen's PL [* 392]. » Ibid. [* 393], [* 406]. 365 § 319 OF PLEADINGS. [PAET II. formulas, and always making the averment direct, instead of by way of recital, cannot be made more plain and concise, and they are not to be rejected because, merely, they were in use under another system. The common-law precedents, as reformed in England by the Procedure Act of 1852, can be studied with great advantage by code pleaders who would seek for clear and concise statements of various classes of facts .^ In actions for equitable relief, the change is more radical, though less affecting the forms of expression. The minute and varied statements of the proba- tive facts, the charges to anticipate a defense, and the interroga- tions, became necessary in the equity practice, because bills were for discovery as well as for relief ; and in order to search the con- science of the defendant, he was treated, in the pleading, som&: what as though placed upon the stand and examined as an unwill- ing witness. There is now no difference in principle between statements, whether for equitable or legal relief. ' They may te found in volume 2 of the 16t}i American edition of Chitty's Plead- ings. 366 CH. XVI.] THE DENIAL. § 323 CHAPTER XVI. Of the Answer. 1. The Denial Section 323. The Statute. 324. The old general Issue. 325. The Denial— Its Object and Fonn. 326. Denial of Knowledge. 827. Tacts which may he proved under a DeniaL 328. Continued Illustrations. 329. Continued. 330. Instances of Pacts which may not be proved under a Denial. 331. The Denial should be specific. 332. The Negative pregnant. 333. Argumentative Denials. 334. Denials of legal Conclusions. § 323. The Statute. — "The answer of the defendant shall contain, first, a general or special denial ^ of each material alle- gation of the complaint controverted by the defendant, or any knowledge or information thereof sufficient to form a belief; sec- ond, a statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repeti- tion." * Three kinds of answers are thus indicated : first, a denial ; * In some states a special denial is always required, and in others it is required to a verified pleading. ■'■ Code Proo. N. Y., g 149 ; Code Civ. Proc. 1876, ? 500 ; Code Civ. Proc. Ohio, ? 92 ; Code Civ. Proc. Ind., § 56; Dig. Ark. 1874, I 4569; Rev. Stat. Wis., ch. 125, \ 10; Wag. Stat. Mo. 1015, I 12; Code Civ. Proc. Kan., I 94; Code Civ. Proc. Neb., \ 99; Code Civ. Proc. Cal. 1874, I 437; Comp. Laws Nev. 1873, 1 1109; Code Civ. Proc. Oreg., I 71; Code Civ. Proc. N. C, I 100; Code Proc. S. C, \ 172; Code Civ. Proc. Pla., i 100; Code Proc. Minn.. ? 83; Code Iowa 1873, ? 2655; Code Civ. Proc. Col., 2 57. The language varies somewhat in the different states — the differences, when they are substantial, to be hereafter noted. 367 § 324 QF PLEADINGS. £PART II. second, new matter constituting a defense ; and, third, new matter constituting a counter-claim.^ § 324. The old general Issue. — A glance at the general issue of common-law pleadings will show the difference between that and the denial above authorized. The form of the general issue is, in assumpsit, that the defendant did not promise; in debt, that he does not owe ; in covenant, that the instrument is not his deed ; in trespass or case for a tort, that he is not guilty, etc. This, though too brief to be strictly accurate, is sufficiently so for the present purpose. The general issue, although not in terms a denial, puts in issue all the material allegations in the declaration, and not only that, but in most actions enables the defendant to prove "new matter constituting a defense." The courts first allowed such new matter under the general issue only when it went to the original liability upon the contract or transaction which was the foundation of the action. Thus, under the plea of non est factum, coverture, lunacy, fraud, alteration, could be given in evidence as showing that, although the instrument was executed in fact, the party executing it was, in law, incapable of doing the act, or was deceived in regard to it, or that it has been changed — therefore, it is not, in law, his deed.^ And in indebi- tatus assumpsit, under a denial of the promise, which is implied from facts showing the defendant's liability, he was allowed to prove any facts that would show that no such liability ever ex- isted.^ ■ To this there can, upon principle, be no great objection. But the common-law courts went much further, and allowed de- fenses to be given in evidence under the general issue, for which no sound reason could be given. "According to the strict orig- inal principles of the common law, no. defenses would appear to be admissible in any case under the general issue, except such as go in denial of the truth of the declaration. And, therefore, all special matters of defense which admit, but go in avoidance of, 1 The distinction between set-off and counter-claims, and between counter-claims and cross-complaints or petitions, will be given in chapter 18. 2 Gould's PI., ch. 6, ll 38, 42, 43. » Ibid., I 48. 368 CH. XVI.J THE DENIAL. § 324 the declaration, would seem to require special pleas in bar, as being inconsistent with the general issue." '■ In the original com- mon-law personal actions this rule was generally observed, but in the actions of trespass in the case, and in those actions of debt where nil debet could be pleaded, it was lost sight of. Under non assumpsit, not guilty, and nil debet, the doors were thrown wide open, and almost all matters were admitted in evidence which avoided, although they admitted, the original liability. Thus, in the action of assumpsit, says Mr. Gould, "not only such defenses as deny the allegations in the declaration, but almost all matters of avoidance — such as coverture, infancy, usury, or other illegality, duress, release, a specialty given for the debt, a judg- ment rendered for either party in a former action for the same cause, an award of arbitrators deciding the right in question, and accord and satisfaction — are resjsectively good defenses under the plea of non assumpsit.'^ ^ In actions on the case arising ex delicto, matters of mere avoidance — such as license, former recovery, re- lease, accord and satisfaction — which showed that there was no liability at the commencement of the suit, could be proved under the plea of not guilty. "It would be different, however," says the same excellent author, ' ' to discern any precise principle by which this practice may be justified, or any definite general rule by which to limit its precise extent. Indeed, the practice appears to be, in a great measure, an arbitrary departure from the orig- inal principles of the law, and, as such, to rest on authority, rather than any known legal reason." * 1 Gould's PI., ch. 6, 2 44. 2 Ibid., ch. 6, § 47. ' Ibid., ch. 6, 2 54. In the action of debt on simple contract, nil debet was the gen- eral issue, which is in the present tense, and which is grammatically hut an allegation tbat the defendant does not now owe the plaintiff in manner, form, etc. Hence, under this plea, it was not illogical to permit the defendant to prove anything, although matter of avoidance, which went to show that he did not owe the deht at the time the suit was instituted. But, though logical, it none the less violated one of the funda- mental principles of pleading, and almost the only principle upon which written pleadings can he required, to wit, the duty of the pleader to notify his antagonist, by a statement on paper, of every issuable fact which he intends to establish by evidence. The plaintiff charges indebtedness by showing the facts upon which he bases the charge ; the defendant may put those facts in issue, but if he would discharge himself by new matter, it is as much his duty, on principle, to notify the plaintiff of such new matter as it was the plaintiff's duty to notify him of the original facts. It is proper 369 § 326 OF PLEADINGS. [PAET II. § 325. The Denial — Its Object and Form. — The object of the denial is to put in issue the material allegations of the plaintiff; and if any one material fact is denied, and hot sustained by evi- dence, the plaintiff will fail. Only facts material to the cause of action should be denied, for the denial of an immaterial one pre- sents what is called an immaterial issue, and if only such issues are made, the answer may be struck out as frivolous, or the plaintiff will disregard it and take judgment.^ No specific form of traverse is required. In common-law pleadings, when made direct, it was by an affirmation the contrary of that made by the opposite party — meeting an affirmative by a negative, and a negative by an affirmative. Most pleaders under the Code make an express denial of the fact affirmed by the other party — as, " the defendant denies that," etc., or, " the defendant says it is not true that," etc. The old mode tenders a clear issue, and there is no reason why it may not, ordinarily, be followed. The words " and says he denies," etc., are criticised, but are sus- tained as a denial.^ The denial must be positive and direct, whatever form is used, and it is no longer sufficient to say that the defendant does not owe, or is not indebted to, the plaintiff,' and the old plea of " not guilty " presents no issue.* § 326. Denial of Knowledge. — The defendant is not com- pelled to admit or deny the statement of the plaintiff in regard to remark that this defect in common-law pleading has long since been remedied in England. By the rules of pleading adopted by authority of chapter 42, 4 William IV., the plea of nil debet is abolished altogether, and the general issue of nunquam indebitatus — never indebted — is substituted, under which matter in avoidance cannot be given in evidence, and non assumpsit is so narrowed in its scope as hardly to be recognized by old pleaders, its province being confined to a denial of the promise when it was express, or, when it was implied, to a denial of the facts upon which it was based ; and in actions on notes or bills it Is taken away altogether. * 1 See, post, I 421. ' Espinosa v. Gregory, 40 Cal. 58 ; Chapman v. Chapman, 34 How. Pr. 281. •' Haggerd v. Hay, 13 B. Mon. 175 ; Clark v. Einnell, 16 B. Mon. 329 ; Erancis v. Erancis, 18 B. Mon. 57 ; Curtis v. Kichards, 9 Cal. 33. * Schenk v. Evoy, 24 Cal. 104. An exception as to the form and effect of a denial grows out of the statutes of those states which permit pleading by copy — that is, which authorize the pleader to give a copy of the instrument sued on, and allege, in general terms, that there is a certain amount due him upon the same. A denial of the indebtedness, like the old nil debet, puts in issue every fact alleged, expressly or impliedly. Prindle v. Caruthers, 15 N. T. 425. See, ante, H 806, 307. 370 CH. XVI. J THE DENIAL. § 326 to matter beyond liis knowledge ; hence he is permitted to deny " any knowledge or information thereof sufficient to form a be- lief." In general, the answer, as well as complaint, is required to be under oath, the object being to ascertain upon paper, before the trial, the actual controversy between the parties. The obli- gation to verify the pleading implies an obligation to state the truth ; hence the permission to deny any knowledge or informa- tion, etc., is not absolute. If the fact charged is evidently within the defendant's knowledge — as, an act done by himself and within the period of recollection, or where he has the means of information — a denial of information in the language of the statute would be clearly false or evasive, and such an answer should be disregarded. In Kentucky, before the change made, by Bullitt's Code, when a bill of goods had been charged in a counter-claim as sold the plaintiff, the reply that the plaintiff had no knowledge or information sufficient to form a belief whether the various items were sold to her, and, therefore, she denied their purchase, was held to be evasive, and the correctness of the account thus denied was treated as admitted.^ In California the statute differs from that of New York and most of the other states in requiring, if the complaint be verified, a specific denial, etc., " or a denial thereof according to his information and belief." The pleader is not permitted to evade the statute ; he must deny directly and positively, or must deny, in the language of the statute, " according to his information and belief." To say that " he has not sufficient knowledge to form a belief," and, there- fore, denies, will not do ;^ nor will it be permitted to " deny for want of information to enable them to admit." ^ The rule is also clearly laid down that one will not be permitted to deny, even in the language of the statute, according to information and belief, when the facts are within his knowledge, or he has the means of information.* ' "Wing V. Dugan, 8 Bush, 583. « San Francisco Gas Co. v. The City, 9 Cal. 453. 3 Humphreys v. McCall, 9 Cal. 59. * Says Field, J., in San Francisco Gas Co. v. The City : " The statute imposes upon the defendant, if a natural person, and if a corporation, upon its oflBcers or agents, the duty of acquiring the requisite knowledge or information to enable them to answer in the proper form. * * * Any other form of denial in such cases is an evasion of the statute." Burnett, J., in Humphreys v. McCall, says: "Where the alleged 371 § 327 OF PLEADINGS. [PART II. § 327. Facts wMcIl maybe proved under a Denial. — The denial may be general or special ; the former putting in issue all the plaintiff's material allegations, and the latter the allegation specially denied.^ But neither can do more than put them in issue ; hence, under the new procedure, parties never go to trial upon a written affirmation and denial of certain facts, when the real issues involve the existence of other facts of which no intimation is given in the pleadings. It has been claimed by some that upon a denial only — as, of the making of a contract — evi- dence may be given of any fact — as, coverture, etc. — that would go to its original validity. But the true rule is, as will hereafter be more fully shown,^ that, under a denial, the defendant should be permitted to show no fact that does not go directly to disprove the fact denied. Evidence of facts which admit the act charged, but which avoid its force or effect, or which discharge the obM- gation, is inadmissible ; but, on the other hand, facts may be proved, although apparently new matter, which, instead of con- fessing or avoiding, tend to disprove those alleged by the plaintiff. Such facts support the denial. The plaintiff's allega- tions cannot be true because of certain other facts which are inconsistent with them.^ fact is, from its nature, presumptively within the personal knowledge of defendant, he cannot be permitted to answer upon information and belief, but must answer in the form positive. And where, from the nature of the fact charged, the knowledge of any of the defendants is presumptively based upon information, he is not bound to deny positively, but only according to his information and belief. * * * The word "belief," as used in the statute, is to be taken in its ordinary sense, and means the actual conclusion of defendant drawn from information. There is a clear distinction between positive knowledge and mere belief and they cannot both exist together." In Kentucky, as a substitute for the old denial, the phrase having been the same as in New York and elsewhere (Bullitt's Code, J 95), simply provides for "a traverse." In Colorado the excuse for a direct denial is thus qualified: "In denying any allegation in the complaint not presumptively within the knowledge of the defendant, it shall be sufficient, to put such allegation in issue, for the defendant to state, as to any such allegation, he has not, and cannot obtain, sufficient knowledge or information upon which to base a belief." Sec, 57, last clause. ' In Oregon and in California, when the answer is sworn to, the denial must be special. 2 Post, li 329, 352. ' The doctrine is stated in Shaus v. The Manhattan Gaslight Co., 36 K T. Superior Ct. 262 (s. c, 14 Abb. Pr. [n. s.] 371), as follows : "Although, under the requirements of section 149 of the Code, new matter must be pleaded, and, consequently, the defenses of payment, release, accord and satisfaction, of arbitrament, and many other entire and 372 CH. XVI.] THE DENIAL. § 328 § 328. Continued — Illustrations. — In ejectment, as we con- tinue to call the action for the recovery of real property, and in those states where there is no statutory authority to introduce special defenses under a general denial, one may, under such denial, prove an outstanding title or title in himself; for such evi- dence directly controverts the plaintiff's allegation of title, or right of possession derived from it,^ or shows any other fact which destroys the plaintiff's title. ^ And upon the same princi- ple, in actions for the recovery of personal property, a denial puts in issue the plaintiff's ownership ; and an averment by the defendant that the property belongs to a third person is " not new matter, within the meaning of the staute. It is but another partial defenses, which, while they do not deny the cause of action stated in the com- plaint, yet seek to avoid or to bar it, and which were formerly available under the gen- eral issue, must now be set up in the answer before evidence in support thereof can be received. McKyring v. Bui], 16 N. T. 297 Yet, under a general or specific denial of any part of the complaint which the plaintW is required to prove to maintain his action, the defendant, upon principle and authority, is at all times at liberty to prove anything tending to show that plaintiff's allegation is untrue;'' citing Wheeler v. Billings, 38 N. Y. 263, and Greenfield v. Massachusetts Mutual Life Ins. Co., 47 N. T. 430. 1 As-, title in himself (Bruck v. Tucker, 42 Cal. 346 ; Marshall v. Shafter, 32 Cal. 176) ; although, in those states that do not require the statute of limitations to be spe- cially pleaded, such title be acquired through the statute. Nelson v. Brodhack, 44 Mo. 596 ; Bledsoe r. Simms. 53 Mo. 305 ; Vose v. Woodford, 29 Ohio St. 245. 2 As, where the plaintiff claims, under a tax deed, that the tax had been paid (Lain V. Shepardson, 23 Wis. 224) ; or that such tax deed had been executed and delivered by collusion and fraud (Mather v. Hutchinson, 25 Wis. 27).- But a deed cannot be thus attacked under a denial, unless it is void. Lombard v. Oowham, 34 Wis. 486. The Indiana Code (? 596) provides that, in actions for the recovery of real property, "the answer of the defendant shall contain a denial of each material statement or allegation in the complaint ; under which denial the defendant shall be permitted to give in evidence every defense to the action that he may have, either legal or equi- table." Under this statute the statute of limitations may be given in evidence under a general denial (Vail v. Halton, 14 Ind. 844) ; or an equitable title acquired by an irregular guardian's sale (Maxwell v. Campbell, 45 Ind. 360). But in an action by a wife against her husband to recover lands belonging, in equity, to her, a creditor of the husband who is allowed to intervene, and is made defendant, must, in addition to a denial, show his relation to the husband as creditor. Watkins v. Jones, 28 Ind. 12. And in an action against the city to prevent the improvement of a private alley, a defense that the alley had been dedicated to public use, and thereby become a public highway, is new matter, to be pleaded. City of Evansville v. Evans, 37 Ind. 229. The Ohio statute (g 559), and that of Kansas (§ 596), and of Nebraska (§ 627), makes it sufficient for the defendant to deny generally, in his answer, the title alleged in the petition, or that he withholds possession. 373 § 328 OF PLKADINGS. [PAET II. form of denial of plaintiff's ownership and right of possession set forth in the complaint." ^ One is sued for the consideration of a patent-right which had been conveyed to him ; held, that under a general denial he might prove that the patent was not the sole consideration, but that something else was also to be conveyed.^ In an action for malicious prosecution, a denial that the proceed- ings complained of were without cause, and malicious, is suffi- cient ; and an additional statement showing that there were good and reasonable grounds of action, setting them out in detail, is redundant, and should be stricken out, on motion.^ Evidence showing that the defendant " acted in good faith, under the advice of counsel, after a full and fair statement "to his counsel of the facts of the case, * * * jg directly responsive to the evidence introduced by the plaintiff to show the want of proba- ble cause, and does not constitute new matter, within the sense of the Code." * In an action for the price of tobacco, the com- plaint alleged a sale to defendant, and the answer denied it. After the plaintiff had proved the sale to defendant's agent, it was competent, under the denial, for defendant to show that the 1 Crocker, J., in Woodworth t). Knowlton, 22 Oal. 164. One who sues for the recov- ery of personal property "must recover upon the strength and validity of his own title and right to possession of the property; and if the defendant can show the property, and right to possession of the property, to be in himself, or in a third person, he may do so under the general denial, and thus defeat the action." Downey, J., in Kennedy V. Shaw, 38 Ind. 474. And an additional special paragraph setting up property in defendant may be struck out. Sparks v. Heritage, 45 Ind. 66. The new matter is but an argumentative denial. Davis v. Warfield, 38 Ind. 461. It is a good answer, but unnecessary when the general denial is in. Thompson v. Sweetzer, 43 Ind. 312. ' Wheeler v. Billings, 38 N. Y. 263. " Benedict v. Seymour, 6 How. Pr. 298. An early and elaborate opinion by Sel- den, J. * Rhode, J., in Levy v. Brannan, 39 Cal. 485. In an action against a grand juror for malicious prosecution, he may avail himself of the protection given him by law, under a general denial. Hunter v. Mathis, 40 Ind. 356. See, also, Hodgen v. Deck- ard, 45 Ind. 572. Section 66 of the Indiana Code declares that all defenses, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially ; and section 91, that, under a mere denial of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove. These sections only set out in terms what is elsewhere inferred from the gen- eral provisions in regard to answers. In Scheer v. Keown, 34 Wis. 349, it is held that in an action for malicious arrest and false imprisonment, under a charge of lar- ceny, evidence of the bad character of the plaintiff, as showing probable cause, is inadmissible unless specially pleaded. 374 CH. XVI. J THE DENIAL. §*329 agency had been revoked, of which the plahitiffhad notice ;^ and in an action for goods sold and delivered, the defendant, under a denial, may show that they were sold and delivered to his wife, so as not to bind him.^ In an action of tort for the wrong- ful conversion of a promissory note, transferred to the plaintiflf by a separate instrument, but never in his possession, and also claimed by defendant, it is held that, " under a denial of the alle- gations in the complaint, the defendant may introduce any evi- dence which goes to counteract the facts which the plaintiff is bound to establish in order to sustain his action. Here it was essential for the plaintiff to make out a title or right to the pos- session of the note.'" A defendant denies that he gave the plaintiff the note sued on. After the plaintiff has made a prima- facie case, by proving the handwriting and his own possession, the defendant may show any facts tending to prove that the note was never delivered, for it is nothing without dehvery.* Upon a denial of a contract, a custom or course of business may be proved which modifies the contract as pleaded.^ § 329. Continued. — It is held in Missouri that in an action of trespass for taking goods, the answer simply denying the ownership, the defendant may prove that the sale under which the plaintiff claims title was void, as made in fraud of creditors ; * also, that fraud in procuring the execution of a promissory note may be proved under a denial merely ; ' but this view is contrary to the one generally taken, to wit, that fraud, as a defense, is sustained by affirmative facts which do not contradict, but avoid, the leo-al effect of the facts stated by the plaintiff.^ The statute 1 Hier v. Grant, 47 N. T. 278. 2 Day V. "Wamsley, 33 Ind. 145. It was also held that the special paragraphs set- ting out the facts were but argumentative denials, and should be struck out, on motion. 3 Andrews v. Bond, 16 Barb. 633. * Sawyer o. "Warner, 15 Barb. 282. 5 Miller v. Insurance Co., 1 Abb. N. C. 470. • Greenway v. James, 34 Mo. 327. ' Corby v. Weddle, 57 Mo. 452. 8 In Prisbee v. Langworthy, 11 Wis. 375, the action was replevin, and the answer a general denial. The defendant — the sheriff who had levied upon the property — sought to prove that the mortgage under which the plaintiff claimed was made in fraud of creditors and, hence, gave no title ; but he was not permitted to do so under the 875 § 329 OF PLEADINGS. [PARX II. requires that the suit, with certain exceptions, shall be brought in the name of the real party in interest, and there is some con- flict of authority as to the right of the defendant, under a general denial, to show that the contract upon which it is based does not belong to the plaintifi", and that he has no right to sue. It is held in California, and for the same reason that in that state authorizes proof of payment under a denial, that the defendant may prove upon the trial, although he has simply denied the allegations in the complaint, that the plaintiff had transferred, the demand, and, therefore, has no right to sue.^ But in New York a different rule prevails, and facts which show that the plaintiff is not the real party in interest — as, that the claim has been assigned to John Doe — are treated as new matter, to be specially pleaded.^ In an action for work and labor upon quantum meruit, pleadings. Grlazer v. Clift, 10 Cal. 303, was also an action against a sheriff ty one who claimed to own the goods levied on. Upon a denial, the defendant was not per- mitted to show that the goods had been transferred to the plaintiff by the execution defendant in fraud of creditors. It was held to be new matter, to be specially pleaded. Field, J., cites Piercy u. Sabine, 10 Cal. 22, where Burnett, J., says that "new matter is that which, under the rules of evidence, the defendant must affirmatively establish. If the onus of proof is thrown upon the defendant, the matter to be proved by him is new matter." Perkins, J., in Jenkins v. Lorg, 19 Ind. 28, says : " Under the Code, fraud must be specially pleaded, and the answer of fraud must contain all the elements necessary to be proved to make a fraud." The rule was approved in Farmer v. Calvert, 44 Ind. 209, but it was doubted whether it applied to an issue of property or not in an execution defendant who had sold it in fraud of creditors. But whether so or not, the admission of evidence of the fraud is no error if not objected to at the time, and made a ground for a motion for a new trial. Voris, J., in Corby v. Weddle, 57 Mo. 452, cites the common-law rule " that, where a deed is void ab initio, and not merely voidable, the plea efnon est factum is proper, and the facts showing the instrument to be void may be given in evidence to sustain such plea." The distinction is not taken between evidence which shows that the plaintiff never had a cause of action, although admitting the truth of the facts stated by him, and evidence which contradicts his statements. 1 Wetmore v. City of San Francisco, 44 Cal. 294. ' Jackson v. Whedon, 1 E. D. Smith, 141. The defendant, who was sued for rent, was not allowed to show that the plaintiff was not the real owner of the premises. In Russel V. Clapp, 7 Barb. 482, in pleading that the plaintiff is not the real party in interest, the facts should be stated showing that he is not. In Brett v. First Univer- salist Society of Brooklyn, 68 Barb. 610, the action was by an assignee of certain demands held by the assignor, against the defendants, for money paid out for their use. Under a denial, the defendants attempted to show- that a receiver of the assignor's estate was appointed before the assignment, but was not permitted to do so, the court holding that the ownership of the demands by the receiver should have been affirma- tively stated. Woodruff, J., in Savage v. Corn Exchange Fire and Inland Navigation 376 CH. XVI.] THE DENIAL. § 330 and not upon a specific contract, the value of the work, upon denial, is in issue, and facts may be shown by the defendant going to its value — as, negligence or unskillfulness ;^ or he may show that the services were rendered upon a special agreement to look to the costs bill for compensation ; ^ or, in an action for goods sold and delivered, that he purchased, as agent, upon the credit of his principal.^ In an action for negligence, by which property or the person is injured, the fact that the injury results from the negligence of defendant is put in issue by a general denial, and, hence, he may show affirmatively, under such denial, that the injury arose from some other cause.* § 330. Instances of Facts wMch may not be proved under a Denial. — Keeping in view the logical mle that the new facts which may be proved under a denial are those which show that the plaintiff's statements are untrue, and that facts which are consistent with their truth, but show, notwithstanding, that he has no cause of action, are new matter, to be pleaded, we can seldom be deceived as to what may and may not be thus proved. As we saw in the last section, it is held in most of the states Insurance Company, 4 Bosw. 1, says: "There is no error in rejecting evidence oifered to prove that the plaintiff had assigned his claim before suit brought, and was not the real party in interest. The pleadings did not raise any such question. If the suit was not brought in the name of the real party in interest, the objection was waived by its not being set up as a defense." In Seeley v. Engell, 17 Barb. 830, it is held that a de- nial that the plaintiff is the lawful owner and holder of the note sued on, with no other allegations in regard to the matter, will not admit evidence that he is not such owner. See, also, Tamisier v. Cassard, 17 Abb. Pr. 187. 1 Kaymond v. Eichardson, 4 E. D. Smith, 171, as to services of a mechanic ; Bridges V. Paige, 13 Cal. 640, as to services of an attorney. 2 Schermerhorn !>. Van Allen, 18 Barb. 29. ' Merritt v. Briggs, 57 N. Y. 651. * As, that it was the result of the contributory negligence of the plaintiff (Jones v. Sheboygan & I'ond du Lac R. Co., 42 Wis. 306; Jonesboro & Fairmount Turn- pike Co. V. Baldwin, 57 Ind. 86; Hathaway v. Toledo, Wabash & Western R. Co., 46 Ind. 25 ; Indianapolis & Cincinnati R. Co. v. Rutherford, 29 Ind. 82) ; or, when sued for damages for negligence in opening a ditch, whereby water is let into the plaintiff's premises, he may show that the water came from a defective sewer. Schaus V. Manhattan Gaslight Co., 14 Abb. Pr. (n. s.) 371 ; s. u., 36 N. Y. SuperiorCt. 262. But it is held that proof that the defendant relies upon the act of God as an ex- cuse for the non-performance of a contract is admissible unless the facts be specially pleaded. New Haven & Northampton Co. v. Quintard, 6 Abb. Pr. {n. s.) 128. 377 § 330 OP PLEADINGS. [PART II. that facts showing fraud as a defense, especially in acquiring title to the property claimed by the plaintiff, which title would be good but for the fraud, are new matter, to be specially pleaded. In an action to recover corporation stock owned by the plaintiff, but improperly transferred to defendant, facts which show that the latter was a purchaser for value without notice are new mat- ter, to be specially pleaded.^ A defendant denied the execution of the promissory note in suit, and, under such denial, he was not permitted to prove that it was given for a firm debt, or any arrangement in regard to its payment.^ The rule in regard to the right of defendant to show, under a denial, that there was no con- sideration for the contract in suit, should, upon principle, be this : If the contract imports consideration, as evidenced by a sealed instrument or negotiable paper, or, in some states, by other writ- ings ,** it is unnecessary for the plaintiff either to plead or prove consideration ; and when the defendant is permitted by law to avail himself of the want of it, it is new matter, to be specially pleaded by him. But in actions upon other contracts, the com- plaint or petition must show consideration,* and, upon denial, the defendant may prove the want of it.^ And if the making of the contract in suit is admitted, and its illegality is relied on as a defense, the facts showing such illegality should be ]Dleaded. Thus, the defendant, among other defenses, sought to prove, upon the trial, that the contract was against pubhc pohcy, and > "Weaver v. Barden, 49 N. Y. 286. ' Dunning v. Kumbaugh, 36 Iowa, 566. s Ante, I 267. * See, Ante, §§ 268, 279. ' In Dubois v. Hermance, 56 N. T. 673, held, " that, the agreement being under seal, a consideration "was implied ; and, therefore, the evidence was not proper under the general denial in the petition, as tending to prove a failure of consideration, as, in such case, a defendant must make proper special averment in his answer to enable him to prove failure, wholly or partially, of consideration;" citing Eldridge v. Mather, 2 Comst. 157, and Weaver ». Barden, 49 N. T. 286. In Butler v. Edgerton, 15 Ind. 15, the complaint set out the consideration for the instrument sued on, and it was held that, upon denial, the defendant could prove a want of consideration, and that a special paragraph in the answer setting it out might have been rejected, on motion. In Evans v. "Williams, 60 Barb. 346, the defendant was permitted, under a general de- nial, to prove want of consideration. It does not appear that the complaint showed consideration, and the reasons given for the decision are unsound. 378 CH. XVI.] THE DENIAL. § 331 void, because of certain conditions ; but it was held that such de- fenses were new matter, to be pleaded.^ A sufficient number of instances liave been given in this and the last section to illus- trate and make plain the application of the rule. It will, of ne- cessity, be again referred to in the next chapter, where, in treat- ing of defenses of new matter, I will specially consider certain de- fenses — as, of the statute of frauds, the statute of limitations, and some others. § 331. The Denial should he specific. — Whether the denial be general or special — that is, whether the defendant deny all the plaintiff ' s material allegations , or a part only — it must clearly ■ and unequivocally appear what he intends to deny. He will, ordinarily, admit some of the facts charged, and deny others ; and, unless each one intended to be admitted or denied is spe- cifically referred to, it has been supposed that a doubt may arise as to which he designs to put in issue. Thus, a denial of each and every allegation not therein expressly admitted or denied is not approved, and it is held in New York that, though the issue is not so defectively presented as to exclude evidence supporting the negative, yet the defendant will, upon motion, be required to make the answer more definite.^ I can, upon principle, see no objection to an admission of certain facts and a general denial of all others, provided it distinctly appears what facts are admitted ' and what denied, and so unequivocally that an indictment for perjury would lie upon the denial. It may be more conven- 1 Stanford Paving Co. v. Monheimer, 41 N. Y. Superior Ct. 184. In this case the contract was admitted. QucF7-e : If it had been denied, would the plaintiflF be permitted to prove one unlawful on the face of it? Probably not. 2 G-reenfield v. Massachusetts Mutual Life Ins. Co., 47 N. Y. 430. Such answers are allowed in Youngs v. Kent, 46 N. Y. 672, and in Allis v. Leonard, 46 N. Y. 688. The Code of Civil Procedure of 1876 requires the defendant, when he denies only a part of the plaintiff's allegations, to make the denial specific. Sec. 500. In Minne- sota the statute provides for " a denial of each allegation of the complaint contro- verted " etc., and under it a general denial "of each and every statement and aver- ment, and every part of the same, * * * save as hereinafter stated, admitted, or qualified," is held to be good, inasmuch as "the statute prescribes no particular form of denial, nor does it make any distinction between general and specific denials," and the language is sufficiently certain to clearly indicate the allegations which the pleader intends to controvert. Kingsley v. Oilman, 12 Minn. 515. The doctrine of this case is followed in Becker v. Sweetzer, 15 Minn. 427, and in Leyde v. Martin, 16 Minn. 38. 379 § 331 OP PLEADINGS. [PABT II. ient — it will make a neater record, and present an equally definite issue — to tender it in this way. I will suppose that the drawer of a bill is sued by the payee, who avers the drawing, the presentation upon a certain day, the refusal to pay, and sets out the facts showing due protest and notice. The real controversy is concerning the time of the presentation and of notice. The defendant, in such case, will admit the drawing of the bill, and deny all the other facts which would create a liability on his part. In denying the presentation, it would not do to say that the bill was not presented for payment on the day named, for that would be a negative, pregnant with the affirmative fact that he might have presented it on some other day, and, besides, would present an immaterial issue ; but he must go further, and deny its pre- sentation within any period that would be held to be reasonable. And so with the notice ; the complaint may allege that the plaintifi" on the same day notified the defendant, etc. A denial that he notified him on the same day would also be a negative pregnant, and the denial must be broad enough to put in issue any legal notice. But suppose the defendant, instead of thus specially denying' these facts, adds to the admission as above a general denial of all the facts stated by the plaintiff, not thus admitted ; would not these facts be put in issue just as defi- nitely as though the general denial had been to the whole complaint ? In either case the plaintiff would be obliged to prove a legal presentation and a legal notice, and in the one the same as in the other. ^ A specific denial must be certain and definite as to the fact denied ; thus, a denial of the rendition of service in a certain capacity is not a denial of employment in such capacity.' • The sufficiency of a general denial will, however, in each state, depend upon the phraseology of its statute. The North Carolina Code (J 93) requires that each mate- rial allegation be distinctly numbered, and that the answer shall contain " a general or specific denial of each material allegation." In Schehan v. Malone, 71 N. C. 440, the answer says : " They deny the said complaint, and each and every allegation con- tained therein,'' etc. The answer was held to be sham (frivolous?), which the court should have struck out, on motion. The answer must be co-extensive with the com- plaint, " and contain a general or specific denial of each material allegation which is controverted, distinctly numbered, in a corresponding manner with the allegations of the complaint." See Lewis v. Coulter, 10 Ohio St. 451. " Bryan v. Mayor of New York, 42 N. Y. Superior Ct. 202. 380 CH, XVI. J THE DKNIAL. § 332 § 332. The'Ifegative pregnant. — In treating of the rul6s of pleading as applied to the complaint, allusion was made to a vice which is peculiar to traverses — that is, to such negatives as imply an affirmative. From its nature, this negative will never be found in a general denial, but it is often seen in a special one, when the pleader, in making it, uses the language of the allegation denied. Thus, in the case given by Mr. Stephen,^ in an action of trespass for entering the plaintiff's house, the defendant pleaded that the plaintiff's daughter gave him license to do so, and that he entered by that license. To this the plaintiff replied that he did not en- ter by her license. This traverse is condemned as a species of ambiguity, it being uncertain whether the pleader intended to traverse the entry or the license, and as implying that a license was given. Mr. Gould instances a case^ where a defendant pleads in bar a release made since the date of the writ, and the plaintiff replies that the said supposed writing is not his act since the date of the writ. The replication is a negative pregnant, because it admits by implication a release made before the date of the writ — an equally effectual bar. This imperfect traverse is sometimes seen where one is called on to answer an allegation of several facts connected by the copulative conjunction, and he answers or replies denying them in hcnc verbis, which admits that some of the facts may be true. There is no traverse of any one fact, but of the whole, as connected or happening together.^ But the negative pregnant is oftener seen where the statement contains an allegation of a contract or transaction as made or happening upon a day named, when the time is immaterial and the traverse covers the day. In such case it is doubtful whether the party intends to deny the date merely, or the act or transaction. It is treated as a denial of the former, and the denial is pregnant — to use the language of the old pleaders — with an admission of the latter, and hence there is no good issue. It presents, in a sense, an immaterial issue, although not strictly immaterial, inasmuch as it covers apparently what is material as well, while a strictly immaterial issue is only made by a traverse of that which is im- 1 Stephen's PI. [* 381.] 2 Gould's PI., eh. 6, § 30. » Young u. Catlett, 6 Due^ 437. 381 § 332 OF PLEADINGS. [PAET II. material.' Notwithstanding the provision of the Code requir- ing the courts to be liberal in its construction — a provision sometimes ignored altogether, and sometimes made an excuse for tolerating great looseness and irregularity — there is a special reason, in states in which it is necessary to make oath to pleadings, why a negative pregnant should not be tolerated. No one could be convicted of perjury who should swear to such a denial, as it is uncertain what fact he intended to deny.^ In Minnesota, while a general denial is admitted, yet if one of the allegations be of value, it is held to be a negative 1 Gould's PI., ch. 6, ? 31. ' The authorities upon this subject in the Code states are numerous, although not quite harmonious. In New York the common-law view is held. Kay v. "Whittaker, 44 N". Y. 565. Baker v. Bailey, 16 Barb. 54, gives an excellent illustration of the absurdity of permitting a denial that an event happened at a particular time, when time is not material; and Young v. Catlett, 6 Duer, 437, illustrates the ambiguity of a denial in hcec verbis of several connected facts. The defendant had denied any knowledge "whether or not, at maturity, the said notes were, or either of them, duly presented to the makers for payment, and payment thereof demanded and refused, and, therefore, duly protested, and notice of such presentment, refusal, and protest given to the said," etc Upon this the court remarks: "This is only a denial of knowledge sufficient to form a belief whether these facts or allegations in the com- plaint, taken conjunctively, are true. Had the defendant been answering of his own knowledge, and had, even in absolute terms, denied that the note was presented, and payment demanded and refused, and, therefore, was duly protested, and notice of such presentment, refusal, and protest given, etc., it might still be true, consistentently with the conjunctive denial, that payment of the note was demanded of the makers A denial that A, and B, and C, and D were present on a certain occasion is no denial that B was present, or that A and B were present ; and so as to either. A denial that A went to Rome, and to Egypt, and to Jerusalem, and returned from Jerusalem to New York, is not a denial that A went to Egypt." The court suggested, though did not decide directh', that such a denial put nothing in issue, and the truth of the facts attempted to be denied was admitted. See, also, Blankman v. Vallejo, 15 Cal. 638 • Kuhland v. Sedgwick, 17 Cal. 123 ; CauMeld v. Sanders, 17 Cal. 569 ; Landers v. Bol- ton, 26 Cal. 393. And when there are no conjunctive averments, a denial in the very words of the averment is often held to admit a material part of it. Woodworth v. Kuowlton, 22 Cal. 164 ; Bradbury v. Cronise, 46 Cal. 287. A denial that the defend- ant wrongfully and unlawfully entered upon the premises and closed the windows is an admission that he closed the windows. Larney v. Mooney, 50 Cal. 610. A denial of the exact value alleged is an admission of any less value. Scovill v. Barney, 4 Greg. 288. A denial, in the language of the petition, that the defendant carelessly, negligently, and Wantonly ran over the plaintiff"s mare, is not a denial of the injury complained of. Harden v. Atchison & Nebraska E. Co., 4 Neb. 521. A denial that the defendant wrongfully took and detained the plaintiff's goods is not a denial of the taking or the detainer. Moser v. Jenkins, 5 Oreg. 447. 382 CH. XVI.] THE BENIAL. § 333 pregnant as to such allegation. The statute is si''ent as to whether it should be general or special — the language is, "a denial of each allegation " — but if general, it would seem to be required to be in such form as to be good if each allegation had been specially denied.^ In Missouri and Iowa a negative pregnant is treated as an informality only, and the pleading is not a nullity.^ § 333. Argutaentatlve Denials. — We have already seen' that affirmative facts may be proved under a denial, provided they are facts which tend to disprove the allegations which are denied. They support the denial, inasmuch as the latter cannot be true, because of certain other facts thus proved. Why, then, should not these inconsistent facts be pleaded? The whole case would then be upon the record, and the defense would be seen at once. Under laws of procedure wliich allow or require that the evi- dence be set out in the pleadings, this should be done ; but in ordinary proceedings those laws are foreign to us. The system of common-law pleading — a system which the Code perfects by discarding its technics, its inconsistencies, its fictions, and mere forms — is the only one which conforms to the rules of logical statement. We have before had occasion to notice its character in this regard, and have seen that when a plaintifi" has stated facts which constitute a supposed cause of action, the defendant must do one of three things : He must, by a demurrer, deny the plaintiff's right — that is, the legal proposition involved in his statement; or he must deny the truth of the facts, or some of the facts, stated ; or he must set out other facts which, notwith- standino- their truth, exonerate the defendant. Under this system there is no room for a statement of new facts, except those which suppose the truth of those alleged on the other side — that is, to 1 Dean v. Leonard, 9 Minn. 190; Pottgieser v. Dorn, 16 Minn. 204. In Lynd v. Picket, 7 Minn. 184, the remarli is made that " where a party would controvert an allegation of value, he must allege that the article is of no value, or the value as he claims it to be. Under such an allegation as this the value might be one cent less than alleged in the complaint (i. e., a denial in the words of the allegation), and yet the answer would be literally true." In Wisconsin, see Robbins v. Lincoln, 12 Wis. 1 ; Schaetzel v. Germantown Farmers' Mutual Ins. Co., 22 Wis. 412. 2 First National Bank v. Hogan, 47 Mo. 472 ; JEUis v. Pacific E. Co., 55 Mo. 278 ; Upton V. Knoll, 32 Iowa, 121. a Ante, U 327-329. 383 § 334 OF PLEADINGS. [PAET U. use the language of the pleaders, those which confess and avoid. A statement of facts, by way of defense, which are merely incon- sistent with those stated by the plaintiff, is, in effect, a denial. It is not new matter ; it admits nothing ; it avoids nothing ; it sim- ply contradicts. ■ This is called an argumentative denial — that is, a statement of facts which, arguendo, show that the plaintiff's statement is untrue. It is pleading evidence in support of a denial, and is subject to most of the objections against pleading it in support of an issuable fact. Numerous instances were given, in a preceding section, where affirmative facts are allowed to be proved under a denial.^ In each of these instances it would be improper to plead such facts, and it becomes unnecessary to recapitulate them. The remedy for such denials is hereafter shown,^ but I will anticipate by saying that' the error is not a radical one. If, besides the statement of facts thus subject to objection, as not containing new matter of defense, but only an argumentative denial, there is an actual traverse, the former statement should be stricken out as redundant, or disregarded as surplusage ; but if there is nothing but the argumentative plead- ing, it is subject to correction by motion. § 334. Denials of legal Conclusions. — The impropriety of pleading conclusions of law has been heretofore shown.^ This vice is more frequently met in traverses than in affirmative state- ments. Instead of traversing the statement of the antagonist pleading by directly denying it, or affirming the opposite, the incautious pleader, with his mind fixed upon the liability sought to be imposed upon him, is led to deny the liability, instead of the facts from which it is inferred. This error derives respectability from the illogical character of the pleadings in the action of debt. In connection with the facts upon which he relies, the plaintiff closes the declaration with a conclusion of law drawn from them, and the defendant, by the plea of nil debet, puts in issue the conclusion rather than the facts. Even under the Hilary Eules, substituting for nil debet the plea of nunquam in- 1 Ante, II 327-329. 2 Post, I 425. s Ante, II 210-213. 384 CH. XVI. J THE DENIAL, § 334 dehitatus, the indebtedness is denied, and not the facts. But such illogical pleading is not allowed by the Code. It requires, first, that the plaintiff shall state the facts upon which he relies ; and, second, that the defendant shall deny each allegation to be controverted by him. The allegation controverted must be the statement of a fact ; hence, in making an issue, he has nothing to do with legal conclusions. Thus, a denial that the plaintiff is en- titled to the sum demanded by him, or any part thereof, puts in issue no fact, and is but a denial of a legal proposition.^ So, in a suit by the payee of a note, who alleges that he is the owner and holder, a denial that he is the owner and holder puts nothing in issue.^ The payee, or indorsee, of a note is the prima-facie owner and holder ; the allegation that he is so is unnecessary ; and if the defendant defends upon the ground that the plaintiff is not such owner, he should set up the facts showing title in some one else.^ And so, in an action to foreclose a mortgage, to a charge by the plaintiff that the defendant failed to comply with its conditions by omitting to pay interest, an answer denying that the defendant was in default is a conclusion of law, and is frivolous.* But a denial of a legal conclusion may so indicate the real issue as to be good after verdict, of which we have an instance in the Ohio courts. The statute provided for leasing certain school lands, and for their reappraisement after a cer- tain period, with an increase of rent. The petition stated the terms of the lease as to the reappraisement and additional rent, and alleged that, "in pursuance of said written lease, and according to the statute, etc., the leased lands were, on the 10th day of March, 1854, duly and legally revalued, or appraised, at $55 per acre ; that the total sum of said revaluation amounted," etc., claiming the additional rent. The answer said that the " said revaluation and appraisement was not duly and legally made, according to," etc. It is thus seen that conclusions of law are contained both in the petition and answer ; but the parties ■went to trial without objecting to the pleadings, and a verdict » Drake v. Cockroft, 4 E. D. Smith, 34; s. c, 10 How. Pr. 377. 2 Seeley v. Edgell, 17 Barb. 530. 3 Pleury v. Eoget, 5 Sandf. 646. ' Excelsior Savings Bank v. Campbell, 4 N. Y. Sup. Ct. 549. 385 25 § 334 OF PLEADINGS. [PAKT n. was given for the defendants. The plaintiff claimed a judgment non obstante, upon the ground that the answer tendered no issue of fact. The appellate court, while condemning the pleading, held that judgment should be rendered upon it. The statute to which the pleadings referred was a public one, and the court took notice of its provisions in regard to reappraisement, etc., and they must have been considered in order to help out the averments and the denial. The answer should have been re- formed on motion; but, says Swan, J., "the deduction, or con- clusion of law, in the answer in this case, construed as ordinary language, does, in an indefinite manner, which the other party did not object to, put in issue the fact whether there was any valid appraisement made."^ 1 Trustees v. Odlin, 8 Ohio St. 293. Judge Swan, as shown in his opinions and his treatise upon the Ohio Code, always inclines to a literal construction of the Code in furtherance of justice. 386 CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 339 CHAPTER XVII. Of the Answer, continued. 2. Of the Defense of new Matter. SECTioif 339. New Matter — Its Classification. 340. New Matter of Defense gives Color. 341. Nature of the Admission. 342. Consistent Defenses — The Rule in Equity. 343. Inconsistent Defenses under the Code. 344. Continued — The judicial View. 345. All Defenses should be in the same Answer. 346. As to the Manner of stating several Defenses. 847. Equitable Defenses. 348. Continued — Sometimes embraced in a Counter-claim. 349. Continued — Illustrations. 350. Continued — The View taken by the Courts. 351. The judicial View continued. 352. Defenses — When to be pleaded — The Rule. 353. The Statute of Frauds not to be pleaded. 354. Continued. 355. The Statute of Limitations. 356. Continued — In Ejectment. 357. Payment. 358. Continued — The judicial View. 359. In Libel and Slander — The old Law. 360. The Change made by the Code. 361. The Pleading — 1. The Justification. 362. Continued— 2. In Mitigation. 363. Continued — Must the mitigating Circumstances be pleaded? § 339. New Matter — Its Classification. — The answer, " sec- ond, may contain a statement of any new matter constituting a de- fense or counter-claim, in ordinary and concise language, without repetition." In considering the statement of new matter in an answer, it becomes unnecessary to speak of the general rules gov- erning the statement in a pleading. The rules, heretofore con- sidered, in regard to the stating part of a complaint apply as 387 § 339 or PLEADINGS. [part II. well to the statement of new matter in an answer or in a reply. They are rules of pleading, and apply to all statements where, from their nature, they are applicable ; and in this connection I shall speak only of such things as pertain exclusively to answers,^ The new matter is spoken of as constituting, first, a defense ; and, second, a counter-claim. The two things are radically different, for the defense goes only to the plaintiff's cause of action, and a statement of new matter constituting a defense is but a statement of facts which do not appear in the plaintiff's pleading, and which show that, notwithstanding the facts stated by the plaintiff, he has no right of recovery. A counter-claim, on the other hand, is an independent cause of action which the defendant has against the plaintiff, and which might have been prosecuted had the plaintiff not commenced his suit, and which in no way affects the plaintiff's cause of action. The two will be considered in their order. And in speaking of special defenses I will, first, give cer- tain rules which can only apply to them ; and, second, will treat specifically of certain defenses which must be specially pleaded, distinguishing between them and those facts , apparently new which may be proven under a denial, ' In Missouri it has been held that, in pleading fraud as a defense, a general allega- tion as a conclusion of law is sufficient, and that the facts constituting the fraud need not be stated. Edgell o. Sigerson, 20 Mo. 495, which followed some authorities in common-law pleading. If this decision is correct, then the rules of statement as ap- plied to complaints or petitions do not apply, so far at least, to answers. But this view is not sustained elsewhere. The ruling in New York has uniformly been that, in pleading fraud, the facts which are relied on as constituting the fraud must be set out, as in pleading other new matter, that the court may see whether there was such fraud as will avail the pleader. McMurray v. GifTord, 5 How. Pr. 14 ; Leler v. Field, 52 N.T. 621 ; Dubois v. Hermanoe, 56 N. Y. 673. The same view is taken in California: Gushee v. Leavitt, 5 Gal. 160 ; Oroville & Virginia E. Co. v. Plumas County, 37 Gal. 354 J Capuro v. Builders' Ins. Co., 39 Cal. 123 ; Triscony v. Orr, 49 Cal. 612. In Indiana : Keller v. Johnson, 11 Ind. 337 ; Jenkins w. Long, 19 Ind. 28 ; Curry v. Keyser, 30Ind. 214 ; Ham v. Greve, 34 Ind. 18 ; Joest v. Williams, 42 Ind. 565. In Iowa : Hale v. Walker, 81 Iowa, 344. " Pleadings must state facts, and not legal conclusions ; and fraud is never sufficiently pleaded except by the statement of the facts upon which the charge is based." Beck, J., in Ockendon v. Barnes, 43 Iowa, 619. In common-law pleading, fraud, in a replication, might be stated in general terms. Durand v. New Haven & Northampton Co., 42 Conn. 211. In Chitty, the precedents of pleas of fraud set out the facts. 3 Chitty's PI. 963. In a replication to a plea of release the allega- tion of fraud is general. 3 Chitty's PI. 1158 ; and see 1 Chitty's PI. 582. But it was early held in New York, under the Code, that a general reply per fraudem was a mistake. Anderson v. Johnson, 3 Sandf. 1. 388 CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 341 § 340. New Matter of Defense gives Color. — In ordinary actions, it is difficult to perceive how one can allege new facts showing a non-liability that do not impliedly admit a liability but for such facts; hence the term "new matter in confession and avoidance," so generally applied to special defenses. Thus, if, to an action upon contract, one sets up infancy, coverture, release, fraud, etc., he seems to admit the contract in avoiding its obligation. So, in trespass, for an assault, etc., a justifica- tion by warrant admits the assault. This was called giving color ; and, says Chitty,^ "the plea in avoidance must, therefore, give color to the plaintiff — that is, must give him credit for having an apparent, or prima-facie, right of action independently of the matter disclosed in the plea to destroy it." The books upon common-law pleading make various distinctions in regard to color: as, where one admits the plaintiff's original right by pleading matter in discharge — as, payment or release ; or when the right is implied by matter which justified the action com- plained of, but which still gave the plaintiff a color of right — as, possession in a plea of Uberum tevementum; or, if no such color was given, it became necessary for the pleader to give express color by some fictitious matter which gave the plaintiff an apparent, but not a real, right.^ New matter, in general, which gave no color went only to the denial of the plaintiff's claim, and the pleading was bad as amounting to a traverse. So far as the doctrine of color was technical and artificial, it is swept away ; but the general proposition that a defense of new matter admits a real or an apparent right, to be thus avoided, springs from the nature of pleading and the necessities of logic. § 341. ]Vature of the Admission. — There is no confession in terms — it is only implied from the nature of the defense ;^ nor is it necessarily an absolute one. When there is no denial, the truth of the statement may be said to be implied, either abso- lutely — and the liability avoided by new matter operating by way of discharge — or by setting out facts that show that there 1 Vol. 1, p. 527. 2 1 Chitty's PI. 526-532 ; Stephen's PI. [* 200] et seq. 8 Morgan v. Eawkeye Ins. Co., 37 Iowa, 359. 389 § 342 OF PLEADINGS. [PAET II, never -was a liability. If, however, there was an absolute admis- sion upon the record, there could be no accompanjdng denial. Traverses and answers in avoidance may go together, at least when not inconsistent, as we shall presently see. The confes- sion, then, must be qualified ; and such are the old precedents. Thus, Mr. Chitty alludes to the contract to be avoided as " the said supposed contract," ^ or " the said several supposed debts and causes of action," ' or " the supposed escape." ^ The admission or confession of the fact is but a logical one, made for the pur- pose only of showing that, notwithstanding the statement may be true, yet, because of other facts stated, the defendant is not liable ; as if, in answering a forensic argument, one should sup- pose the statement of his opponent to be true, and yet allege other facts which show that the conclusion does not follow. § 342. Consistent Defenses — The Rule In Equity. — Ac- cording to the liberal policy of the law, as first shown in the statute of Anne, the codes of all the states authorize the defend- ant to make as many defenses as he may have, and the most im- portant question that arises in reference to that permission per- tains to its extent — whether it is so general as to relieve the defendant from the obligation to tell the truth, as to authorize him to make inconsistent defenses, and such that some must nec- essarily be untrue. And, to aid in the solution of this question, it is well to consider the rule in equity practice from which so much has been borrowed. Mr. Daniel* thus briefly states the rule: "Although a defendant may be permitted to set up, by his answer, several defenses as the consequence of the same state of facts, or of facts which are consistent with each other, a de- fendant cannot insist upon two defenses which are inconsistent with each other, or are the consequence of inconsistent facts. And, in the application of this rule, it makes no difference whether the inconsistent defenses are each substantially relied upon, or are set up in the alternative ; that answer is bad which either 1 3 Chitty's PI. 956. ■^ Ibid. • 8 Ibid., 957. • Dan. Eq. Pr., 4th Am. ed., 713, 714. 390 CH. Xyil.] OF THE DEFENSE OF NEW MATTER. § 343 contains inconsistent defenses or an alternative of inconsistent defenses." And, again: "Althougli a defendant cannot, by his ajtiswer, set up, in opposition to the plaintiff's title, inconsistent defenses in the alternative, he will not be precluded from deny- ing the plaintiff's general title, and also insisting that in case the plaintiff establishes his title, he is precluded from recovering by some other circumstances which would equally serve to pre- clude him or any other person in whom the title might be actu- ally vested. Thus, in a tithe suit, the defendant might have de- nied the plaintiff's title as rector or vicar, and at the time have set up a modus. ^^ The equity rule is stated by Walworth, Ch.,^ who says that a defendant "cannot set up two defenses which are so inconsistent with each other that if the matters constituting one defense are truly stated, the matters upon which the other defense is attempted to be based must necessarily be untrue in point of fact. But the defendant may deny the alle- gations upon which the plaintiff's title to relief is founded, and may, at the same time, set up in his answer any other matters not wholly inconsistent with such denial." § 343. Inconsistent Defenses under the Code. — The rule against inconsistent defenses in equity necessarily arose, first, from the fact that the proceedings, in theory at least, were not, regarded as a mere passage at arms, for the purpose of showing the skill of the contestants, but were aimed at the develop- ment of the truth, and for a kindred reason, that the answer was sworn to, and hence no pleading was tolerated evidently untrue, even in part. The first reason has now. the same force as ever. As I have so frequently stated, the leading object of the pro- visions of the Code in regard to pleading is to bring to the view of the court the real controversy between the parties — to make them show on paper wherein they agree and wherein they disa- gree. The equity practice differed only in permitting the answer to be used as evidence, which may be an additional reason for requirino- it to be truthful. But the other reason should forbid any false moves or experimenting upon the record. And when 1 In Hopper v. Hopper, 11 Paige, 46. 391 § 344 OF PLEADINGS. [PAET H. to that is added, in many of the states, the requirement that the answer shall be sworn to, it would be a gross departure from principle to permit the affiant to file a pleading false upon thfe face of it. This view assumes that defenses are inconsistent only when one, in fact, contradicts the other, and has nothing to do with a seeming and logical inconsistency, which arises merely from a denial and a plea in confession and avoidance. Such a jalea may sometimes properly be made in connection with a de- nial, as it may be true, in fact, that one never assumed the obliga^ tion sued on, and was an infant, or a feme covert, at the time it was claimed to have been entered into. It is only the inconsist- ency spoken of in the last section that is condemned ; and such has been the general, almost the uniform, judicial ruling. § 344. Continued — The judicial View. — I have said that the general ruling has been consistent with the equity doctrine, and with the Aaew taken in the last section. In a few cases, which need not be cited, it seems to have been supposed that any an- swer of new matter as being a confession and avoidance is in- consistent with a denial, and that both will never be allowed. That, however, is not the approved view. The subject has been elaborately considered in California, and, as to verified pleadings in a case where a denial and new matter were allowed, the court admitted that if the truth of a fact is directly averred in any part of a pleading, and contradicted or denied in another part, the pleader would be guilty of perjury, for both cannot be true. But the court distinguished between such cases and those where the averments are not directly contradictory, and can only be called so by implication of law, and gave many illustrations of special defenses that were consistent with a denial.^ In no other case is the question so fully discussed in California, but it was after- wards held that in ejectment the defendant may deny the plaint- iff's title and plead the statute of limitations ;^ and in another case the court went further, and permitted a defendant in eject- ment to deny being in possession of the premises and withhold- ing possession from the plaintiff, and to further allege that the 1 Bell V. Brown, 22 Cal. 671. » Willson u. Cleaveland, 30 Cal. 192. 392 CH. XVII.] OF THE DEFENSE OP NEW MATTEE. § 344 property belonged to the United States, and that defendants were in possession as its agents and servants, being light-house keep- ers.^ In other states two or more defenses have been allowed sometimes called inconsistent, but where there is no such incon- sistency as to necessarily render one of them untrue — as, in an ac- tion for slander in charging perjury, a denial and justification ;^ or, for slander in charging larceny, a denial and an averment that the words which were spoken referred to a trespass committed by the plaintifi", and not to a larceny ; ' or, for slander in charging the plaintiff with cheating, an answer averring that the defendant had no recollection of so charging him, but if he did, the charge was true — was sustained by a majority of the court.* The general doctrine is recognized as applied to a denial of the making of a note, joined with a plea of infancy, the court holding that to such denial the defendant might allege that, at the time of the alleged making of the note, he was an infant ;^ and the court, in another case, refused to strike out one of the defenses, giving as a rea- son that the answer does not afford sufficient internal evidence of the falsity of the denial.* In Minnesota the statute of limitations, and a full settlement and satisfaction of the demand in suit, are held not to be inconsistent defenses,' while a denial of the taking of the goods sued for, and a justification under process, are held to be inconsistent, as the taking is expressly admitted ; ^ and the defendant, in another case, was compelled to elect between a 1 Buhne v. Corbett, 43 Cal. 264. In this case the court refers to the two former as authority, but the defenses would seem to be inconsistent in fact, and the cases cited do not sustain the decision. 2 Weston V. Lumley, 33 Ind. 486. » Hollenbeck v. Clow, 9 How. Pr. 289. Harris, J., in this case refers to the chan- cery rule, and says that "the power of the court to require a defendant to elect be- tween defenses alleged to be inconsistent should be limited to cases where the several defenses contain matters so inconsistent that the proof of one would necessarily dis- prove the other. * Butler V. "Wentworth, 9 How. Pr. 282. I^ucere as to the mode of justifying in this case. 6 Mott V. Burnett, 2 E. D. Smith, 50. « Smith V. Wells, 20 How. Pr. 158. More recently, in Bruce v. Burr, 67 N. T. 240, the Court of Appeals held that the objection of inconsistency to defenses was not available, and to meet this ruling the new Code of 1876 (g 507) expressly provides that defenses or counter-claims must not be inconsistent with each other. ' Conway v. Wharton, 13 Minn. 158. » Derby «. Gallup, 5 Minn. 119. 393 § 345 OP PLEADINGS. [PAKT II. defense that tKe contract in suit was revoked and annulled, and another that it was modified.^ In Ohio it is held, in a recent case, that the defendant in an action upon a promissory note may deny the execution of the note, and, by an additional defense, allege that, if the signature was his, it was obtained by a fraudulent and cunningly devised scheme or trick, without his knowledge, setting out the facts to show how the signature was obtained.^ In Mis- souri, after the general sfnthority to make several defenses, the statute speaks of them as " consistent defenses," and it is held that this means no more than the consistency in fact required in equity pleadings.^ § 345. All Defenses should be in the same Answer. — In common-law pleading we have the rule that ' ' pleas must be pleaded in due order;"* that is, that dilatory pleas must be first made and disposed of, to be followed by pleas in bar. The ' Cook V. Finch, 19 Minn. 407. ' Citizens' Bank v. Closson, 29 Ohio St., 78. Justice "Welch -well states the general doctrine : " The Code allows a defendant to set forth in his answer as many grounds of defense, counter-claim, or set-off as he may have, and it contains no limitation upon the privilege except what is implied in the provision that the pleadings shall be verified by oath. There is no provision requiring the several grounds of defense to be technically consistent with each other, or requiring an express admission of the truth of averments sought to be avoided by new matter. It is merely required that the answer be verified by oath. "When two alleged grounds of defense plainly contra- dict each other, they are not susceptible of verification, because it is impossible for both to be true. The verification of one is the falsification of the other. In such case the answer, though sworn to, is not verified, and should, on motion, be stricken from the files, or the defendant be put to his election." ' Nelson v. Brodhack, 44 Mo. 596 ; aflSrmed in McAdow v. Eoss, 53 Mo. 199. The following language is used in Nelson v. Brodhack : " Some interpretation of the term ' consistent defenses ' should be adopted, if possible, that shall be consistent with the statute and secure the right of full defense. That right will be secured if the consist- ency required be one of fact merely, and if two or more defenses are held to be incon- sistent only when the proof of one necessarily disproves the other. Two statements are not inconsistent when both may be true. Thus, when one has paid or performed a forged, or unauthorized, or altered promissory note or covenant, he may deny, not the existence of the paper, but that it was his promise or deed; and also aver its pay- ment or satisfaction. But under our system the fact^ should be so set out that both defenses may be true. So, in slander, for charging one with being a thief, the defend- ant may deny the words, and add the actio non because the plaintiff stole a horse. Proving the larceny does not prove the speaking the words. The logic of the justifi- cation * * * might be held to admit the act justified, yet there is no inconsist- ency in the facts." ' « Stephen's PI. [* 430]. 394 CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 345 Code requires the defendant either to demur or answer, and in his answer he may set up as many defenses as he may have. Only one answer is contemplated, and all the defenses which he has, or which he elects to make, must be embraced within it. Matter in abatement is as much a defense to the pending action as matter in baf , and to say that the defendant may reserve the latter until a trial shall have been had upon the issues in regard to the former would interpolate what is not in the statute — would be inconsistent with its plain and simple requirements. At first the courts did not seem to perceive the change which had been made in this respect, and adhered to the common-law rule ; but, with few exceptions, in all the Code states where the subject has been considered, they now require the defendant, in his one answer, to make every defense upon which he proposes to rely, and no longer regard the old rule, that a plea to the merits waives matter in abatement, provided the matter in abatement is pleaded at the same time. This view was early taken in the Superior Court of New York City,^ while a contrary one for awhile pre- vailed in the Supreme Court. ^ But the latter court soon over- ruled its former decisions, and, upon careful consideration, followed Bridge v. Payson ;' and the matter is set at rest in New York by two cases in the Court of Appeals in which the distinc- tions between defense in abatement and in bar, so far as the time of making them is concerned, are held to have been abolished by the Code, and that it is the defendant's duty to unite in the same answer a defense founded on a defect of parties, and other dila- tory matters, with defenses upon the merits.* In the Supreme Court of Indiana the same ruling has been had, overruling some 1 Bridge v. Payson, 5 Sandf. 210. 2 Gardiner v. Clark, 6 How. Pr. 449 ; King v. Vanderbilt, 7 How. Pr. 385. 3 Mayhew v. Robinson, 10 How. Pr. 162, where it is held that a defense of defect of parties should be made in connection with answers in bar. * Swett V. Tuttle, 14 N. T. 465, as to defect of parties ; Gardner v. Clark, 21 N. T. 399, as to plea of former suit pending. In the last case, and in reference to the incon- venience of passing upon dilatory and meritorious issues in the same trial, Selden, J., for the court, says that it is the duty of the trial judge, in charging the jury, to distinguish between the different classes of defenses, and direct a verdict to be found upon each defense, in order that the judgment, if against the plaintiff, may be ren- dered in abatement merely, or in bar. 395 § 346 OF PLEADINGS. [PAET II. of the earlier cases ;^ and the doctrine is the same in Wisconsin.^ In Missouri and Oregon a contrary view has been talcen. In two late cases in the former state the court affirms the common-law doctrine that defenses in abatement are waived by setting up a defense upon the merits, although contained in the same answer;' and in Oregon the court holds that " answers in the nature of pleas in abatement should now, as . formerly, be pleaded and determined before an answer to the merits is interposed."* This question is settled in Iowa by statute, which provides that " mat- ter in abatement may be stated in the answer or reply, either together with or without causes of defense in bar, and no one of such causes shall be deemed to overrule the other ; nor shall a party, after trial on matter in abatement, be allowed in the same action to answer or reply matter in bar."* § 346. As to the Manner of Statement. — "They [the de- fenses] must each be separately stated, in such manner that they may be intelligibly distinguished, and refer to the cause of action which they are intended to answer." In some of the states it is made the defendant's duty to number the defenses, but otherwise the statutes do not substantially vary from the above. No par- ticular language or technical formality is required. It would be sufficient to say, <'and for further and additional defense;" or, " for further and second defense to the plaintiff's first cause of action," or second cause of action, as the case may be, "the ' Thompson v. Greenwood, 28 Ind. 327, followed in Bond v. "Wagner, 28 Ind. 462. ' Freeman v. Carpenter, 17 Wis. 126 ; Dutcher v. Dutcher, 39 Wis. 651. ' Rippstein ». St. Louis Mutual Life Ins. Co., 57 Mo. 86 ; Pordyce v. Hathorn, 57 Mo. 120. In neither of these cases is the subject discussed in the opinion, but refer- ence is had, as authority, to Cannon v. McManus, 17 Mo. 345, which was a statutory action of attachment, and in which the court held that a defendant could not deny the facts set out as grounds of attachment, and at the same time plead to the merits. The statute was passed in 1845, several years before the adoption of the original Code, and provided that the defendant in attachment may file a plea, in the nature of a plea in abatement, putting in issue the truth of the facts alleged in the afBdavit upon which the attachment was sued out, and the court held that this issue must be decided before any defense upon the merits. No reference was had to the Code, nor do its provisions seem to have been considered, in the cases found in 57 Mo. * Hopwood V. Patterson, 2 Oreg. 49. 6 Code Iowa 1873, § 2732. 396 CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 346 defendant says," etc. It would be an excellent practice for the pleader, whether the numbering is required or not, to head each defense with something like the following: "Third defense to plaintiff's second cause of action ; " or, "second defense to plaint- iff's first cause of action ; " as the case may be, yet it will be suf- ficient if the additional defense is so stated as to leave no doubt that the pleader intends it to be distinct from the others, and that it refer unequivocally to the cause of action to which he in- tends it to apply. This requirement to state each defense sepa- rately is substantial as well as formal. It involves the obligation to embody in each statement every fact which is necessary to constitute the defense.^ The rule has been stated in the Supreme Court of New York, as follows : ' ' By the well-settled rules of pleading, each answer must of itself be a complete answer to the whole complaint, as perfectly as if it stood alone. Unless in terms it adopts or refers to matter contained in some other answer, it must be tested, as a pleading, alone by the matter itself contains . " * A reference to land described in a former statement — as, " said tract of land hereinbefore described " — is insufficient, and the statement is demurrable.' In an action upon a promis- sory note, a defense setting up a collateral agreement going to a partial failure of consideration, which does not describe the con- sideration, but purports to adopt and make as part of it the whole of a former statement in which it is set out, and alleges, in addi- tion, the facts showing such partial failure, is radically defective.* 1 The Iowa Code, which, so far as regards practice and pleadings, conforms less to the New Tork Code of Procedure than do the practice codes of most of the states, expressly provides for this complete statement, as follows : "Sec. 2667. Each affirma- tive defense shall he stated in a distinct division of the answer, and musi be suffi- cient in itself, and must intelligihly refer to that part of the petition to which it is in- tended to apply." Same, Code Iowa 1860, 2 2882. See National Bank of Michigan v. Green, 33 Iowa, 140. 2 Baldwin v. United States Telegi-aph Co., 54 Barb. 517. 3 Knarr v. Conaway, 42 Ind. 260. " Potter V. Earnest, 45 Ind. 416. The court, per Osborne, J., says : " The third para- graph of the answer was clearly had. It contains no allegation concerning the con- sideration for which the note was given. It was not sufficient to adopt the averments in the second. The facts could only become a part of the paragraph by setting them out by averments; " citing Mason v. Weston, 29 Ind. 561; Day v. Vallette, 25 Ind. 42 • and Leabo v. Detrick, 18 Ind. 414. In Mason v. Weston, a reference to a former Tjaraffraph is described as " no averment at all." 397 § 347 ■ OF PLEADINGS. [PAKT 11. According to the Indiana authorities, the qualification given in the New York Code, allowing a reference to a former statement, as uncalled for in the given case, should not be regarded; and if any fact before stated is material to the defense which is being pleaded, it should be again stated as though wholly new. Sup- pose that part of the answer containing the matter thus referred to should be stricken out, what would become of the reference ? § 347. Equitable Defenses. — It is one of the marvels in the history of jurisprudence that, for hundreds of years, a defend- ant to whom the law gave a complete defense in a given action was not permitted, in a class, and very common class, of de- fenses, to make them in the court in which the suit was brought, but was driven into another court, and there required to com- mence another and more complicated suit, to give security to pay whatever judgment might have been, or might be, obtained in the first proceeding, and to enjoin such proceeding until the last court could pass upon the propriety of the defense. It was considered a great innovation when the same judges were per- mitted to preside in both courts ; and this permission more clearly showed the unreasonableness of the requirement — for, if the same court tries both questions concerning the same cause of action, why not try them together? This, with other anomalies in our system, has been swept away. In England, equitable defenses are now allowed in legal actions, and, in the system we are now considering, it is expressly provided that ' ' the defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both." In an early case arising under the Code,^ the action being upon a judgment, and one of the defenses being fraud, Allen, J., says : "The intention of the Legislature is very clear that all controversies respecting the subject-matter of the litigation should be determined in one action, and the provisions are adapted to give effect to that intent. Whether, therefore, fraud or imposition in the recov- ery of a judgment could heretofore have been alleged agaiast ' Dobson V. Pearce, 12 N. Y. 156. 398 CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 348 it collaterally or not, it may now be set up as an equitable defense to defeat a recovery upon it. Under the head of equi- table defenses are included all matters which before would have authorized an application to the court of chancery for relief against a legal liability, but which at law could not have been pleaded in bar." § 348, Continued — The Defense sometimes embraced in a Counter-claim. — The statute authorizes a defendant to make equitable counter-claims, as well as defenses. The distinction between them must never be lost sight of. A defense goes only to the plaintiff's right; a successful one shows that he has no right of action, and it only affects the defendant by protecting him from a judgment in the given case ; it gives him no affirma- tive relief. But a counter-claim is a demand existing in favor of the defendant, against the plaintiff, and one which he might have prosecuted although the plaintiff had brought no action. When the special defense is of a legal nature, so called, or when the defendant makes a legal counter-claim — the new matter is either one or the other ; the same facts, in such case, can hardly show that the plaintiff has no cause of action against the defendant, and that the defendant has a cause of action against the plaintiff.^ But, on the other hand, the equitable defense frequently grows out of the counter-claim — exists only because, in the given case, the defendant has an equitable right of action against the plaint- iff ; and this equitable right must be established, or there is no defense. So often does the latter depend upon the former, that it has been sometimes supposed that in no case can one make an equitable defense unless he establish his demand for, and secure, his equitable relief. The cases do not go so far, but it is clearly established, and upon sound principle, that in a large class of cases the defense exists only by virtue of the defendant's affirmative demand, by successfully establishing it under the rules that would govern its presentation and prosecution in 1 When property sold with warranty proves utterly worthless, the purchaser, if sued for the price, may defend as for want of consideration, or he may counter-claim for damages, which may exceed the price. In the former case the right to defend may depend upon the warranty ; for, otherwise, he might he held to have purchased at his own risk. This, however, differs from the case hereafter spoken of in the text. 399 § 349 OF PLEADINGS. [PAET II. courts of equity, and some of them refuse to permit the defend- ant to avail himself of the facts as a defense unless he also prosecute to judgment such demand. But this prosecution can, upon principle, be insisted on only when an affirmative judgment in favor of the defendant becomes necessary in order to establish his defense, when, without it, its allowance would violate some well-settled principle of law. § 349. Illustrations. — One is sued upon a written agreement, and, according to its terms, the liability is clear. But the de- fendant insists that there was a mutual mistake in reducing the contract to writing, and that, as it was actually made by the parties, there is no liability. According to the well-settled prin- ciples of law, the writing is the highest and best evidence of the agreement, and, in a proceeding to enforce it, no parol evidence will be permitted to vary its terms, to show that it was different from that which is embraced in the writing. This rule of law is as obligatory upon the courts in equitable as in legal proceedings. But the equity courts early assumed the right, never possessed by the courts of law, to reform written instruments when, by mistake, accident, or fraud, they failed to express the intentions of the parties ; not that they could collaterally treat a writing as erro- neous, enforce it, or otherwise, not as written, but as it should have been written, but by a direct proceeding and by an affirma- tive decree they would reform — that is, would make the instru- ment read as the parties, when it was drawn, intended it should read. Under the Code, instead of being comijelled to resort to an original equitable proceeding, the defendant, when sued upon the agreement, may seek the reformation by means of an equitable counter-claim. There can be no reform in the supposed case until the counter-claim is established, and a judgment accordingly. By a direct proceeding in the nature of a cross-bill, the defendant obtains an order reforming the instrument ; until it is reformed, it is the only evidence of the contract ; after it is reformed, it shows that the plaintiff has no cause of action founded upon it ; hence, it is reasonable to say that in such case there can be no defense until the instrument is reformed — until the defendant has obtained an affirmative judgment upon his counter-claim. 400 CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 350 And so in ejectment. The legal title is generally treated as evidence of its holder's right to possession, and in an action by him the defendant may interpose an equity. If it be such an equity as negatives the plaintiff's right of possession — as, of itself showing that the defendant is rightfully in, or that the plaintiff has no right to enter — then it is a defense merely, and no affirmative relief need be sought. But in case the defendant holds under a contract which does not of itself give him the right of possession, but does give him the right to demand a conveyance from the plaintiff, then his right to continue in pos- session — his defense — depends upon his ability to establish his right to the conveyance. That must be sought by a counter- claim, as formerly by a bill for specific performance, and the defense is dependent entirely upon his success in prosecuting such counter-claim. In this, as in the preceding case supposed, there is, properly so called, no defense ; and in the old proceed- ings none was interposed. It was necessary for the defendant to go into another court, to enjoin the legal proceedings until his bill should be disposed of, and the plaintiff was defeated, if at all, not by a defense, but by a decree in the affirmative action. And so, in effect, under the Code. The judgment upon the counter-claim destroys the plaintiff's right of action, to which, otherwise, the defendant might have no defense. In the reported cases it does not always appear upon what principle a counter- claim, and relief under it, are sometimes held to be essential to the equitable defense and sometimes not. The question is raised, but the reasons governing its decision are meagerly given, or not at all. It would, however, seem that a counter-claim and a judg- ment giving affirmative relief should only be considered essential to the defense where such affirmative judgment operates to de- stroy the plaintiff's right of action, or furnishes of itself the o-rounds of defense, and when without it there could be no defense. § 350. The View taken by tlie Courts. — I find the general judicial view in harmony with the one just stated, although there are some cases inconsistent with it, and in no case do I find a clear statement of the principle. In Wisconsin an action was 401 § 350 OF PLEADINGS. [PART II. brought for the possession of certain chattels, showing a right of possession by virtue of a certain mortgage. The defendant al- leged a mistake in the instrument, and that, as it was intended to be drawn, the debt was not yet due, but asked for no correction. The court said : " The method, is not to prove the mistake in an action at law, and have the same benefit as though the instrument had been reformed, but it is to bring an equitable action to re- form the instrument so that it can have its proper legal efiect. • * * Equity aids in such case by reforming the contract, not by giving ejHTect to it without being reformed." ^ In the Supreme Court of Indiana, in an action for the conversion of crops, the answer having set up a mistake in a conveyance by the defend- ant, in omitting a reservation of the crops, Frazer, J., says: "When a mistake in a deed or written instrument is relied on, the pleading should go further than in this' case it did. It should have prayed affirmative relief; that the instrument be reformed so as to show the contract intended to have been embodied in it, and that, when so reformed, it might be allowed as a bar to the suit, or to so much thereof as it would bar. This might be done by an answer in the nature of a cross-bill in equity." ' I find two recent cases ^ in which the Supreme Court of New York, at general term, Talcott, J., dielivering the opinion in both cases, carried the, above view to its legitimate results. The actions were for the possession of land, and the defendant in each case relied upon mistakes in former conveyances made by persons who were not parties to the action. The defense was disallowed be- cause the proper parties were not before the court. The decis- ions were based upon the ground that it was necessary for the de- fendant to make precisely such a case, both as to facts and par- ties, as though they had filed bills in equity for the reformation of the deeds. In Cramer v. Benton it is intimated that it may not be absolutely necessary that a judgment reforming the instru- ' Follett u. Heath, 15 Wis. 601. The criticism upon this opinion is that it seems to contemplate the necessity of an original bill to reform the instrument as under the equity practice. 2 Conger v. Parker, 29 Ind. 380. = Cramer v. Benton, 60 Barh. 216 ; Hicks o. Sheppard, 4 Lans. 335. Cramer v. Benton is affirmed in 56 K Y. 638. 402 CH. XVII.] OF THE DEFENSE OP NEW MATTER. § 351 ment be procured, if the defendant is content to waive it, inas- much as a judgment that he recover will give him title, which is not always true.^ In another case in the Supreme Court ^ it ap- pears from the syllabus, the facts and opinion not being reported, that the court held that a defendant in ejectment who objects to the defendant's paper title, as founded upon a conveyance which by mistake embraced the land in controversy, might ask to have the deed reformed, or might make his defense without claiming equitable relief. The authority cited is Dobson v. Pearce,' which only decides that an equitable defense may be made to a legal ac- tion. In the New York Court of Appeals I do not find that, in the class of cases now being considered, the specific question has been discussed, although Cramer v. Benton is affirmed without comment ; * and there are other cases where the answer contained equitable defenses and counter-claims.* § 351. The judicial View continued. — In the cases hitherto considered, the equitable defense was based upon a mistake in some instrument of writing. Generally, a reformation of the mistake is sought, as the only basis of the defense, although it has not always been held to be necessary. The other class of 1 See, also, Maher v. Hibernia Ins. Co., 67 N. Y. 283. 2 Hoppough V. Strubble, 2 N. T. Sup. Ct. 664. » 12 N". T. 156. * 56 N. T. 638. ^ In Bartlett v. Judd, 21 N. T. 200, a sberiff' s deed had by mistake embraced more land than had actually been sold. Fourteen years afterwards the purchaser brought ejectment for the land thus erroneously embraced, and the defendant set up the mis- take and obtained a reformation of the deed. In Pitcher v. Hennessey, 48 N. Y. 415, the defendant's liability depended upon the construction of a contract. Before it was reduced to writing, the parties had agreed upon its terms, but the instrument con- tained a loose general phrase, supposed to embrace the agreement in an important particular, but which was held not to do so. The defendant was allowed to show what the agreement was understood to be, and to ask for a reformation of the paper. In Crary v. Goodman, 12 N. Y. 266, the defendant in ejectment had alleged, and offered to prove, that the land in dispute was intended to be embraced in a conveyance to his landlord, but its description was omitted by mistake. It was held to be a good equitable defense under the Code of 1848, upon the authority of Dobson v. Pearce ; but no question was raised in regard to the pleading. In Andrews v. Gillespie, 47 N. Y. 487, the court, in an action to foreclose a mortgage, brought by the assignee of the mortgagee, sustained an answer setting up a mistake in the mortgage as regards the time of payment, and asking for a reformation of the instrument. 403 § 351 OF PLEADINGS. [PAET II. cases to which reference has been made is when the owner of the legal title to land brings ejectment against the holder of an equity, and the equitable right to its continued possession arises from a contract of purchase. I am speaking of ejectment under the Code, and not of the common-law action, where the legal title prevails. When the effect of such contract is to give the defendant a right to the possession which he has taken under it, and when the time for payment and the conveyance has not ar- rived, the equity can only be interposed as a defense ; there is nothing as yet upon which to base a counter-claim. And even if the defendant, by the expiration of the time named, and by the performance of the conditions on his part, has become entitled to a conveyance, it would seem that he need not insist upon it, provided his right to possession continues under the contract. He might, perhaps, in such case, be permitted to interpose his contract as a defense merely, or may, at his option, demand its specific performance ; although the former is denied.^ But it may be that the contract does not give him a right to the posses- sion, while he has a right to a conveyance ; or, he may have for- feited such right and still may not have forfeited his equity ; in either case his equity is but a right to a conveyance, and he can only protect himself by a counter-claim asldng for a specific per- formance. In a case before the New York Commission of Ap- peals, the assignee of a vendor who held by contract had obtained the legal title and brought ejectment. The defendant set up a contract with the assignor, and asked for specific performance. Dwight, Comr., says : "At law, the defendant would, of course, have no defense. Under the Code he may set up his equitable defenses. The true view is that the defendant may set up, as an answer to the action of ejectment, the same equitable right to which he would have been entitled had he been a party to an action for specific performance. The result is, had S. (the as- signor) brought the present action, the defendant would have had a right to set up the facts as entitling him to a judgment for specific performance, and such judgment should have been given in his favor ; " the opinion going on to show that the defendant ' In Dewey v. Hoag, 15 Barb. 365. 404 CH. XVII.] OP THE DEFENSE OF NEW MATTER, § 351 has the same right against the present plaintiff.^ In the Supreme Court, Hand, J., in spealdng of an equity held by defendant, says : " I do not understand that there is any defense simply as a defense in ejectment. The effect of that might be to keep the legal title and possession forever separate." ^ In an action of ejectment by a vendor against a purchaser by contract, the plaintiff claiming a forfeiture by a failure to comply with its terms, the defendant set up matter of excuse, and the court held that, in considering the equitable defense, the same view would be taken as though the defendant had filed a bill for specific per- formance, and that defendant was entitled to a specific perform- ance of the contract.* In California, when an equitable defense is interposed to an action of ejectment, it has been uniformly held that, in setting up his equitable title, the defendant's plead- ing must contain, in substance, all the elements of a bill in equity, and that its sufiiciency, other than as to matters of mere form, is to be determined by the application of the rules of pleading observed in courts of equity when relief is sought in cases of like character.* Consequently, the defendant's equitable title is made effectual as a defense only by granting him relief to which he would be entitled in equity, thus converting his equity into a legal bar. 1 Cavallii;. Allen, 57 K T. 508. ' Dewey v. Hoag, 15 Barb. 365. » Cythe V. La Fontain, 51 Barb. 186. * Bstrader v. Murphy, 19 Cal. 248 ; Lestrade v. Barth, 19 Cal. 660 ; Blum v. Rob- ertson, 24 Cal. 127 ; Bruck v. Tucker, 42 Cal. 346 ; Miller v. Fulton, 47 Cal. 146 ; Talbert v. Singleton, 42 Cal. 390 ; Gruedici w. Boots, 42 Cal. 452. In Wisconsin the holding in Lombard v. Cowham, 84 Wis. 486, and in Onson v. Gown, 22 Wis. 329, that a mere equitable defense in ejectment is not sufficient, but that defendant must seek the title by a counter-claim, may be based upon an amendment to the Wisconsin Code (ch. 141, § 7) requiring him, in such case, to demand affirmative relief. Mr. Pomeroy, in his able work on the New Procedure, condemns, not precisely the view I have taken, but a doctrine supposed by him to be held in the cases above cited. He savs in section 91 : "Express as is the language of the statutes, and well established as is the judicial nature of 'defense' in general, the doctrine has been strenuously maintained, and is supported by the decisions of respectable courts, that a defendant cannot avail himself, as a defense, of facts entitling him to equitable relief against the plaintiff's legal cause of action, unless he does it by demanding and obtaining that specific remedy which, when granted, destroys the cause of action; in other words, he cannot invoke the right as long as he treats it and relies upon it as a defense. K he does not institute a separate action, based upon his equitable right, and recover 405 § 352 OF PLEADINGS. [PAET II. § 352. Defenses — When to be pleaded — The Rule. — Be- fore considering the necessity of pleading new matter in specific cases, we should again refer to the principle under which appar- ently new matter may be admitted in evidence under a denial, the specific relief therein, and restrain the pending action at law, he must, at least in the answer pleaded to that action at law, affirmatively demand the equitable remedy, and this remedy must be conferred upon him. If he simply avers the facts as a neg- ative defense, he will not be permitted to rely upon them, and to defeat the plaintiff's recovery by that means." He then proceeds to note the principal cases referred to in this connection, an4 to show that the view taken in them is unsound, and contrary to that taken in other cases which he cites. But the learned author fails to distinguish between such equitable defenses as can have no existence but for the affirmative action of the court, where the demand of the plaintiff can be resisted in law or equity only as the defendant is placed by the court in a position to resist it, and others that are in themselves defensive. He is right in his general view, and is supported by the au- thorities he cites — that there may be an equitable defense without a counter-claim, without asking or obtaining an affirmative judgment. But all equitable demands of the defendant are not defensive. In the cases where he relies upon a mistake in the writing sued on, or where he seeks such a title to the land from which he is being ejected as will give him a right to its possession, he must, in the one case, have the mistake corrected, and in the other he must obtain the title before he is in a condi- tion to resist the plaintiff's demand. Mr. Pomeroy relies chiefly upon DobSon ». Pearce, 12 N. T. 156, and Phillips v. Gorham, 17 N. Y. 270, as settling the question, and complains that the Supreme Court, in Hicks v. Sheppard, and Cramer v. Benton- should have disregarded those cases. But the cases were not the same. In Dobson v. Pearce, the defendant was sued in New York upon a judgment obtained in that state by the plaintiff's assignor. He defended, showing, first, that the judgment was ob- tained by fraud; and, second, that the original plaintiff had before sued the defendant In the state of Connecticut upon the same judgment, and that the defendant had ob- tained a perpetual injunction against him restraining him from its further prosecu- tion because it had been obtained by fraud. Both were held to be good defenses, although the court might very properly have held that the second defense superseded the necessity of any other, as no man can recover upon a judgment whose prosecu- tion has been restrained by injunction. In Phillips v. Gorham, the question decided did not pertain to defenses, though the court remarked that equitable defenses could be made, citing Dobson v. Pearce ; but the plaintiff had united a legal and equitable cause of action in one complaint, and that union was sustained, although informally made. Praud is a good defense, both in law and equity. Under the old system it was generally, though not always, necessary to attack a judgment directly by bill. The opinion in Dobson n. Pearce allows a defendant in an action upon a judgment to set up the fraud as a defense. The question now being discussed was not raised, nor does the same reason exist for demanding affirmative relief. A judg- ment or a contract may be so tainted with fraud that courts will not enforce it, but still it is a judgment and it is a contract, and precisely as rendered or made. But, when a contract is reduced to writing, to say that it differs from the writing cannot be true; the writing, and nothing else, shows the contract. The law does not recognize collaterally a contract different from the writing, but by a direct proceeding perfects the writing — corrects its errors so as to make it complete. Until the writing 406 CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 352 and the rule that renders it necessary to specially plead the facts. As we have heretofore seen,^ the right, in common-law pleadings, to offer any evidence in an action upon contract, and when the parties had gone to trial upon the general issue, that went to the original validity of the contract, was not Qnly allowed, but was defended upon principle. If there was no legal contract, there was no contract; and the defendant might well be allowed to show any fact — as, coverture — although not pleaded, that destroyed the original obligation. While this was defended upon principle, no excuse was offered for allowing, upon such issue, evidence of facts that went to the discharge of the obligation. It has been supposed by some that the defendant should still be permitted, under the Code, to prove any facts, under a denial merely, which admit the making of the contract, but which show that when made it possessed no legal vahdity.^ In considering the scope of a denial, it was shown that the defendant is at lib- erty, without having specially pleaded them, to give evidence of any facts which tend to disprove the facts alleged and denied — that is, to disprove their existence as facts, and not the liability they create.^ And the permission goes no further. The rule has is perfected, nothing else can show the contract ; when perfected, it still shows it ; the defendant's equity consists in his right to have it perfected, and until it is done he must stand by the writing as it was. And so in ejectment. The statutory action, with the permission to make equitable defenses, differs from the old ejectment; for no man can be turned out who has a right to stay in, no matter who has the legal title. But if a defendant happens to be in without right, but with the right to the specific performance of a contract which would place him in, he can only defend by enforcing such right. 1 Ante, I 324. 2 Van Sant's PI. 661, et seq. In Greenway v. James, 34 Mo. 327, I find the follow- ing, by Dryden, J. : "When the cause of action which once existed has been deter- mined by some matter which subsequently transpired, such new matter must, to comply with the statute, be specially pleaded ; but where the cause of action never existed, the appropriate defense, under the law, is a denial of the material allega- tions of the petition, and such facts as tend to disprove the controverted allegations are pertinent to the issue." If the learned judge meant, by the second phrase, to say merely that, under a denial, a defendant may prove any afiirmative facts which disprove the facts alleged by the plaintiff, the position is undisputed ; but if it is meant that he may prove facts that go to the legal obligation created by the facts charged in the petition — as, the validity of an admitted contract — it is otherwise. See, also, Corby v. Weddle, 67 Mo. 452 ; Evans v. Williams, 60 Barb. 346. » Ante, li 327-829. 407 § 352 OF PLEADINGS. [PAET H. been thus stated : "A general traverse under the Code authorizes the introduction of no evidence on the part of the defendant except such as tends directly to disprove some fact alleged in the complaint." ^ "Whenever a defendant intends to rest his defense upon any fact which is not included in the allegations necessary to the support of the plaintiff's case, he must set it out."* "The general rule is that any fact which avoids the action, and which the plaintiff is not bound to prove in the first instance in support of it, is new matter ; but a fact which merely negatives the averments of the petition is not new matter, and need not be replied to." ^ The test, then, as to whether the new facts should be specially pleaded is, not whether they tend to show a non-liabihty, either as affecting the original validity of a contract which may be in suit or as going to its discharge, but whether the statement of the opposite party is true. He does not allege a liability, but facts. These facts will, of course, show a liability, and the defendant's non-liabihty is predicated only upon their untruthfulness, or upon new facts which admit their truth, but which shield him from their consequences. And it cannot matter whether these new facts show that he was never liable, or that he has been discharged. In the case supposed, the plaintiff, in suing upon a contract made by a married woman, says nothing in regard to the coverture. To prove it would not disprove any fact he alleges, and the fact of coverture would be as really new matter as would be a discharge in bankruptcy, or otherwise. So, in an action upon a judgment, the allegation of its recovery, and the production in evidence of the judgment- roll, makes a case for the plaintiff ; and if it has been subsequently vacated, it is new matter of defense.* To remove all doubt upon this subject, it is enacted in Iowa that, " under a denial of an allegation, no evidence shall be introduced which does not 1 Selden, J., in Benedict v. Seymour, 6 How. Pr. 298. 2 Wagner, J., in Northrup v. Mississippi Valley Ins. Co., 47 lie. 435. 3 Currier, J., in The State v. Williams, 48 Mo. 210. « Carpenter v. Goodwin, 4 Daly, 89. This decision is based upon the New York statute designating the papers and entries that shall constitute the judgment-roll, which does not include subsequent orders in regard to the judgment. The order vacating it is a new proceeding — to be specially pleaded if relied on. 408 CH. XVII. J OF THE DEFENSE OF NEW MATTER. § 353 tend to negative some fact the party making the controverted allegation is bound to prove." ^ § 353. The Statute of Frauds not to be pleaded. — It been held in a few cases that the statute of frauds is new matter of defense, and that a defendant must expressly take advantage of it, or its protection is waived.* Light may be thrown upon the question by noting the rule in equity pleadings, as the leading rules embodied in the Code are but transcripts of those which prevaO. in the equity courts. In equity, if the answer admitted the agreement, the statute of frauds should be pleaded, or its benefit be insisted upon ; otherwise, the party was held to have renounced its protection.^ But where it clearly appeared on the face of the bill that the agreement was within the statute, the objection could be taken by demurrer.* Thus, in a suit for spe- cific performance of a real contract, it was not necessary to state that the contract was in writing, although it was usually done ; and if the defendant answered without denying the agreement or availing himself of the protection of the statute, he waived the objection on that ground, and could not raise it at the hear- ing — he had admitted the contract, and the plaintiff was not re- ' Code Iowa 1873, ? 2704. In apparent contradiction to the doctrine given in the text, it has been held in Wisconsin that champerty, as a defense, need not be pleaded. Barker v. Bai-ker, 14 Wis. 131. In this case one of the defendants sought to set aside certain sales for fraud, and it appeared in evidence that the counter-claim was prose- cuted under an agreement tainted with champerty. The court does not treat the matter as involving an issue of fact, but as a taint which should throw the guilty party out of court, whenever or however discovered. Paine, J., in delivering the opinion, admits that the evidence would be inadmissible upon the strict rules of pleading, but further says that "the question whether the suit is prosecuted upon a champertor's agreement is one outside the real merits of the case. And although an issue might possibly be made upon it, yet we think it need not necessarily be pleaded, but that if it comes to the knowledge of the court in any proper manner, it will refuse longer to entertain the proceeding. It would seem to stand upon similar grounds with an action for divorce prosecuted by collusion between the parties." The Supreme Court of Iowa, in Allison v. Chicago & Northwestern Railroad Com- pany, 42 Iowa, 274, reviews this opinion, and comes to a different conclusion, hold- ing that champerty is a defense to be specially pleaded. 2 Thurman v. Stevens, 2 Duer, 609 ; Osborne v. Bndicott, 6 Cal. 149 ; Gardner v. ^Vrmstrong, 31 Mo. 535 ; Sherwood v. Saxton, 63 Mo. 78. 3 1 Dan. Ch. Pr., 4th Am. ed., 655, note 9, p. 656, note 10, and cases cited. 4 IHd • Bandall v. Howard, 2 Black, 585; Walker v. Locke, 5 Cush. 90. 409 § 353 OF PLEABINGS. [PAET II. quired to prove it. In order to raise the question by demurrer, the bill must affirmatively show that the agreement was not written, and fail to show such part performance as would take it out of the statute.^ The defendant was allowed, of course, to deny the making of the contract; and, under such denial, the plaintiff was not permitted to prove one prohibited by the statute.^ This view is still taken in New York. In the Supreme Court, in 1855, at general term,' Harris, J., says: ' ' This contract [the one in suit] is the foundation of the ac- tion. If there be no such contract, there is no cause of action. But it is a contract, relating to lands. Such a contract, to be operative, must be in writing, and signed by the party to be affected by it ; if it be not, it is, in fact, no contract. The alle- gation in the complaint is untrue. The defendant has only to deny jt. * * * When, therefore, as in this case, the pleader alleges the existence of an agreement which would be void if not in writing, it should be treated, in pleading, like any other fact, and assumed to be true unless controverted by the adverse party, if • * * the defendant shall see fit to put in issue the existence of the agreement stated in the complaint, the plaintiff will, of course, fail upon the trial of that issue, unless she can prove her allegations by producing written evidence of the agreement." In the Court of Appeals, in 1871, the same view is taken. In considering an objection to the judgment that no contract valid by the statute of frauds had been proven upon the trial, Allen, J., says : " There are several answers to this : first, it was not taken or made at the trial ; second, a contract of sale was averred in the complaint and admitted by the answer. If the defendants had intended to insist upon the statute of frauds, or the invalidity of the contract for any other reason, they should have denied the making of the same, and put the plaintiff to •proof, or set up the special matter relied upon. Having admit- ted the contract, and not having pleaded the statute of frauds, or insisted upon it in their answer, the defendants are deemed to 1 r.rowne on Stat. Fr., § 509. ' / bid., I 511 ; Pry on Specific Perf., § 336. ^ i 11 Livingston v. Smith, 14 How. Pr. 490, the opinion expressly overrules Thur- man v. Stevens, 2 Duer, 609. See, also, Haight v. Child, 34 Barb. 186. 410 CH. XVII. J OP THE DEFENSE OP NEW MATTER. § 353 have renounced the benefit of it.i " " The general denial of the defendants raises the question of the statute [of frauds] as well as any other answer could raise it." ^ It may be said that this view is inconsistent with the one heretofore taken in regard to the necessity of pleading matter which rendered nugatory the contract sued on, as well as matter which discharged the obliura- tion arising under it. But the inconsistency vanishes when we reflect that in the one case the plaintiff, in proving his contract, necessarily, and in the first instance, shows it to be an invalid one ; his first move takes him out of court ; while in the other case, its invalidity does not appear until the defendant has proved "new matter " — that is, a fact or facts not involved in the statement of the plaintiff, and which would never transpire unless shown by the defendant. Thus, the fact of coverture would not appear in making out the plaintiff's case. It is new matter, to be shown by the defendant, and such matters are equally new whether, in the language of the Hilary Eule, they operate " by way of dis- charge " or " show the transaction to be either void or voidable in point of law." New matter in avoidance is shown in evidence by the defendant, after the plaintiff is supposed to have made a prima-facie case. That is not new matter, which, if the contract be denied, must be shown by the plaintiff; it is part of his case. ' Duffy V. O'Donovan, 46 N. Y. 223. The phraseology of the opinion is not happy_ The learned judge doubtless intended to say: "If the defendants had intended to insist upon the statute of frauds, or such invalidity of the contract, for any other reason, as would necessarily appear from the plaintiff's evidence, they should have denied," etc. In both Duffy v. O'Donovan, and Livingston v. Smith, the equity practice is appealed to as authority. The doctrine of this case is afBrmed in Marston v. Swett, 66 N. Y. 206. The first of the Hilary Rules, adopted by virtue of the statute of 4 William IV., ch. 42, limited the operation of the plea of non-assumpsit to "a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law ; " and Kule 3 expressly provides that all matters in confession and avoidance — naming various defenses thus classed — shall be pleaded specially. The comprehensive language of the Code, so far as promises are concerned, means just this, and, under these rules, non-assumpsit is held to require the plaintiff to show a compliance with the statute of frauds, and that a special plea of the statute is bad, as an argumenta- tive denial. See 1 Chitty's PI. 516, note d, citing Buttemere v. Hayes, 5 Mee. & W. 461 ; Johnson v. Dodgson, 2 Mee. & W. 653 ; Elliott v. Thomas, 3 Mee. & W. 173 ; Fricker v. Thomlinson, 1 Man. & Gr. 772 ; Eastwood v. Kenyon, 11 Ad. & E. 441, and Leaf V. Suton, 2 Dowl. {n. s.) 300. 2 Yalentine, J., in Wiswell v. Tefft, 5 Kan. 263, citing equity authorities. 411 § 355 OF PLEADINGS. [PARX II. § 354. Continued. — The following are the rules of common- law pleading under which the plaintiflF is supposed to be excused from showing that the contract upon which he brings suit con- forms to the statute of frauds : " With respect to acts valid at common law, but regulated, as to their performance, by statute, it is suiScient to use such certainty of allegation as was sufficient before the statute ; ' ' and "it is not necessary to allege facts which the law presumes ' ' — the law presuming that when one does a thing, he does it according to law. At common law these rules excused the pleader from bringing himself within the statute when stating his cause of action upon paper, but, as we have here- tofore shown ,^ they are greatly limited in their operation by the statutes of different states, which require that the instrument upon which the action is based, or a copy of the same, be filed with the complaint or petition. Where this is so required, the original pleading, if the action is brought upon an agreement in writing, will necessarily show that fact, so that it will appear, in the first instance, whether or not the plaintiif has complied with the statute. § 355. The Statute of Limitations. — The practice codes of New York, North Carolina, South Carolina, and Wisconsin ex- pressly provide that " the objection that the action was not com- menced within the time limited can only be taken by answer."* So, if one would seek the protection of the statute, he must in all cases plead it ; and even if the complaint shows that the statutory period has elapsed, the pleading is not for that reason demurra- ble.' The complaint is founded on the original cause of action; it is not necessary for the plaintiff to state any facts — as, a new promise, or that the fraud upon which an action may be based has been discovered within a specified period — that take the case out of the statute ;* and in New York, if the statute is pleaded as a defense, the new promise may be given in evidence to avoid it without a reply.* In Wisconsin it seems to be assumed, in a late 1 Ante, I 312. 2 Code Proc. N. Y., ? 74; Code Civ. Proc. N. T. 1876, | 413; Code Civ. Proc N. C, I 16 ; Code Proc. S. C, J 97 ; Kev. Stat. Wis., ch. 188, ^ 1. 3 Sands v. St. John, 36 Barb. 628 ; Baldwin v. Martin, 14 Abb. Pr. (n. s.) 9. * Sands i;. St. John, 36 Barb. 628 ; Baldwin v. Martin, 14 Abb. Pr. (n. s.) 9. 5 Esselstyn v. "Weeks, 12 N. Y. 635. 412 CH. XVII.] OF THE DEFENSE OF NEW MATTEE. § 355 case,^ that the statute of limitations is only available by answer, although it had been before held that the term " answer " in the statute included demurrer.'^ In most of the states, what is thus provided for by statute in New York, etc., is left to be decided upon principle, and it is presented in two respects : first, when the complaint or petition shows that the period fixed by the statute as a limit upon the plaintifi^'s right to bring the action has expired ; and, second, when the fact would not appear upon the record unless specially pleaded. And the general, if not the universal, rule is that if the pleading affirmatively and distinctly shows the action to be barred by the statute, a demurrer will lie, upon the ground that it does not state facts sufficient to constitute a cause of action. This was the rule in the equity practice, which is followed in the Code states where no other rule has been ex- pressly made. Yet, even if the bar is thus shown, the defendant is permitted to avail himself of the statute by answer, as he might also do in equity.^ Where, however, the complaint fails • Tarbox v. Supervisors, 34 "Wis. 558. 2 Howell V. Howell, 15 Wis. 55. ' The petition not afBrmatively showing the time when the cause of action accrued, a demurrer will not lie. Mills v. Kice, 3 Neb. 76. In an action for money loaned, etc., unless the petition affirmatively shows that the action is barred by the statute, demurrer will not lie, but the statute must be specially pleaded. Parker v. Berry, 12 Kan. 351. When the petition shows the cause of action to be barred by the statute, a demurrer or special answer setting it up will lie, but if the defendant neither demurs nor answers specially, he waives its protection. Sturges v. Burton, 8 Ohio St. 215. "The statute of limitations becomes available on demurrer only when the petition shows affirmatively that the statutory period had elapsed before the action was com- menced. When this does not appear, the statute must be pleaded." Day, J., in Huston V. Craighead, 23 Ohio St. 198. See, also, Zane v. Zane, 5 Kan. 134. In an action for the possession of land, and for damages for withholding the real property and for rents and profits, it is held in Ohio that two causes of action are embraced, which should be separately stated and numbered; that the action for damages is limited to four years ; and that if the defendant simply denies the allegations in the petition, he cannot take advantage of the limitation. McKinney v. McKinney, 8 Ohio St. 423. But, in general, if the pleading shows that the statutory period has elapsed, the objection can be taken by demurrer. The bar of the statute must be insisted on either by demurrer or answer. Vose v. Woodford, 29 Ohio St. 245. The decisions in Minnesota conform to those in Ohio and elsewhere. To allow a demurrer, it must appear that the time has expired. Kennedy r. Williams, 11 Minn. 314. "It must clearly appear," etc. Eastman v. St. Anthony Falls Water-power Co., 12 Minn. 137; McArdle v. McArdle, 12 Minn. 98. In California the same view is taken, but on demurrer it is not sufficient to state generally that the complaint does net state facts Bufficient to constitute a cause of action, but the statute must be expressly referred to. 413 § 355 OF PLEADINGS. [PART II. to show that the period named by the statute to which the right of action is limited has expired, the fact must be shown by the answer, or the protection of the statute is waived ; and this is the universal rule.^ It may be said that the same rule should hold that has been seen to prevail in regard to the statute of frauds — that, upon a denial of the contract sued on, or other facts con- stituting the cause of action, the plaintiff should be compelled to show a cause of action that has arisen within the statutory period. But the cases are not alike. The statute of frauds goes to the contract itself; the agreement can have no legal existence except by complying with its conditions, while the statute of limitations Brannan v. Ford, 46 Cal. 7 ; Brown v. Martin, 25 Cal. 82. The rule teing that " when- ever the defense is of the nature of a special privilege, of which the party can only avail himself by pleading it, then his pleading, whether it be by demurrer or answer, must specify the grounds of defense." Kent v. Snyder, 30 Cal. 666. The Iowa statute provides that "when a pleading shows affirmatively that its cause-of claim is barred by the statute of limitations, it may be assailed by demurrer." Sec. 2961 of the re- vision of 1860, and I 2648 of the revision of 1873. See Moulton v. Walsh, 30 Iowa, . 361 ; Springer v. Clay County, 35 Iowa, 241 ; Kobinson v. Allen, 37 Iowa, 27. In Indiana, in Hanna v. Jeflfersonville E. Co., 32 Ind. 113, the rule is somewhat modified. " Ordinarily, statutes of limitations must be pleaded, though the facts appear by the averments of the complaint. The reason for this is that usually there are exceptions to statutes of limitations, and the plaintiff should, therefore, have the opportunity of replying to the plea, so that he may show that the case is within any of the exceptions. To compel him to make these averments in the complaint would tend to inconvenient and needless prolixity. But in the case before us there are no exceptions, and, con- sequently, there is no reason why the defendants should plead the fact. There could be no reply avoiding the plea. The complaint brings upon the record all the facts concerning the matter that could be of service to either party, and the answer would be but a repetition of them, accomplishing no useful end. We think, therefore, that the question was properly raised by the demurrer, and that it was correctly sustained." This language of Prazer, J., is quoted and approved by Buskirk, J., in Perkins v. Kogers, 35 Ind. 124. In Kentucky the general docti-ine is that the statute of limita- tions must be specially pleaded, but the same qualification is given as in Indiana — ^it "must, if relied upon, be pleaded by the defendant in all actions, unless the petition shows that the action is barred by time, and that the plaintiff is not within any of the exceptions mentioned in the statute, when any exceptions are contained in the statute which prescribes the limitation. It is not necessary that the plaintiff should allege in the petition that the action has been brought in due time." Simpson, J., in Chiles v. Drake, 2 Mete. (Ky.) 146. "The only exception from the general rule is where the petition shows, not only a sufficient lapse of time, but the non-existence of any ground of avoidance, which a plaintiff is not apt ever to do." Kobertson, J., in Rankin v. Tur- ney, 2 Bush, 555. The statute of limitations of a foreign state must be set out by answer ; it cannot be taken advantage of by demurrer. Hoyt v. McNeil, 18 Minn. 390 ; Gillett u. Hill, 32 Iowa, 220. ' See the cases just cited. 4U CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 356 goes only to the remedy.' The contract is not extinguished ; the statute does not reader it void nor presume satisfaction. It places a limitation upon the plaintiff's right to compel the defend- ant to respond to his demand — a limitation the period of which is a matter of public policy, and one which the defendant may waive or take advantage of at his option. The statute of frauds, as affecting the validity of the contract, controls its enforcement wherever the defendant may be sued ; its validity under the statute is governed by the lex loci contractus, while as regards the statute of limitations, it is enforced or not according to the law of the forum ; and even where the period may have expired according to the law in force when the contract was made, if the contracting party be found in another state, he can only avail himself of the limitation there prevailing, and that not having expired, it may still be enforced against him.^ § 356. Contiimed — In Ejectment. — In the old action of ejectment, the defendant, under the consent rule, was only al- lowed to plead the general issue of not guilty, which admitted all defenses, although, as against the demand for mesne profits, if he could protect himself by the statute, he was required to plead not guilty within six years, which would protect him from a re- covery for such profits as had accrued before that period.' In some of the Code states the general issue in ejectment is sub- stantially provided for. Thus, in Ohio, the statutory provision is * that ' ' it shall be sufficient in such action [for the recovery of real property] if the defendant, in his answer, deny generally the title alleged in the petition, or that he withholds the posses- sion, as the case may be ; but if he deny the title of the plaintiff, possession of the defendant shall be taken as admitted." This provision is adopted in the Codes of Kansas^ and Nebraska.^ The Indiana Code ^ is more explicit as to the effect of a denial, by pro- » McElmoyle v. Cohen, 13 Pet. 312 ; Townsend v. Jemison, 9 How. 407 ; Bulger ». Roche, 11 Pick. 36 ; Carson v. Hunter, 46 Mo. 467. 2 Carson v. Hunter, supra, » Adams' Eject., g 86. « I 559. ' Civ. Proc, § 596. » Civ. Proc, § 627. » Civ. Proc, I 596. 415 § 356 OF PLEADINGS. [pART II. vidins: as follows : •' The answer of the defendant shall contain a denial of each material statement or allegation in the complaint, under which denial the defendant shall be permitted to give in evidence every defense to the action he may have, either legal or equitable." In these states, therefore, it ajapears that, as in the old action, the statute of limitations is but matter of evidence, and, in actions for the recovery of real property, need not be pleaded. On the other hand, as we saw in the last section, the statutes of New York, North Carolina, South Carolina, and Wis- consin expressly provide that, in all actions, " the objection that the action was not commenced within the time limited can only be taken by answer," which provision, of course, includes the action for the recovery of real property. In Kentucky^ the de- fendant is required to state in his answer whether he claims the land, or any part of it ; and in Oregon ^ it is provided that "the defendant shall not be allowed to give in evidence any estate in himself or another in the property, or any license or right to the possession thereof, unless the same be pleaded in his answer." Thus, in the states named, the question as to the necessity of pleading the statute of limitations in actions for the recovery of real property, is, in effect, settled by statute. In other states it must be governed by the general principles that govern other pleadings,' and the inquiry arises whether, upon principle, it is necessary to plead the statute. The plaintiff, I will suppose, brings his action for the possession of certain joroperty, and al- leges, as he may in some states,* that he is entitled to the posses- sion of the same, and the defendant has wrongfully dispossessed him, or alleges that he is tlie owner in fee-simple, and is entitled to the possession, desiring, in either case, to show his right by establishing his title, and the issues are made by a simple denial. In such case, and in the absence of a statute specially applicable to it, is the denial sustained by proving title in the defendant, or in a stranger, through the statute of limitations ? And this brings us to consider the effect of the statute upon the question of title. 1 Bullitt's Code, ? 125. 2 Code Civ. Proc, § 316. ' In Missouri (Wag. Stat. 559, J 7) the statute requires that the pleadings, except as otherwise provided in the act, shall he conducted as in other civil actions. * dee, ante, JJ 223-226. 416 CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 356 There can be no doubt that any direct evidence, by apparently new matter, which does not avoid, but goes directly to negative, the plaintiff's averments, is admissible under a denial. ^ If the effect of the defendant's, or a stranger's, open and notorious ad- verse possession — his seizin — be to vest in him a legal title, as though he had received a valid conveyance from the true owner, it would seem to follow that he might give evidence of it when- ever he would be allowed to offer in evidence the conveyance. That he could offer such a conveyance in evidence is not dis- puted, for it shows directly that the plaintiff is not entitled to possession ; that he is not the owner in fee-simple ; that defend- ant does not wrongfully dispossess him. If the effect of posses- sion, according to the statute, is the same, the result, as to the right to prove it, should be the same. As to the effect of pos- session under the statute, the doctrine is that one who enters upon the possession of real property and disseizes another — that is, who takes actual, notorious, and hostile possession — takes a fee, of which he may be divested by the entry of the true owner, and by no one else, and such true owner is barred by the expira- tion of the period named in the statute of limitations.^ This con- tinued possession gives an absolute title against every one not excepted by the statute.^ Says Mr. Washburn, quoting from a judicial opinion : "An open, notorious, and adverse possession for twenty years would operate to convey a complete title as much as any written conveyance. And such title is not only an interest in the land, but it is one of the highest character, the absolute dominion over it, and the appropriate mode of convey- in <>• it is by deed ; " * and, further : " The operation of the statute takes away the title of the real owner, and transfers it, not in form, indeed, but in legal effect, to the adverse occupant. In other words, the statute of limitations gives a perfect title." It being established, then, that he who holds under the statute of limitations is the absolute owner in fee-simple, evidence of such holdino- negatives the plaintiff's allegations, and is admissible 1 Ante, II 32S, 329. 2 3 Washb. on Real Prop., ch. 2, | 7, subdiv. 18. s Ibid., subdiv. 26. * Did subdiv. 48, quoting from School District ». Benson, 31 Me. 384. 417 27 § 357 OF PLEADINGS. [PAET H. under a denial ; and it is so held by the Supreme Courts of Mis- souri^ and of Ohio.^ § 357. Payment. — Whether, in an ordinary agreement or obligation to pay money, it is incumbent upon the defendant to plead the fact of payment as new matter, should, upon principle, depend upon the necessity on the part of the plaintiff, in sub- mitting his evidence, of showing the fact of non-payment as part of his case. If he is bound to prove, in the first instance, that the promissory note has not been satisfied, or that the work and labor, or the property sold, has not been paid for, then the default should be so affirmatively averred that issue may be taken upon it, and it does not become new matter. If, on the other hand, it is sufficient for him, in making his prima-facie case, to show the agreement, or the work, or the sale, with the price or its value, and, if the obligation thereby created has been dis- charged — as, by payment — it becomes the duty of the defendant to show that fact, then such fact is clearly new matter, to be specially pleaded. When, however, the action is not based upon the original agreement or obligation, but is brought for what remains due after deducting all payments or off-sets — as, for a balance of an account — in ascertaining the truth of the plaintiff's averments put in issue by a denial, the amount that has been paid becomes a material part of the inquiry, and, in such case, is not new matter. The claim is certainly plausible, if not sound, that, inasmuch as no cause of action can be founded upon a contract without its breach, the breach — as, non-pay- ment — becomes part of the plaintiff's case, and is involved in a general denial. In the old assumpsit, after setting out the facts which created the obligation — as, the execution and delivery of a note — ■ a fictitious promise to pay the said note, etc. , was alleged, followed by the averment that the defendant had not paid the same, or any part thereof; but it was not necessary for the plaintiff to prove either the promise or the non-payment. And in debt on simple contract, the fictitious promise was omitted, as well as the special breach, and an indebtedness was charged as a > Nelson v. Brodhaok, 44 Mo. 596 ; Bledsoe v. Simms, 53 Mo. 305. * Kyser v. Cannon, 29 Ohio St. 359. 418 CH. XVII. j OF THE DEFENSE OP NEW MATTER. § 358 conclusion from the facts. In submitting the e\'idence, payment was treated, in either action, as new matter, although before the great reform in pleading, under authority of the act of 4 Will- iam lY., it, like so many other defenses of new matter, could be proved under the general issue. ^ § 358. Continiied — The judicial View. — The general view of the couils accords with that taken in the last section, although it is otherwise with the leading tribunal upon the Pacific coast. The Supreme Court of California, in a succession of cases, holds that the usual general allegation of non-payment made in the complaint is an averment of a substantive fact, to be met by a denial in the form of an affirmative traverse — that is, the plea of payment is simply a denial of the allegation of non-payment — and, before the amendment of the Code dispensing with a reply in all cases, required no reply ; and even that plea is not necessary, as a general denial will put the fact in issue. ^ In Indiana, on the other hand, in an action upon a bill of exchange, it is held that a ' It was not customary in common-law pleadings to plead payment, except in debt on bond for the payment of money, where, after oyer of the condition, a general averment of payment was necessary, called solvit ad diem, or solvit post diem, as the case might be, which plea was met by a replication. See 3 Chitty's PI. 974, 975, 1175. In assumpsit, and in debt on simple contract, the defendant was allowed to prove payment under the general issue. 1 Chitty's PI. 478. The Hilary Rules, however, required that payment be specially pleaded, which plea was met by a replication. 1 CKitty's PI., App., 742, 743. ' Friseh v. Calor, 21 Cal. 71, was an action upon a promissory note, in which the plaintiff had failed to reply to a plea of payment. The court, in an opinion per Cope, J., held that no reply was necessary, and that the plea of payment was but a traverse of a material and necessary allegation of non-payment, the statement that there is due a certain sum named upon the note being a mere conclusion of law, and insuflBoient. Fairchild v. Amsbaugh, 22 Cal. 572, was an action for the price of personal property, and payment was allowed to be proved under a general denial, and the doctrine of the case was aflSrmed in Wetmore v. City of San Francisco, 44 Cal. 294, as to a contract to make public improvements. The doctrine that a plea of payment was but a traverse of the plaintiff's allegation of non-payment wasaflBrmed, as to a promissory note, in Davanay v. Eggenhoff, 43 Cal. 395, overruling Hook v. White, 36 Cal. 300. The court does not speak directly as to the tender of proof in these cases, but intimates in one that the possession of the note by the plaintiff was prima-facie euidence that it had not been paid. This would not, however, apply to an action for the price of property upon verbal sale, nor to any implied promise. It would seem that if a plea of payment is but a traverse of a material averment of non-payment, such averment, being denied, must be proved. 419 § 358 OF PLEADINGS. [PAET H. plea of payment is a statement of new matter, to be met by a re- ply, like other new matter, and that the facts put in issue by a denial are only those which it is incumbent on the plaintiff to prove as part of his case. " The complaint, it is true," says the opinion, " ordinarily avers that the instrument sued on has not been paid ; still, proof of that averment is not required, and, therefore, it is not put in issue by a general denial." ^ In Kan- sas, proof of payment is also treated as new matter, and is not allowed under a denial.^ In New York it is settled that evidence of payment will not be admitted under a general denial, although, if the plaintiff directly avers non-payment, which, it would seem, he is not required to do, but may allege indebtedness as a legal conclusion, an averment of payment is held to be but a traverse.' The plaintiff, however, may sue for a balance of an account, or for a balance due for services, or other subject-matter of the ac- tion, without expressly relying upon the matter of the account, ' Hubler v. Pullen, 9 Ind. 273. The general doctrine of this case is affirmed in Baker v. Kistler, 13 Ind. 63. 2 Stevens v. Thompson, 5 Kan. 305 (affirmed in Clark v. Spencer, 14 Kan. 398). In Marley v. Smith, 4 Kan. 185, it had been allowed, and in Stevens v. Thompson, Kling- man, J., distinguishes it because, in the latter case, "the petition only alleged in- debtedness generally, without stating its grounds ; that the plaintiff had chosen to risk his case upon a conclusion from facts, without stating the facts, and that any fact showing the conclusion untrue was legitimate,'' whereas, in Stevens v. Thompson, the facts constituting the cause of action are stated ; the averment of non-payment is not a fact in such a sense as to be met by a denial. ' McKyring v. Bull, 16 N. T. 297, was an action for work and labor, the complaint alleging its value to be $650, and stating "that there is now due the plaintiff, over and above all payments and offsets, the sum of $134, which said sum the defendant refuses to pay." This was met by a general denial, and under it the court refused to permit any proof of payment. The reasoning of the court, per Selden, J., was that the allegations of work and labor, and its value, are the material averments ; that the statement of indebtedness is a non-traversable legal conclusion; that the plaintiff migh*, at his option, limit his demand to less than the amount shown by the facts to be due ; that a general denial is a traverse of all the material facts alleged, but not the conclusion of indebtedness, as was the general issue of nil debet in the action of debt. The case is distinguished from a former one as follows : " The case of Van Gieson ». Van G-ieson, 12 Barb. 520, subsequently affirmed in this court, contains nothing in op- position to the doctrine here advanced. That case simply decided that, where the complaint contained an averment of non-payment, a plea of payment formed a com- plete issue ; that, payment having been denied in the complaint, it was unnecessary to repeat that denial in a reply." The general conclusion is then stated : "My conclu- sion, therefore, is that neither payment nor any other defense which confesses and avoids the cause of action can, in any case, be given in evidence as a defense under 420 CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 359 or the specific service, etc., when it becomes necessary to inquire into the payments in order to ascertain such balance. The pay- ments themselves are involved in the cause of action, and are not new matter.^ § 359. In Actions for Libel and Slander — The old Law. — In order to appreciate the changes made by the Code in defend- ing actions for libel and slander, a point or two in the old law should be noted. Presuming that the defendant is unable to controvert the publishing, that the words are actionable in their alleged meaning and application to the plaintiff, there remains the defense of justification, either because the charge was true or because the publication was privileged, to which should be added the right of the defendant, under the general issue, to prove certain facts in mitigation of damages. The general issue only admitted the inducement and the falsity of the charge.^ All other facts were put in issue, and might be controverted upon the trial. It had come to be generally, though not universally, held that facts which tended to prove the truth of the charge could not be given in evidence, in mitigation of damages. This doctrine an answer containing simply a general denial of the allegations of the complaint." In Texier v. Gouin, 5 Duer, 389, it was said that payment could not be proved under a general denial, although there was no such denial in that case; and in Seward d. Torrence, 5 N. T. Sup. Ct. 823, it was held that, in a suit upon a note, evidence of payment could not be given without an averment of payment in the answer; and in Bdson V. Dillaye, 8 How. Pr. 273, a denial of non-payment and indebtedness, after ad- mitting the making the note sued on, and without alleging payment as new matter, •was held to be frivolous. ' In Quin v. Lloyd, 41 N. T. 349, suit was brought for a balance remaining due for certain services, after sundry payments were deducted, the precise amount of the ser- vices not being given, and the answer was a general denial. Lott, J., distinguished it from McKyring v. Bull, inasmuch as in that case the precise value of the services was stated, although a less amount was asked for, and held that the action was for a balance due, which made it necessary to inquire into the payments. Woodruff, J., remarked that, when the plaintiff sues for a balance, instead of suing upon the con- tract, he invites examination into the amount of the indebtedness. It was, however, held that a plea of payment was unnecessary. A complaint for work and labor of the value of §541.90, stating that there is due the plaintiff, " after deducting all payments made by the defendant to the plaintiffs therein," the sum of $175.75, admits the pay- ment of $366.15. White v. Smith, 46 N. Y. 418. Those averments in a complaint are deemed material, which the plaintiff is bound to prove if denied. Fry v. Bennett, 6 Sandf. 54 ; Gan'ey v. Fowler, 4 Sandf. 665. ' Towns, on Slander, § 403. 421 § 359 OF PLEADINGS. [PAET II. was firmly established in New York previous to the adoption of the Code, and while its courts allowed the defendant to give in evidence facts and circumstances which showed that, though mistaken, he believed, when he published the charges against the plaintiff, that they were true, and thus mitigate the damages to be recovered, yet, if the facts and circumstances thus offered in evidence tended to prove the truth of the charge — if they helped to make out a justification — they were inadmissible.' Matter in mitigation was admissible without pleading it, while matter in justification — going to the truth of the charge — was required to be pleiided ; and if the defendant undertook to place the charge upon record — if he persisted in the libel or slander — and failed to establish the truth of his charge, his malice was conclu- sively established, and his guilt, and consequent liability, was aggravated by his persistence in the wrong. It is thus seen that a broad distinction was taken between matter in excuse, in ex- tenuation, which admits the defendant's mistake, but may be material as to the extent of his punishment, and facts which follow up the charge and aggravate the injury. If the wrong- doer wculd deprecate the punishment justly due the wanton calumniator, he must admit his mistake, jnust so far rectify the wrong, and he will then be permitted to show how he was misled, and that the injury was not a wanton one. While this does not justify, it palliates the offense and mitigates the damages. This theory of extenuation was wholly inconsistent with any attempt to justify, or with any pleading or proof of facts which tend to establish the truth of the charge. Hence the ruling of the New York courts was strictly logical, although it was sometimes hard upon defendants who had acted in good faith — who had made charges, not wantonly, but which they had reason to believe were true, and yet were not able fully to establish. The remonstrance of the press against this ruling was very general. No reasonable objector claimed exoneration unless the truth of the charge could be fully established; but it was believed that when the conduct of a plaintiff whose acts were the proper subject of public criticism had been such as to excite reasonable suspicion — 1 Root V. King, 7 Cow. 613 ; Gilman v. Lowell, 8 Wend. 573 ; Purple v. Horton, 13 Wend. 9 ; Cooper v. Barber, 24 Wend. 105 ; Pero v. Euscoe, 4 Cumst. 162. 422 CH. XVII.] OF THp DEFENSE OF NEW MATTER. § 360 when it tended, and perhaps strongly tended, to prove him guilty of the improper conduct attributed to him, and so strongly that honest and intelligent men might well be mistaken in regard to it — a defendant thus misled should be permitted to extenuate his offense by showing what that conduct was. Morally, he might be less guilty than when, upon information of others, and without inquiring into their truth, he had given wings to false charges, or even, when he had made specific criminal charges, induced to believe and utter them only from the bad character of the plaintiff. The suspicious or bad conduct of the plaintiff certainly would go to the actual malice of the defendant ; and in some states it was held to be admissible in evidence, in mitigation.^ o § 360. The Cliang-e made by the Code. — In view of the sup- posed unjust operation of the law, as thus held in New York, the following section was embodied in its Code of Procedure, and immediately following the one in regard to the application of the words to the plaintiff : "In the actions mentioned in the last sec- tion, the defendant may, in his answer, allege both the truth of the matter charged as defamatory and any mitigating circum- stances to reduce the amount of damages ; and whether he prove the justification or not, he may give in evidence the miti- gating circumstances." ^ This section, with the preceding one, was copied in the practice codes of the other states,^ and its full 1 See Bailey v. Hyde, 3 Conn. 463. 2 Sec. 165. By sections 535 and 536 of the New Tork Code of Civil Procedure of 1876, the provision as to pleading and proving mitigating circumstances is ex- tended to actions for a breach of promise to marry, or for a personal injury, or an injury to property. 3 Code Civ. Proc. Ohio, I 125; Code Civ. Proc. Ind., ? 87; Kev. Stat. Wis., ch. 125, I 29; Code Civ. Proc. N. C, § 125; Code Proc. S. C, ? 188; Code Civ. Proc. Pla., ? 115: Bullitt's Code Ky., g 124; Dig. Ark. 1874, J 4606; Wag. Stat. Mo. 1021, I 44 ; Code Proc. Minn., ? 101 ; Code Civ. Proc. Kan., ? 126 ; Code Civ. Proc. Neb., g 131; Code Civ. Proc. Cal. 1874, g 461; Comp. Laws Nev. 1873, I 1129; Code Civ. Proc. Oreg., ? 89 ; Code Cir. Proc. Col., J 70. The Iowa statute extends the operation of the section to any action for an injury to person, character, or property; rtquires the mitigating circumstances to be pleaded, unless they grow out of the plaintiff's testimony, and expressly provides that an unproved allegation of the truth of the charge shall not be deemed proof of malice unless the jury find that such de- fense was made with malicious intent. Code 1873, i 2682. 423 § 360 OF PLEADINGS. [PAET n. force will only be appreciated by bearing in mind tbe previous New York rulings, against which it was directed. Theretofore, in that state, " the defense of an action of libel or slander was a very perilous undertaking. If the defendant attempted to jus- tify by proving the truth of the words spoken, it was regarded as a reiteration of the charge, and conclusive evidence of mahce ; and no evidence in mitigation could be received. If he failed to establish tlie truth of the charge, the damages were aggravated. He might give evidence in mitigation ; but in that case he must admit the truth [falsity?] of the charge, and could give no evi- dence tending to prove the contrary." ' The most obvious relief given a defendant by this statute was the right to seek to estab- lish the truth of the alleged defamatory matter, and at the same time to show extenuating circumstances which should reduce the amount of damages, and that the latter might be shown although he fail in the justification. This destroys the artificial deduction of malice, allows all the circumstances to be brought before the court and jury, and makes the malice and its extent questions of fact to be drawn from all the evidence. The very forcible reasoning which justified the old ruling — that a plea of justifica- tion, if untrue, was but an aggravation of the original wrong — still has its full effect when it is not made in good faith ; and it is accordingly held that if the defendant justifies when he does not believe, and has no reason to believe, the words to be true, his answer may be treated as showing continued and express malice, and should aggravate the damages.^ The courts of New York have given full effect to this section of the Code, by per- mitting all the facts to be shown in mitigation, although they tend to prove the truth of the alleged defamatory matter — as, when the defendant had charged the plaintiff with keeping a house of ill-fame, he was permitted to allege and prove that the plaintiff's wife and daughter had been guilty of such lascivious and improper conduct as to induce him to believe that he kept ' Reynolds, Comr., in Spooner v. Keeler, 51 N. Y. 527. The published text says " he must admit the truth of the charge " — an evident misprint. The opinion, per- haps, was written "the truth of the complaint." See last section. 2 Chamberlin v. Vance, 51 Cal. 75, and see remark of Allen, J., to the same effect, in Bush V. Prosser, 11 N. Y. 354. See, also, Quinn v. Scott, 22 Minn. 456. 424 CH. XVII. j OF THE DEFENSE OF NEW MATTER. § 361 such a house ; ^ or, when he had charged the plaintiff with being a thief, and having stolen from him, he was permitted to set up and prove such a wrongful carrying away of corn, and appropri- ation to his own use, as did not amount to larceny, although the defendant supposed it to be such when he made the charge ; ^ so, when the defendant had charged the plaintiff with swearing to a lie, in attempting to justify, he had failed to make out a charge of perjury, yet the answer was held sufficient to admit evidence in mitigation of damages.^ In the Supreme Court, a defendant, in addition to answers in justification, had set up, by way of mitigation, facts which tended to show the truth of the charge contained in an alleged libel, and the pleading was sus- tained at general term.* Farther citations from New York are unnecessary ; the holding is uniform that a defendant may not only justify and plead in mitigation — the statute is express upon that — but also that he may rely upon facts in mitigation which tend to justify. The statute does not provide for the latter in terms ; it is matter of inference, and the ground for the inference, as given in Bush v. Prosser, seems to be this. The old rule was that a plea in justification, if not sustained, is a reiteration of the defamatory matter, is conclusive evidence of malice, and no mitio-atino- circumstances can be shown in connection with it. This rule lay at the foundation of the one which prohibited the intro- duction of e\'idence in mitigation which tended to prove, but did not fully prove, the truth of the charge — that is, which in itself showed malice. The former rule is expressly abolished by the statute, and the latter is held to fall with it. §361. The Pleadings — 1. The Justification. — When the defendant relies upon the truth of the defamatory matter as a defense, no change is made by the Code in regard to the neces- sity of pleading it, or in the character of the pleading.^ The innocence of the plaintiff — that he is not obnoxious to the charge 1 Bush u. Prosser. 11 N. Y. 347. The opinions of Allen and Selden, JJ., discuss the subject at length. 2 Bisbey v. Shaw, 12 N. T. 67. ' Spooner v. Keeler, 51 N. Y. 527. « Bennett v. Matthews, Si Barb. 410. 6 Wachter v. Quenzer, 29 N. Y. 547. 425 § 361 OF PLEADINGS. [PAET U. made against him — the law presumes, and he should neither allege it nor, in the first instance, attempt to prove it. His guilt is new matter of defense, to be pleaded by way of confes- sion and avoidance ; and the pleading is subject to the rules that govern the statement of affirmative matter in other cases. Thus, the truth of the charge cannot be alleged as a conclusion of law — as, that the words charged as spoken by the defendant are true ; or, that the plaintiff is a thief ; or, that he did commit per- jury — nor will any allegation of the truth of the charge be allowed in a general way, as a conclusion, and not as a fact.^ A distinc- tion is made between a justification where the slanderous words impute an offense in a general way, and where they particularize the charge — that is, between a charge, for example, that the plaintiff swore to a lie, or forswore himself, and one charging him with giving false testimony, and with a particularity sufficient in a plea of justification ; or, a charge that the plaintiff is a thief, and one charging him with stealing two sheep belonging to J. S. When the defamatory words, as set out, are sufficient of them- selves to describe the offense, then a general affirmation of their truth has been held to be sufficient ; but, otherwise, the plea or answer of justification must show the facts that constitute the offense with the same particularity as an indictment for the same offense. The plaintiff is, in fact, put on trial, and the defendant can only sustain himself by stating and proving the commission of a specific offense which would warrant the charge ; and if there is a variance, or if the ^'wasi-indictment is less broad than the charge, or if it omits an element necessary to constitute the offense charged, it is no justification.^ In regard to justification by showing that the publication was privileged, the Code has made no change. ' " This does not allow a reiteration of the libelous words, and an averment that they are true, without the statement of a single fact showing them to he so. Take, for instance, the charge that one is a thief, or a murderer, or that he has committed perjurj'. A statement in the answer that the words are true would not be a justifi- cation, and it would fall just as short of being a statement of facts to be proved by way of mitigation. It is a statement of nothing." Denio, J., in Wachter v. Quenzer, 29 N. T. 547. 2 This subject is treated very fully in Tonwnshend on Libel and Slander, to which, and the numerous authorities cited by him, both in common law and code pleadings, the reader is referred. See chapter 13, passim, which pertains to pleadings in actions for libel or slander. 426 CH. XVII. j OP THE DEFENSE OP NEW MATTER. § 362 The facts that will thus shield the defendant are, as they always were, new matter, to be pleaded. § 362. Pleadings — 2. In Mitigation. — At common law it was not necessary to plead the facts which were permitted to be "proved in mitigation of damages, but they were admitted in evi- dence under the plea of not guilty, and some courts, as we shall presently see, still adhere to this rule as to the same class of facts. The statute allows answers in justification and answers in mitigation — either, or both. The form of each answer would naturally somewhat vary, the pleader showing whether he alleged the facts to justify, or to mitigate merely. The question would naturally arise whether, if the pleader designed to set out mat- ter of justification — his pleading showing that to be his object — but, by lacking some element of fact, it fails to justify, evidence in mitigation could be ofiered under it. In the Supreme Court of New York it is held that an answer in mitigation should dis- tinctly show the pleader's object ; that " every answer to a com- plaint * * * must be complete in itself, and must be con- sidered as intended as a full defense to the entire action, unless it is, upon its face, qualified as a partial defense." ^ In another case ^ a motion to strike out the answer, as not making a com- plete defense, was overruled. " The portion of the answer com- plained of," says the opinion, " is alleged both by way of justi- fication and mitigation. If not good as a justification, it cer- tainly contains matter proper to be taken into consideration in mitio-ation." In 1873, in a case before the New York Com- mission of Appeals, the defendant had accused the plaintifi" of swearing to a lie, and attempted to justify. The commission was divided as to whether the answer stated facts sufficient for a justification, but all agreed that, whether sufficient or not, evi- dence under it was admissible in mitigation of damages.^ If this can be treated as authority, the question is answered in the affirmative, and it would seem, in harmony with the ruling in re- spect to other matters, that the court should look to the facts stated, in a pleading with reference to its legal eflect, rather than ' Bennett v. Matthews, 64 Barb. 410. '' .Jeffras v. McKillop & Sprague, 9 N. T. Sup. Ct. 351. 3 Spoonor v. Keeler, 51 N. Y. 527. 427 § 363 or PLEADINGS. [part II. to formulas in its opening or closing. Collateral to this in- quiry is another : whether, if the pleading is good as an answer in justification, evidence in mitigation can be offered under it. It would seem that, in those states where facts in mitigation are required to be pleaded, they should be so set out. The statute contemplates the allegation of "mitigating circumstances," as well as ' ' the truth of the matter charged as defamatory ; ' ' and if the latter is alleged so as to make a complete justification, it is an indication that the pleader rehes upon the truth of the matter — that he intends it as a full defense. Nor can the pleader well rely upon facts in mitigation without showing his intention to do so. He must not only state the facts and circumstances upon which he might reasonably rely, but also the fact that he gave them credit, and hence believed his defamatory statement to be true ; ^ or, he may state the general bad character of the plaintiff in respect to the matter charged, or his previous acts of a similar nature,'^ and his consequent belief of its truth. I do not regard this, or the pre- ceding, inquiry as fully answered upon authority. It would seem, however, upon principle, that if a doubt existed as to the nature of the answer — as to whether the facts were intended to be relied on in justification or in mitigation — the court would, before the trial, require that doubt to be removed by making the pleading more certain. If the facts pleaded did not fully justify, but were pleaded as a justification, or, if pleaded in mitigation, they were not sufiicient to extenuate the offense, the pleading would be demurrable. After verdict, however, the court would be bound to treat the pleadings much more hberally. We shall hereafter speak of the doctrine of intendment after verdict, and of formal amendments,^ and upon the principles then to be dis- cussed the court would hardly arrest or reverse a judgment because a partial defense had been considered, although imper- fectly pleaded. § 363. Continued — Must the mitigating Circumstances be pleaded? — The New York cases heretofore cited assume the mitigating circumstances to be new matter, to be pleaded. The ' Dolevin v. Wilder, 7 Robt. 319. ' Kimball v. Fernandez, 41 Wis. 329. » Post, ch. 21. 428 CH. XVII.] OF THE DEFENSE OF NEW MATTER. § 363 general question in regard to the necessity of pleading partial defenses, as applied to part payment, was early considered in the Court of Appeals,^ and the word " defense," as used in the Code,, was held to include partial as well as full defenses. In Wiscon-} sin it is also held that, in general, mitigating circumstances must] be pleaded.^ In Missouri the matter is left in some doubt,! although it would seem that the answer of new matter is neces- sary.^ The Supreme Court of Indiana, however, holds that it is not necessary, though permitted by the Code, to answer in miti- gation, and that evidence of mitigating circumstances may be given under a general denial,* but the evidence must be such as was admissible in mitigation at common law, and must not tend to prove the truth of the charge.* Mitigating circumstances may also be proved under an answer in justification.^ In Kentucky, after stating the rule that matter which would sustain a plea of justification is inadmissible in evidence under a denial, the court intimates, though does not very clearly decide, that matter tend- ing to prove the truth, while falling short of it, may be so given in evidence in mitigation.'' The language of the Iowa statute is peculiar. Section 2929 of the Code of 1860 — extended, by sec- tion 2682 of the Code of 1873, to all actions for injuries to per- son, character, or property, and somewhat changed in its pro- visions — contained, with more particularity and with some addi- tions, the provisions of the statute now under consideration. It was held under that section that all of that class of mitigating cir- cumstances — " certainly all contemporaneous with the slander — which might have been given under the general issue at common law may still be so given under an answer in denial ; " " but all of that class which tend to show the truth of the charge must be 1 McKyring v. Bull, 16 N. T. 297. 2 "Wilson V. Noonan, 35 Wis. 321, distinguishing from B — i^. I — , 22 Wis. 372. In Kimball v. Fernandez, 41 Wis. 329, the matter is left in doubt. ' In Weaver v. Hendrick, 30 Mo. 502, the court declines to pass upon the question, as not being necessary in that case. In Buckley v. Knapp, 48 Mo. 152, the necessity of the answer seems to be taken for granted. * O'Conner v. O'Conner, 27 Ind. 69; Blickenstaff v. Perrin, 27 Ind. 527. 5 Blickenstaff v. Perrin, 27 Ind. 527. « Swinney v. Nave, 22 Ind. 178. But, doubtless, the court intended to admit on,^ such as tends to prove the truth of the charge, though the opinion does not so state. ' Thurman v. Virgin, 18 B. Mon. 785. 429 § 363 OP PLEADINGS. [PART II. pleaded." ^ It is thus seen that neither can this question be con- sidered as settled, upon authority ; but perhaps we can arrive at a conclusion upon principle. In common-law pleadings it was cus- tomary to allege the plaintiff's good character, and that the words were spoken falsely and maliciously. Under not guilty, evidence was admissible as to the character, and of facts going to the malice, if they did not tend to justify, but unless the plaintiff relied upon express malice, evidence upon these points was not permitted as part of the plaintiff's case ; it must be first offered by the defendant. It was new matter, in fact, though not so pleaded. We have already seen it to bo a fundamental principle of pleading under the Code that every fact must be affirmatively pleaded by the party who is first required to prove it, and that no new matter can be offered in evidence by a defendant who has simply denied the plaintiff's allegations, unless it directly tends to disprove a fact to be, in the first instance, affirmatively estab- lished by the plaintiff. The plaintiff is not permitted to prove good character, in the first instance, nor need he prove malice, or the untruthfulness of the defamatory words. The former is presumed, and the falsity of the charge and the malice necessarily follow. Facts in justification, either as showing the truth of the charge or that the publication was privileged, were always re- quired to be specially pleaded. Facts in mitigation are just as essentially new matter ; they disprove no fact which the plaintiff is bound to establish ; they create issues upon which no evidence can be offered until raised by the defendant ; they should then be set up in the answer. 1 Beardsley v. Bridgman, 17 Iowa, 290, per Dillon, J. 430 CH. XVIII.] OF COUNTEK-CLAIM8. § 367 CHAPTER XVIII. Or THE Answer, continued. 3. Of Counter-claims. Skctiob' 867. Some general Considerations. 368. The Counter-claim not a Defense, except, etc. 369. The Statutes. 370. Recoupment and Set-off. 371. The first Class of Counter-claims in the first Subdivision. 372. The second Class in the first Subdivision. 373. The third Class in the first Subdivision. 374. Continued — The Authorities. 375. Continued — The Rulings in New York. 376. Continued — Indiana. 377. The second Subdivision. 378. Continued — Must the Demands be liquidated? 379. Continued — Continued — The Decisions. 380. Continued — Continued. 881. Continued — As to waiving a Tort. 382. Continued — Some Rulings not classified. 383. Equitable Counter-claims. 384. Continued. 385. Some so-called equitable Counter-claims are really Defenses. 386. A judicial Limitation upon Counter-claims made in New Yort 387. Continued — Other Cases. 388. The View elsewhere. 389. Upon what is the Qualification based? 390. Cross-complaints or Petitions. § 367. Some general Considerations. — The counter-claim must be between the same parties. If it is necessary to bring in other parties, the matter cannot be presented as a counter-claim, but a new action may be commenced, although several of the states have obviated this necessity by expressly authorizing the making of new parties.^ The answer which sets up a counter- 1 Code Civ. Proc. Ohio, I 96; Code Civ. Proc. Ind., g 63; Dig. Ark. 1874, §4571; Code Iowa 1873, J 2662 ; Code Civ. Proc. Kan., g 97 ; Code Civ. Proc. Neb., § 103. The Code of Civil Procedure of New York of 1876 (§ 501) provides for a counter-claim against the person whom the plaintiff represents. 431 § 3G8 OF PLEADINGS. [PAET II. claim must state facts which constitute a cause of action against the plaintiff, and its sufficiency is to be governed, by the same rules that would apply to the complaint or petition if the defendant had sued the plaintiff.^ No special form of words is necessary, but it must appear that the defendant intended to make a claim against the plaintiff in his own favor. The usual and most satisfactory way is for the pleader to designate his demand as a counter-claim, and pray for the affirmative relief which he seeks. ^ And it has been held that if the new matter, although it may entitle the defendant to affirmative relief, is set up as defensive merely, and it constitutes at law such defense, it will not be treated as a counter-claim.' The counter-claim is founded upon a cause of action existing in favor of the defendant against the plaintiff, which he may, at his option, prosecute independently. This is the general rule ; but in some of the states that right is qualified — as, in Ohio, if the defendant omit to set up the counter-claim or set-off, he cannot, in a subsequent action thereon, recover costs ;* and this provision is adopted in Kansas ^ and in Nebraska.'' In California he and his assignee are prohibited from subsequently prosecuting a cause of action em- braced in the first subdivision of counter-claims.^ § 368. The Counter-claim not a Defense, except, etc. — The answer consists of a defense and a counter-claim, and the distinc- tion between the two must be constaiitly kept in mind. A de- fense, as we have seen, goes to the plaintiff's right of action. It ' Vassear u. Livingston, 13 N. T. 248 ; Merritt v. Millard, 5 Bosw. 645 ; Allen ». Haskins, 5 Duer, 332. 2 Bates V. Eosekranz, 37 K Y. 409. ' Burrall v. De Groot, 5 Duer, 379. It is certainly reasonable to require that the plaintiff be distinctly advised as to whether the defendant designs to make a counter- claim, that he may be prepared to meet it. In consequence of the difficulty, in many cases, in deciding whether the defendant intended to present new matter as defensive, or as a counter-claim, the Supreme Court of Wisconsin decided, at January term, 1876, that " hereafter no averment in answer will be held to constitute a counter- claim unless it is so denominated, and the appropriate relief praj'ed." Stowell v. Eldred, 39 Wis. 614. In Kentucky the words "set-off," or "counter-claim,'' must be in the caption. Bullitt's Code Kj-., J 973. * Code Civ. Proc. Ohio, § 95. 6 Code Civ. Proc. Kan., I 96. « Code Civ. Proc. Neb., ^ 102. ' Code Civ. Proc. Gal. 1874, J 439. 432 CH. XVIII.] OF COUNTEE-CXiAIMS. § 368 either goes to his cause of action, like the old plea in bar, or to his right to recover in the present proceeding, like dilatory pleas ; but in either case it is a negation — a denial of the facts, or some material fact, pleaded by the plaintiff, or a denial of his right to recover because of some other facts not appearing in making out his case. The one is the denial spoken of in the statute ; the other is the statement of new matter constituting a defense. Neither of these makes any claim on behalf of the defendant except one purely defensive ; if he succeed, the judgment will be that the plaintiff take nothing by his suit, and the defendant recovers noth- ing but his costs. But.it frequently happens that the plaintiff is owing the defendant an ordinary debt, or the defendant has suf- fered damage from some breach of contract or duty on his part, or has some other cause of action against him which does not de- pend upon the plaintiff's action or right of action, and which may be prosecuted whether the plaintiff sues or not. This right of action on the part of the defendant cannot with propriety be called a defense, nor can the pleading in pursuance of it be called a statement of new matter constituting a defense, although that term is sometimes loosely used. The statute has supplied a term new in our jurisprudence, but comprehensive, and, with the lim- itations upon its application, exact in its meaning. It is a coun- ter-claim — the answer may contain a statement of new matter constituting a defense " or a countei'-claim," a demand not an- tagonist to, or destructive of, that of the plaintiff; not against, but counter — in an opposite direction to it. This, however, is not always true. We have heretofore seen' that, in large classes of equitable defenses, the same facts constitute both a defense and a counter-claim. This is true when the affirmative relief is essential to the defense, when an affirmative judgment on behalf of the de- fendant furnishes, of itself, the grounds of the defense, and when, without it, there could be no defense. In such case the counter- claim stops the plaintiff's proceeding, and, if successful, effectu- ally antagonizes his demand — doing the work of a perpetual in- junction under the old procedure. The instances heretofore cited are when, in an action upon a written instrument, the defendant Ante, II 348-351. 433 § 369 OF PLEADINGS. [PAET II. interposes fraud or mistake in writing it, and asks for such a reformation tliat the instrument, as reformed, would show that the plaintiff had no cause of action ; and also when, in an action of ejectment, the defendant can only contest the plaintiff's right by a judgment for a specific performance of the contract under which he has entered. There are other cases when a defendant's equitable counter-demand, though not antagonizing a money de- mand which the plaintiff may have against another defendant, yet may effectually destroy or impair the equitable relief which he may seek. I refer to counter-liens, where one of the defendants seeks to enforce a lien against the debtor defendant prior or supe- rior to that of the plaintiff.^ So, then, we see that the distinc- tion between a defense and counter-claim is only marked and cer- tain in cases where a cross-demand was formerly allowed in courts of law, as distinguished from the equity courts ; that various cross- demands formerly cognizable in the latter courts, whether by in- junction against the recovery of a legal demand, or whether inter- posed to a demand purely equitable, are defensive in their nature, and may destroy or modify the plaintiff's right. § 369. The Statute. — In most of the states the counter-claim is described in the following language : ' ' The counter-claim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judg- ment might be had in the action, and arising out of one of the following causes of action : ( 1 ) a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of plaintiff's claim, or connected with the subject of the action; (2) in an action arising on contract, any other cause of action arising also on contract, and existing at the com- mencement of the action."^ In Ohio, Arkansas, Kansas, and Nebraska the counter-claim embraces only the first subdivision, ' See § 390, as to cross-demands against a co-defendant. 2 Code Proc. N". Y., § 150 ; Wag. Stat. Mo. 1874, p. 1016, p3 ; Code Proc. Minn., ? 84 ; Code Civ. Proc. N. C, § 101; Code Proo. S. C, § 173; Code Civ. Proc. Fla., § 101; Code.Civ. Proc. Cal. 1874, J 438, omitting the words "contract or," in the first subdi- vision ; Code Civ. Proc. Greg., § 72, omitting the words " or connected with the subject of the action ; " Rev. Stat. Wis., ch. 125, § 11, adding a clause authorizing counter- claims in all cases where the plaintiff is a non-resident. 434 CH. XVIII. J OF COUNTER-CLAIMS. ' § 370 and a set-off is also allowed substantially as provided in the second subdi\'ision ; ' thus, under the terms "counter-claim" and "set- off," the statute covers very nearly the same things that, in other states, are included in the term " counter-claim," although there is a difference, which will be noted as we proceed. It will, there- fore, be unnecessary hereafter to refer specifically to the term " set-off," as used in these states, except when noting these differences.^ The provisions in the codes of Kentucky, Indiana, and Iowa conform very nearly to those in the last-named states.^ § 370. Recoupment and Set-off. — So far as concerns those counter-demands which were formerly recognized in the law courts, the statute embraces in the two subdivisions what was known as recoupment and set-off. Anciently, neither was al- lowed, but ever}' one holding an affirmative demand was required to prosecute it by an independent action, and the chancellor might be called on to decree a set-off between the judgments obtained. But the English statutes, and the statutes of all the states, have 1 Code Civ. Proc. Ohio, H 94, 97 ; Code Civ. Proc. Kan., §^ 95, 98 ; Code Civ. Proc. Neb., ?? 101, 104; Dis;. Ark. 1874, ?H570^572. 2 The language of the section pertaining to a set-off is this: "A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising on contract, or ascertained by a decision of the court.'' 3 Kentucky — Bullitt's Code: Sec. 95. "An answer may contain, first, a traverse; second, a statement of facts which constitute an estoppel against, or avoidance of, a cause of action stated in the petition ; third, a statement of facts which constitute a set-off or counter-claim ; fourth, a cross-petition. Sec. 96. First, a counter-claim is a cause of action in favor of a defendant against a plaintiff, or against him and another, which arises out of the contract or transaction stated in the petition as the foundation of the plaintiff's claim, or which is connected with the subject of the action; second, a set-off is a cause of action arising upon a conti-act, judgment, or award in favor of a defendant against a plaintiff, or agiiin^t him and another, and it cannot be pleaded exceptinanactionuponacontract, judgment, or award." Indiana: Sec. 59. "A coun- ter-claim is any matter arising out of, or consistent with, the cause of action, which mio-ht be the subject of an action in favor of the defendant, or which would tend to rediice the plaintiff's claim or demand for damages." Sec. 57. "The set-off' shall be allowed only in actions for money demands upon contract, and must consist of matter arisino- out of a debt, duty, or contract, liquidated or not, held by the defendant at the time the suit was commenced, and matured at or before the time it was offered as a set-off" Iowa: Sec. 2659. "Each counter-claim must be stated in a distinct count or division and must be, first, when the action is founded on contract, a cause of action, also, arising on contract, or ascertained by the derision of ii court; second, a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of 435 § 370 OF PLEADINGS. [PAKT II. long since, in actions upon contract, allowed contract debts to be set off against the plaintiff's demand, and, upon the trial of the orifidnal action, and without the intervention of a statute, the courts allowed the defendant, when the contract in suit laid mu- tual duties and obligations, to meet the plaintiff's demand by a claim for a breach of duty on his part. This was called recoup- ment, and went only to the reduction or extinguishment of the plaintiff's claim. The set-off is provided for in the second class of counter-claims in plain and unambiguous language, although something more than the old set-off is thus authorized. The sub- ject-matter of a set-off is regulated by statute in the several states, and they substantially concur in providing, as in the practice codes, that a set-off shall only be allowed in actions founded upon contract, and only of obligations springing from contract. But in regard to the first class of counter-claims, there is more uncer- tainty. They are not elsewhere authorized by statute, and the demands, other than a set-off, that can be prosecuted in the nat- ure of a cross-action are, in most of the states, provided for only in the clause under consideration. This clearly covers what was formerly known as recoupment, and it does more.^ Eefer- them, arising out of the contracts or transactions set forth in the petition, or con- nected with the subject of the action; third, any new matter constituting a cause of action in favor of the defendant, or all of the defendants i more than one, against the plaintiff, or all the plaintiffs if more than one, and which the defendant or de- fendants might have brought when suit was commenced, or which was then held, either matured or not, if matured when so pleaded." The Code of Civil Procedure of New York of 1876 (§ 501) has made important changes in the first paragraph, which, as amended, reads as follows: "The counter-claim specified in the last sec- tion must tend, in some way, to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff; or, in a proper case, against the person whom he represents, and in favor of the defendant, -or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action." ' In Grand Lodge v. Knox, 20 Mo. 433, is an opinion, delivered in 1855, by a learned and able judge, Leonard, discussing the general doctrine of recoupment ; and the sub- ject, as then understood, is presented as follows : " The common law, confining every suit to the particular subject of litigation that gave rise to it, rigidly excluded all matters of set-off; but the English Court of Chancery, extending the narrow remedies of the common law, in order to prevent circuity of action and suppress multiplicity of litigation, introduced the principle into their system from the civil law, where it ex- isted under the name of compensation. This method of settling cross-demands in one suit, when once introduced, recommended itself so strongly, by its natural equity and practical usefulness, that it was ultimately adopted, to a limited extent, both in Eng- 436 CH. XVIII. J OF COUNTER-CLAIMS. § 370 ence is had to the note to show what was understood by the term " recoupment," before the adoption of the Code, in those states whose courts were most liberal in allowing it, and the reader will presently see that the provision of the statute in regard to coun- land and the United States, in various statutes of set-off, and still further, in our own state, by the statute in relation to the failure of consideration. These acts concern- ing set-off, however, only recognize the right of persons mutually indebted to one an- other in ascertained amounts, under independent contracts, to set off their respective debts by way of mutual deduction, so that, in any action brought for the larger sum, the residue only should be recovered ; and so excluded from their operation claims for unliquidated damages, occasioned either by wrongs done or obligations violated. These were left to the common law, and the same reasons that forced the doctrine, to a partial extent, into the statute law of the land, still continuing to operate, the old doctrine of recoupment has been recently greatly extended in its practical applica- tion. In Dyer's Reports (2 b, 7) it is laid down, in the reign of Henry Vm. ; 'If a man disseize me of land, out of which a rent charge is issuiint, which has been in arrears for several years, and the disseizor pay it, if the disseizee recover in our assize, the rent that the disseizor paid shall be recouped in damages.' Again, in Coulter's case (3 Co., pt. 5, p. 30), it is said : ' And as to the case of recouper in damages, in the case of rent service, charge, or seek, it was resolved that the reason of the recouper in such case is, because otherwise, when the disseizee reenters, the arrearages of the rent serv- ice, charge, or seek would be revived, and, therefore, to avoid circuity of action, and ' drcultus est evitandus, et boni judicis est Hies dirimei-e, ne lis ex lite oriatur,' the ar- rearages during the disseizin shall be recouped in damages.' Pullei v. Staniforth (11 East, 232) was an action on a policy of insurance, upon a voyage to Russia, with a provision that, if the cargo were denied permission to be landed, the master should, on his return, receive in London £2,500. The outward cargo was denied landing, but the master, instead of returning direct, went by Stockholm, and earned freight. The master claimed £2,500, but the freight earned was recouped out of the sum agreed to be paid. In Barbour's Law of Sot-off it is laid down that 'there is a species of de- fense somewhat analogous to set-off in character, which a defendant in some cases is allowed to make, and which is called recoupment. This is where the defense is not presented as a matter of set-off arising on an independent contract, but for the purpose of reducing the plaintiff's damages — for the reason that he himself has not complied with the cross-obligations arising under the same contract. Thus, in an action to re- cover compensation for services rendered, the employer is entitled to show, by way of recoupment of damages, the loss sustained by him through the negligence of the per- son employed ; and so in regard to a breach of warranty.' Kecoupment, in its origin, we are told (Sedgw. on Dam., 3d ed., 431), 'was a mere right of deduction from the amount of the plaintiff's recovery, on the ground that his damages were not as high as he alleged;' and Viner's Abridgment, title 'Discount' (3, 4, 9, 10), is referred to as authority. The American cases, however, at least in New York, Massachusetts, Alabama, and in some few other states, now go to the full length of declaring that all matters of counter-claim arising out of the same transaction, and not technically the subject of set-off. can be set off by way of recoupment of damages, provided the de- fendant (plaintiff) has been properly apprised of the defense, and these cases will now be briefly referred to : In a suit for the price of goods sold (McAlister v. Keab, 4 "Wend. 483, and the same case, 8 Wend. 109, in error), the damages occasioned by a 437 § 370 OF PLEADINGS. [PART II. ter-claims embraced in the first subdivision is broader and more comprehensive than anything before known in the common-law courts ; and he will also see that those in the second subdivision breach of the warranty were recovered in diminution of the price. Mr. Chancellor Walworth said : 'I consider the rule adopted on this subject perfectly just and equi- table, where the plaintitf has notice of the defense intended to be set up, and calcu- lated to do complete justice between the parties, without putting them to the expense of two suits, when one is more likely to eifect the object of fair litigation. Indeed, if one of the parties is insolvent, it is the only wa.y in which justice can be done ; at least, as to small demands that will not bear the expense of a suit in chancery to obtain an equitable set-off.' In a suit for the contract price of building a wall (Ives v. Van Epps, 22 Wend. 155) the defendant was allowed to diminish the amount of the plaint- iff's recovery by his own damages, sustained on account of the plaintiff's failure to construct the wall according to his covenant. In a suit for the price of wood sold (Batterman v. Pierce, 3 Hill, 171), the defendant was allowed, out of the price to be recovered, the damages sustained in the destruction of part of the wood by a fire, against which the vendor had guaranteed. Upon a motion for a new trial, Bronson, J., said : ' It is not a question of set-off, as the plaintiff's counsel seem to suppose, but of recoupment of damages. When the demands of both parties spring out of the same contract or transaction, the defendant may recoup, although the damages on both sides are unliquidated ; but he can only set off where the demands of both parties are liquidated, or capable of being ascertained by calculation.' To the objection that the damages claimed did not spring out of the contract of sale, but arose under a collat- eral agreement to indemnify against fire, it was said 'that, although there could be no recoupment by setting up the breach of an independent contract on the part of the plaintiff, here the bargain was one and the same.' In Allaire v. Whitney (1 Hill, 484, and 1 Comst. 305), in a suit for rent, the lessee set off the damages sustained by reason of the lessor's representation that the leased premises embraced grounds afterwards ascertained to belong to another, and the amount recouped was the rent paid for the use of the ground. In a suit upon a bond for the price of land sold (Van Epps v. Har- rison, 5 Hill, 63), the buyer set off his damages occasioned by the vendor's fraud in the sale ; and to the same effect is McCullough v. Cox, 6 Barb. 386. The same liberal doctrine has been adopted in Massachusetts. In a suit by a factor (Dodge v. Tileston, 12 Pick. 329) to recover against his principal, the defendant was allowed to set up the plaintiff's negligence in selling the defendant's goods, by way of diminishing the dam- ages; and, after reviewing the cases, the court said: 'The question for a time may have ranked in the class of legal uncertainties, but it appears to us, at present, to be settled on reasonable and satisfactory principles.' In Hunt v. The Otis Co., 4 Meto. 464, the plaintiff sued for his wages, and the company were allowed to set off their dam- ages sustained by reason of the plaintiff's leaving their service, contrary to an implied stipulation to give them four weeks' notice of an intention to quit. It is received, also, in its largest sense, in Alabama. In Hatchett v. Gibson (13 Ala. 587) a warehouseman sued for advancements made on cotton deposited with him, and the defendant was allowed to set off, by way of recoupment, the damages he had sus- tained by the destruction of his cotton through the plaintiff's negligence. The court says : ' The contract between the parties was that the latter should deposit his cotton in the warehouse of the former, and that the plaintiff should advance on it, retaining a lien for his reimbursement. To this contract the law tacitly annexed the stipulation 438 CH, XVIII.] OF COUNTER-CLAIMS. § 371 are not necessarily limited to liquidated demands, to which the set-off was formerly understood to be confined, nor to mat- ters which could be set up by the defendant in the courts of law, as distinguished from those of equity. § 371. The first Class of Counter-claims in the first Subdi- vision. — The cause of action which may be thus counter-claimed must be one which arises " out of the contract, or transaction. that the plaiiitiif should take ordinary care in its preservation, and, if he did not, would pay the defendant for any loss resulting from neglect. These several stipulations, although they may emhrace distinct duties and ohligations, constitute one entire con- tract. This is sufficiently shown by their mere statement, and the breach of any un- dertaking, on the part of the plaintiff, by which the defendant sustained damage, would furnish a proper ground of recoupment in the present action, which is brought to recover back the advances made by the warehouseman.' Several of the states, however, have not yet carried the doctrine to the extent that it has been carried in the states to whose decisions we have referred, although the decisions in all the states are evidently tending rapidly that way, and the English courts, much less inclined than our own to relax old rules, have, as yet, fallen far short of the American decisions. They now hold, however, contrary to their decisions prior to Basten v. Butter (7 East, 479), tluit, upon a sale, or a special contract for work at a specific price, the defend- ant may show, in diminution of the amount to be recovered, a breach of warranty, or the failure of the contractor to do the work as required ; and, in Mondell v. Steel, decided in 1841 (8 Mee. & W. 858), Parke, B., addressing himself to this subject, remarked: 'Formerly, it was the practice, when an action was brought for an ag.ued price of a specific chattel sold with warranty, or of work which was to be performed according to contract, to allow the plaintiff to recover the stipulated sum, leaving the defendant to a cross-action for a breach of the warranty, or contract, in which action as well the difference between the price contracted for and the real value of the arti- cles, or of the work done — as, any consequential damage — might have been recovered ; and this course was simple and consistent.' 'But after the case of Basten v. Butter, a different practice, which had been partially adopted before in the case of King v. Basten, began to prevail, and, being attended with much practical convenience, has since been generally followed ; and the defendant is now permitted to show that the chattel, by reason of the non-compliance with the warranty, in the one case, and the work, in consequence of the non-performance of the contract, in the other, were dimin- ished in value. It is not so easy to reconcile these deviations from the ancient prac- tice with principle, in those particular cases above mentioned, as it is in those where an executory contract, such as this, is made for a chattel to be manufactured in a par- ticular manner, or goods to be delivered a*ccording to a sample, when the party may refuse to receive, or may return in a reasonable time, if the article is not such as bar- gained for; for, in these cases, the acceptance or non-return affords evidence of a new contract, on a quantum valebat. It must, however, be considered that, in all these cases of goods sold and delivered with warranty, and work, and labor, as well as the case of goods agreed to be supplied according to a contract, the rule which has been 439 § 371 OF PLEADINGS. [PAKT H. set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." Three classes of counter-claims are here provided for : first, a demand existing in favor of the defendant and against the plaintiff, which arises out of the contract upon which the plaintiff has based his action ; second, a demand so existing which arises out of the transac- tion — a broader term than contract — upon which the plaintiff has based his action ; and, third, a demand so existing which need not necessarily arise out of either the contract or the transaction involved in the action, but it is sufficient if it is connected with the subject of the action.^ Under the first class, the original action being based upon a contract, if the plaintiff is liable, at the suit of the defendant, in respect to the same contract, the latter may present his demand by way of counter-claim. This covers, as we have seen, what was known as recoupment, and by the terms of the statute extends to equitable demands. Questions of difficulty will seldom arise in respect to this class, as it is easy to determine whether the defendant's demand arises out of the con- tract in suit. Thus, in an action to recover the rent stipulated in a lease, the defendant may present a counter-claim based upon a breach, on the part of the plaintiff, of other provisions in the same lease. ^ So, in an action upon the implied agreement to pay for work and labor, the defendant may counter-claim the damages suffered from a breach of the implied agreement that the work found so convenient is established, and that it is competent for the defendant, in all of those, not to set off, hy a proceeding in the nature of a cross-action, the amount of damages which he has sustained by breach of the contract, but simply to defend him- self by showing how much less the subject-matter of the action was worth by reason of the breach of contract.' " The opinion then proceeds to show that the counter- claim should be allowed in the case before the court, which was a demand by the de- fendant, when sued upon a bond given for the purchase-money of land, of the value of fixtures removed from the premises without his knowledge or consent, after the bargain was made, but before the papers were executed, and cites, further. House v. Marshall, 18 Mo. 368, where the damages sustained by a purchaser of land, by reason of the fraudulent representations of the seller during the treaty, were allowed to be set up in diminution of the price sought to be recovered. In the opinion as quoted the citations have, in some instances, been corrected. 1 Xenia Branch Bank v. Lee, 7 Abb. Pr. 372. » Orton V. Noonan, 30 Wis. 611 ; Cook v. Soule, 56 N. T. 420 ; Myers v. Bums, 35 N. Y. 269. 440 CH. XVni.J OF COUNTER-CaLAIMS. § 371 shall be skillfully done,^ or if the work be done under a special contract.^ If the buyer of goods bring an action against the seller for not completing the contract, the latter is permitted to counter-claim the price of the goods already delivered ; ^ and so, if one is sued for breach of an agreement not to set up business in a certain place, he may counter-claim the amount agreed to be paid for the good-will.* In an action for rent due upon a verbal lease, the defendant may show that the plaintiff, in making the lease, agreed to build a certain fence, and couiater-demand dam- ages arising from his neglect to build it.° And in Kentucky, both under the Code and at common law, in an action for the price of property sold, the defendant may recoup damages resulting from the failure of the consideration.^ So, in an action for the contract price of building a bridge, the defendant may counter- claim damages for failure to build it according to contract.'' In Indiana an action was brought against the bailee of a horse, who kept a livery and feed stable, and who had been hired to keep the horse, for carelessness and negligence in keeping him, by which he broke his leg and became useless. The defendant was permitted to counter-claim the value of his keeping, as growing out of the same contract or transaction.^ So, in New York, the defendant answered that the notes in suit were given for land, and that, at its sale, the plaintiff falsely and fraudulently repre- 1 Eaton V. Woolly, 28 Wis. 628. ' Bishop V. Price, 24 Wis. 480. " Leavenworth v. Packer, 52 Barb. 132, as to a contract to deliver coaL * Baker w. Connell, 1 Daly, 469. ' Hay V. Short, 49 Mo. 139. 6 Miller v. Gaither, 3 Bush, 152. ' Moore ». Caruthers, 17 B. Mon. 669. And in an action for the price of a mill, and for accounts due, including an account for $500 against one C, the defendant was allowed to set up, by way of counter-claim, the sum of f 190 which had been allowed to C. as a deduction from the assigned account. Cook v. Gray, 2 Bush, 121. 8 Griffin o. Moore, 52 Ind. 295. " The only objection," says the court, " to this ruling is that the complaint is for a tort, and not founded on contract. This objection is wholly untenable, though unnecessary and surplus words as to the carelessness, maliciousness, and willfulness of the defendant are used in the com- plaint." The spirit of this decision would seem to be that, when a duty arises out of a contract, the neglect of which could be charged as a tort, a pleading charging the wrongful neglect of the duty is really founded upon the contract or transaction, with which a counter-demand arising out of the same contract is so connected that it can be counter-claimed. 441 § 372 OF PLEADINGS. [PAKT n. sented that the land included a certain knoll, which did not, in fact, belong to the farm ; that the knoll would have enhanced the value of the farm $5,000, and he was allowed to counter-claim damages for such false representations.* § 372. The second Class In the first Subdivision. — The two other kinds of counter-claim named in the first subdivision — to wit, causes of action arising out of the transaction, as distin- guished from the contract set forth in the complaint as the founda- tion of the plaintiff's demand, and causes of action which are connected with the subject of the action — present questions of more difficulty. It is clear, however, that the term "transac- tion" is a broader one than " contract" — is intended to extend to other matters upon which an action may be based. The New York Supreme Court, at general term,^ recognizes the fact that a contract is a transaction, but a transaction is not necessarily a contract, and gives the same classification contained in the last sec- tion : ' ' No cases can be supposed to which the first subdivision can be applied" — referring to the subdivisions of counter-claims — " unless it be one of three classes, viz. : first, in actions in which a contract is stated as the foundation of the plaintiflF's claim, counter-claims which arise out of the same contract ; or, second, in actions in which some transaction not being a contract is set forth as the foundation of the plaintiff's claim, counter-claims which arise out of the same transaction ; or, third, in actions in which either a contract or a transaction which is not a contract is set forth as the foundation of the plaintiff's claim, counter-claims which neither arise out of the same contract nor out of the same transaction, but which are connected with the subject of the action." The transaction, then, upon which the action is based, may be something more than a contract — that is, it may be a tort ; and if we do not find that the plaintiff is liable to the defendant upon such transaction, it is because, from the nature of the wrong, there can be no such counter-liabihty. Cases have arisen where the defendant has been held to be liable to the plaintiff for something connected with the subject of the action, although the 1 Isham V. Davidson, 52 N. T. 237. » Per Woodruff, J., in Xenia Branch Bank v. Lee, 7 Abb. Pr. 372. 442 CH. XVIII. J OF COUNTER-CLAIMS § 373 action was founded upon a tort, as will appear in tlie next section but one, and notes ; but it is difficult to see how, in actions founded upon torts, such liability can spring from the very injury upon which the action is based. I know of no case where it has so arisen ; and yet the term ' ' transaction ' ' is broad enough to embrace anythuig upon which .an action can be based ; and if a case shall arise ia which the defendant is liable to the plaintiff for a wrong based upon the matter which is the foundation of the ac- tion, whether it be a contract, or tort, or anything else, such lia- bility is covered by the provision under consideration. § 373. The third Class in the first Subdivision. — The statute farther authorizes a counter-claim which arises out of a cause of action which is connected with the subject of the action. This covers by far the larger class of counter-claims, other than those embraced in the second subdi^dsion ; for where there is-one case in which the defendant has a right of action against the plaintiff arising from the contract or transaction set forth as the founda- tion of his action, there are many in which the plaintiff may be liable to the defendant in respect to the subject-matter of his own action — that in respect to which the contract broken was made or the injury was done. And before we can understand the bear- ing of the provision, we must clearly appreciate what is meant by the phrase " subject of the action." I know of no reason why the same interpretation should not be given to the phrase in this connection as when it is used to designate a class of causes of action that may be united in one proceeding, and the reader is referred to the view then taken. ^ This general view is not elabo- rated in any of the reported cases ; it is not, perhaps, the prov- ince of courts to write essays, but only to apply the law to the facts before them ; but, by a preponderance of authority, it is recoD-nized, and the blunders that have been committed in this connection have chiefly arisen from not distinguishing the subject of the action from the cause, or from the object of the action, or from the facts which constitute it. Our system of pleading will never be reduced to a science until the statutory phrases applied 1 Ante, a 126. 443 § 374 OF PLEADINGS. [PART II. to and controlling it come to have a fixed signification. Tech- nics are essential to exact knowledge. The pleader may state, in common language, the facts that constitute his cause of action, because he describes the common events of life, and yet, in every step, he is controlled by the stern rules of legal logic. Loose- ness, indefiniteness, uncertainty in the interpretation of the phrases that control his action, leave him wholly at sea, and tossed about by the shifting winds of mere opinion, or, perhaps, caprice. It is because a fixed and definite meaning has not been given to the term " subject of the action" — because it so often fails to present to the mind any distinct conception — that we find so many diiferences of opinion in respect to this class of counter- claims. And, as we shall presently see, nowhere does the con- ception seem to be less certain than in the great state to whose jurisprudence we owe so much, and whose enlightened bar first called the new system into existence. §374. Continued — The Authorities. — In an action upon a bond given for the purchase-money of land, the defendant is allowed to counter-claim damages for the removal and conversion of fixtures without his knowledge, after the contract of sale, and before the formal transfer of the land and execution of the bond.^ In an action upon a promissory note given for a farm, the de- fendant may counter-claim damages for the improper removal, after the sale, of growing crops.^ In a statutory proceeding aarainst the owner and builder of a house to enforce a lien for lumber for the house, furnished the builder, the owner was allowed to set up, by way of counter-claim, that the plaintiff had guaranteed that the builder should build the house according to a certain contract, which he had not done.^ In Kentucky, in an 1 Grand Lodge v. Knox, 20 Mo. 433. Althougb this suit was brought under the Code, the discussion was chiefly confined to the old doctrine of recoupment. Ante, 2 370, and note. ' Gordon v. Bruner, 49 Mo. 570. It was doubtful in this case whether the de- fendant intended to present his counter-claim under the first or second class. It was held that he might do either ; under the first class, because the demand was con- nected with the subject of the action; and, under the second, because the defendant might waive the tort and treat the crops removed as sold to the plaintifl'. 2 McAdow V. Eoss, 58 Mo. 199. In this case the contract of guaranty was connected with the subject of the action. 444 CII. XV 1 11. J OF COUNTER-CLAIMS. § 374 action on an injunction bond, when by means of the injunction the plaintiff had been kept out of possession of a farm, seeking damages for thus being deprived of its possession, the defendant was allowed to set up, by way of counter-claim, trespasses com- mitted by the plaintiff in carrying away a crop of corn planted by her while she was in possession under the injunction.^ In an action by a railroad company upon a subscription of stock, the de- fendant was allowed to counter-claim damages for the right of way through his farm, the plaintiff having agreed that the damages should go in discharge of his subscription.^ In Wisconsin, in an action to quiet title, an answer averring possession and title by a valid tax sale, and asldng affirmative relief, was held to present a good counter-claim.^ A purchaser of land by deed, with the usual covenants, mortgaged the same to the grantor ; held, in an action for foreclosure, that the grantee might demand damages for breach of the covenants in the grantor's deed.* In the same state the defendant in ejectment is allowed to set up the value of improvements against the claim for mesne profits ;° and, also, where the action is by a tenant in common for an undivided half 1 Tinsley v. Tinsley, 15 B. Mon. 454. ^ Louisville & Nashville E. Co. v. Thompson, 18 B. Mon. 735. Several other cases have arisen in Kentucky where counter-claims have been allowed as connected with the subject of the action. In an action against a surety upon a promissory note, the defendant was allowed to claim damages ,for the failure on the part of the payee to procure the signature of another surety, as he had agreed to do. Murphy v. Hubble, 2 Duv. 247. In an action by a mortgagee against the mortgageor, for wrongfully taking possession of the mortgaged property before forfeiture, the defendant may plead the mortgage debt as a counter-claim. Brown v. Phillips, 3 Bush, 656. ' Jarvis v. Peck, 19 Wis. 74. * Akerly v. Vilas, 21 Wis. 88. And may recover what he has been obliged to pay to remove a tax lien. Eaton v. Tallmage, 22 Wis. 526. Also, in an action upon a note given for a mill, the defendant may demand damages for breach of the covenants in the conveyance to him in regard to the height specified to which he might raise the water. Walker v. Wilson, 13 Wis. 522 ; Hall v. Gale, 14 Wis. 54. See, also, Butler V. Titus, 13 Wis. 429, as to contract of a wheelwright. In each of these cases the counter-claim may, perhaps, come as well under the second subdivision, as the plaintiif 's cause of action is founded upon contract, and the defendant's demand arises also upon contract. , The claim being unliquidated, it would not, however, under the old practice, have been allowed as a set-off; and as it is based upon a contract con- nected with the subject of the plaintiff's action, it may also be included in the first. 5 Davis V. Louk, 30 Wis. 308. And the opinion also allows the landlord, in an action by the tenant for improvements, to set up the rents and profits, use of the prem- ises, etc. 445 § 374 OF PLEADINGS. [PART II. of a parcel of land, the defendant may set up a parol partition and occupancy under it, and ask judgment that the plaintiff release. "^ In a suit upon a promissory note, the defendant was allowed to set up, as a counter-claim, damages arising from the wrongful sale of property pledged as security for the note ; ^ and in an action for injuries caused to plaintiff's boat by a break in defendant's canal, the defendant was permitted to answer that the break itself was caused by plaintiff's negligence, and ask for a judgment for the damages thus done to the canal.' Where the defendant was sued, upon a lease, for taking away fixtures, con- trary to its terms, he was allowed to counter-claim, as for a conversion, the value of certain chattels which the plaintiff would not allow him to remove.* Several cases have arisen where the action was brought to recover the purchase-money of land, and the defendant sought to counter-claim damages arising from fraud and deception in its sale. He has unhesitatingly been allowed to do so, even when promissory notes have been given for the purchase-money ; for it is perfectly clear that, if the cause ' Buzzell V. G-allaher, 28 "Wis. 678. The court also says that such partition and occupancy furnish a good defense under a denial. ' Ainsworth v. Bowen, 9 "Wis. 348. Scheunert v. Kaehler, 23 Wis. 523, was an action of tort for the conversion of the proceeds of flour and barley sold by the defendant for the plaintiff, on commission. The de&ndant set up a counter-claim, alleging that he had leased to the phiintiff a flour and barley mill, and, by covenants in the lease, the plaintiff agreed to furnish employment for two teams, belonging to defendant, in hauling flour to Milwaukee, at 50 cents per barrel ; and that the flour manufactured by the plaintiff should be forwarded to defendant, to be sold on com- mission ; that the flour, etc., named in the complaint was sold under said contract, and that the plaintiff had broken his said covenants, to the damage of defendant, etc. A demurrer to this counter-claim was sustained. The opinion of the court admitted that, if the action had been upon the contract, the counter-claim would have been a good one, but as the plaintiff had chosen to sue in tort, it could not be set up. The reasoning seems inconclusive. The court says that "the subject of the action is the tort or wrong done in the conversion of the money." This confounds the subject of the action with the cause of action, making them one. The subject-matter of the plaintiff's action — that in respect to which the wrong was committed — was the flour and money received from its sale. The defendant, by his counter-claim, shows that it was sold under a contract, which the plaintiff has violated; hence the connection between the subject of the action and the subject of the counter-claim. The court admits that if the action had been upon the contract, the counter-claim would have been good. Should the plaintiff, by changing the form of the action, be permitted to thus cut off the defendant's right? See Thompson v. Kessel, 30 N. T. 388. ' ilcArthur v. Green Bay & Mississippi Canal Co., 34 Wis. 189. * Vilas ■/. Mason, 25 Wis. 810, 446 CH. XVIII. J OF COUNTER-CLAIMS. § 375 of action on his part does not directly arise out of the contract sued on, it is certainly connected with the subject of the action — with that in respect to which the contract was made.^ In North Carolina full effect is given to this part of the Code. In one case^ the defendant was sued for the conversion of a horse, and he was permitted to set up the fact that the horse was sold by him to the plaintiff in exchange for some land, that the plaintiff fraudulently deceived him in regard to its location, and ask for a rescission of the contract of exchange. In another, the defendant, who had been sued for the conversion of money and property while in the plaintiff's service, was permitted to counter-claim his wages while so employed. ** § 375. Continued — The Rulings in IVew York. — The pre- vailing, and I may say the controlling, view taken by the courts of New York as to the meaning of the phrase " subject of the action" differs essentially from that which is recognized in the cases cited in the last section, and, consequently, the right to counter-claim is greatly restricted. I will give a few of the New York cases — a number sufficient to show the construction there given to the statute. In a case which was taken to the Court of Appeals, the plaintiff had brought an action for rent due upon a lease of the ground-floor of a building, the upper stories of which were occupied by the landlord. The defendant had set up, by way of counter-claim, that the plaintiff, through defective pipes, negligently and maliciously permitted the waste-water from the upper stories to flow in upon the part occupied by defendant, ' House V. Marshall, 18 Mo. 368 ; Owens v. Rector, 44 Mo. 389 ; Morse v. Eatliburn, 49 Mo. 91 ; Timmons v. Dunn, 4 Ohio St. 680; Allen v. Shackelton, 15 Ohio St. 145; Goodwin v. Eobinson, 30 Ark. 535. ' Walsh V. Hall, 66 N". C. 233. " Bitting V. Thaxton, 72 N. 0. 541. Objection had been made because the action was one of tort. Eeade, J., after showing that there was but one form of action, says : "When the plaintiff files his complaint, setting forth the transaction, whether it be a tort or a contract, the defendant may set up any claim which he has against the plaintiff, connected with the transaction set up in the complaint, and this is called ' a counter-claim.' And where the plaintiff states the transaction, he cannot, by calling it one name or another — as, tort, or contract — cut off the defendant's counter-claim growing out of the same transaction. It is the transaction that is to be investigated, without regard to its form or name." 447 § 375 OF PLEADINGS. [PAET II. and, also, that he threw filthy water from the windows, so as to run in upon the demised premises, and the court sustained a demurrer to the counter-claim.^ Gr over, J., in delivering the opinion, says : " The demands are not connected with the subject of the action — that is, the rent agreed to be paid for the use of the premises." In another case, where the action had been brought upon a bond for rent, the defendant sought to recover damages of the plaintiff on account of the removal of fixtures placed upon the premises by the tenant, but he was not allowed to do so, inasmuch as nothing had been said in regard to them in the lease.'' The Superior Court of New York City held, in 1871,' that the term " subject of the action" meant the same thing as " cause of action," and cited an early case in the Court of Appeals, Borst v. Corey,* in which the court had held that the term " subject-matter " of a suit, contained in the Revised Statutes, was analogous to the term " cause of action," the court, in that case, treating the debt as the cause of action, rather than the wrong done the plaintiff by refusing to pay the debt. The- case was afterwards cited by the same court,* and in a brief opinion I find the following : " The words ' the subject of the action ' mean the facts constituting the plaintiff's cause of action." The Supreme Court also refuses to permit a tenant, in an action upon a lease, to counter-claim any damages suffered by him in the enjoyment of the premises in consequence of the improper conduct of the landlord, unless it was a breach of some of the covenants of the lease. Thus, the plaintiff, after the defendant had entered under the lease, had made certain street improvements which had hindered access to the premises and rendered their use less valuable, and, in an action for rent, the latter sought to counter-claim the damages he had suffered. "Perhaps, under the Code," says the opinion, "when the demands of both parties spring out of the same contract or > Edgerton v. Page, 20 N. Y. 281. 2 City of New York v. Parker Vein Steamship Co., 8 Bosw. 300 ; s. c, 12 Abb. Pr. 800 ; s. c, 21 How. Pr. 289. ^ In Chamboret v. Cagney, 2 Sweeny, 378. * 15 N. Y. 505. " In Lchmair v. Griswold, 40 N. Y. Superior Ot. 100. 448 CH. XVIII. J OF COUNTER-CLAIMS. § 375 transaction, the defendant may recoup, even though the damages are unliquidated. But the damages in this case claimed to be recouped do not arise out of the same contract, but from a tortious act, as claimed, of the plaintiffs in depriving them of access to a portion of the premises, and from a proper enjoyment thereof. These acts complained of are entirely independent of any covenant in the lease, and are only consequential and resulting from acts not committed upon the demised premises, the whole of which the defendants continued to occupy for the whole term." The defendant's claim was rejected, citing Edgerton v. Page.^ On the other hand, when the lease contains a covenant to keep the premises in repair, the tenant is allowed by the Court of Appeals to set up the amount expended by him in necessary repairs, and also damages resulting from the loss of the use of part of the premises for want of repairs.^ It is unnecessary to cite further. There are some cases not quite consistent with the above, but those cited indicate the prevailing view. It is thus seen that in the first subdivision of counter-claims little more is included — noth- ing, indeed, unless equitable matter — than what was formerly available by way of recoupment ; that, in an action upon con- tract, the courts of New York refuse to permit the defendant to set up, by way of counter-claim, any matter not a direct violation of the contract itself, and that its consideration, that in respect to which the contract was made — as, the premises in a lease — are not included in the phrase " subject of the action." If this be the proper interpretation to be given to the term, if there is no difference between the subject of the action and the cause of action, i. e., the wrong suffered by the plaintiff, or between it and the facts which constitute the cause of action, ^. e., the facts which show the wrong, or between the subject of the action and that which is due, to recover which is the object of the action, and if the connection spoken of in the statute is no more than the connection of which the defendant could formerly avail himself by way of recoup- ment, then these decisions are sound in principle, and should be followed elsewhere. But I am strongly impressed with the reason- ableness of the interpretation given in preceding sections, as not 1 Gallup V. Albany Ky. Co., 7 Lans. 471. 2 Myers v. Burns, 35 N. Y. 269. 449 29 § 376 or PLEADDVGS. [PAET II. only conforming more nearly to the equity practice which colors every page of the new procedure, but as the only one which recognizes any philosophical precision in the use of terms. If the term "subject of action " means the same as "cause of action," why is it used? If the phrase "connected with the subject of the action " means no more than arising out of the con- tract set forth as the foundation of the plaintiff's claim, why add it as an apparently new class ? The New York courts do not say that it means no more ; some of them say that it furnishes an additional class, yet in actions upon contracts of a legal nature this class is practically done away with. If, in an action upon a lease, as in the cases cited, an injury to the premises by the landlord cannot be set up by the defendant unless it has been expressly covenanted against, no connection would seem to be recognized not shown in the lease, which is the foundation of the action. Aside from confounding the terms "cause of action," "subject of action," etc., the words "connected with" are capable of a broad or of a narrow construction. The ends of justice would seem to be better subserved by giving them such a construction as to settle all the controversies between the parties which have any relation to each other .-^ § 376. Continued — Indiana. — The phraseology of the In- diana statute differs from that of New York, and the provision in regard to the first division of counter-claims is somewhat less comprehensive : " Sec. 95. A counter-claim is any matter arising out of or connected with the cause of action, which might be the subject of an action in favor of the defendant, or which would tend to reduce the plaintiff's claim or demand for dam- ' Mr. Van Santvoord, as necessarily vmder obligation to do, gives the construction which the phrase under consideration has received by the New York courts. Mr. Pomeroy, whose work covers the Codes of other states, and their construction, as well as that of New York, seems to labor under some embarrassment. In considering the union of causes of action in one complaint, where the term " subject of action " is used, he is very clear in distinguishing it from the "cause of action," " object of the action," etc., and gives it substantially the same construction as that which I have assumed to be the correct one. But in treating of counter-claims, where the same phrase is used, as if pressed by the authorities in his own state, he seems half driven from his former position. See Moak's Van Santvoord's PI. [* 565], [* 566], and Pom. on Rem., |5 475, 775. 450 CH. XVm.] OF COUNTER-CLAIMS, § 376 ages." There is some ambiguity in this language. The term " counter-claim " is used for the matter upon which it is founded, and the cause of action and the subject of an action do not in their nature seem to be distinguished from each other. The statute seems to require that the cause of action in favor of the defendant should be connected with the cause of action in suit, and hence we may expect to find in this state a class of counter- claims excluded which would be admitted elsewhere, to wit, those connected with the subject-matter of the plaintiff's action, as distinguished from his cause of action — that is, from the wrong he has sufiered. In an action for the rescission of a deed of exchange of land, upon the ground of fraud and false repre- sentation, the defendant, having denied the fraud, asked for a judgment for the possession, and for damages for waste and oc- cupation, and the countei'-claim as to the possession was allowed, as connected with the cause of action. The execution of the deed, being part of the transaction upon which both parties rely — the plaintiff asking its rescission, and the defendant possession under it — the cause of action and the counter-claim were held to be so connected as to authorize the latter. But the demand for waste was not allow^ed, because, under the Indiana statute, it could not be united with a demand for possession.^ In an- other case the plaintiff sued for the breach of a contract for the sale and delivery of tobacco, and the defendant was allowed to show readiness to deliver, and to demand damages for not receiving it.^ In an action for an injury to a horse sta- bled by defendant, he may, by counter-claim, recover the price of his keeping ; ^ and in ejectment a counter-claim was allowed, ask- ino- that defendant's title be quieted.* In an early case the court undertook to specify what the connection should be in order to authorize a counter-claim. " The question is. What is the legal efiect of the words, 'arising out of, or connected with?' Do they refer to matters which have an immediate connection with 1 Woodruff V. Garner, 27 Ind. 4. The court, in this cage, corrects a remark made in Slayback v. Jones, 9 Ind. 470, that a counter-claim was identical with recoupment, and says that it is much more, and embraces what was known as a cross-hill in equity. 2 Campbell v. Eoutt, 42 Ind. 410. 3 Q-riffin v. Moore, 52 Ind. 295. * McMannus v. Smith, 63 Ind. 211. 451 § 377 OF PLEADINGS. [PART 11. the transaction, or do they, also, those which have a remote rela- tionship to it, by a chain of circumstances which were not had in view in its inception ? * * * A counter-claim is that which might have arisen out of or which had some connection with the original transaction in view of the parties, and which, at the time the contract was made, they could have intended might, in some event, give one party a claim against the other for compliance or non-compliance with its provisions. We refer in this connection to actions ex contractu merely." ^ This language would seem to cut off all counter-claims which seek damages for a tort, and goes further than was called for by the case.^ In a suit by the assignee of a promissory note, given as the last payment upon a sale of real estate conveyed with warranty, the purchaser was allowed to counter-claim an amount he had been compelled to pay to discharge a lien upon the land.* § 377 . The second Subdivision. — The statute gives the second subdivision of counter-claims as follows: "2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action." This includes what was known, before the adoption of the Code, 1 Conner v. "Winton, 7 Ind. 523. ^ The action was to recover a deposit of money, and a counter-claim for damages for charging defendant with stealing the money was not allowed. It might well be said that a slander, though so connected with the money sought to he recovered, had no such connection with the cause of action — the wrongful detention of the money — that it could he set up hy cross-action, the connection being too remote, with- out saying that no tort could be so set up, because a tort could not be in view of the parties at the time the contract was made. This case was referred to and approved in Lovejoy v. Eobinson, 8 Ind. 399, where, in an action for damages caused by defend- ant's cattle in breaking into plaintiif 's close and destroying his crops, the defendant was not allowed to demand damages for beating and injuring the cattle in driving them out. Trespasses cannot be set up against each other, says the court. But why, if they come within the statute ? In Slayback v. Jones, 9 Ind. 470, in an action upon a note given for land and the growing crops, the defendant was not permitted to set up, by way of counter-claim, the value of part of the same crops, which the plaintiff — the payee of the note — had wrongfully carried away, because trespass cannot be counter-claimed. In Love v. Oldham, 22 Ind. 51, a more liberal view is taken. The defendant in a suit upon » note was permitted to charge fraud and breach of war- ranty in the consideration of the note, either to diminish the plaintiff's demand or recover a balance over. » Stillwell V. Chappell, 30 Ind. 72. 452 CH. XVIII.] OF COUNTER-CLAIMS. § 377 as a set-off, although it is broader than the statutory set-off. In several of the states the term is still preserved, but in most of them the word " set-off" is not used ; but it is included, as above, in the second class of counter-claims. Little more need be done in this connection than to inquire, first, how far the cause of action which is thus authorized to be presented as a counter- claim corresponds to that which could formerly be set off; and, second, in what it differs. The old statutes in regard to this subject did not all agree in words, but under them it was gener- ally held, as stated by Mr. Parsous, that " a demand founded on a judgment may be set off, or upon a contract, if it could be sued in indebitatus assumpsit, debt, or covenant. But if it arise ex delicto, and can be sued only in trespass, replevin, or case, it is not, in general, capable of set-off; nor is it if recoverable only by bill in equity." ^ The matter to be set-off must have been a debt, as the term is understood, and it could only be offered when the defendant was sued upon a debt ; the two parties must have owed each other debts, as distinguished from being charge- able with a liability for unliquidated damages.^ " No demand can be pleaded in set-off unless it be reasonably certain. But this is meant to exclude only those cases in which a jury must deter- mine the amount of damages by their own estimate or opinion, and not those in which they can ascertain the amount by mere calculation, if they find the claim valid. In general, demands may be set off which are for liquidated damages, meaning thereby when their amount is specific, or is directly and specific- ally ascertainable by calculation ; and, also, all those which usu- ally may be sued for and recovered under the common counts." ^ Assumino- this to be a correct description of the statutory set-off, as generally allowed in England, and in the United States where not changed by the Code, the agreement, in its leadiug features, between it and the second branch of the counter-claim is obvi- ous. In both, the demands of each party must arise upon con- tract.* They must also exist between the same parties in the 1 2 Pars, on Oon. 734, 735. ' 1 Ohitty'a PI. 570, 571. 5 2 Pars, on Con. 739, and the cases cited in note e. * This is almost universally true. In Iowa, however, the statutory provision is 453 § 378 OF PLEADINGS. [PAET II. same rigM, and in case suit is brought by the assignee of an ordinary contract, the defendant is permitted to set off any de- mand held against the assignor before notice of the assignment, but not such as may be acquired or may accrue after such no- tice. So, in an action by an executor or administrator, no de- mands can be set off which were not held by the defendant at the death of decedent. These and many other doctrines per- taining to set-off are universally recognized, and are unaffected by the Code. But, as will be shown by the next few sections, the second subdivision of counter-claims not only includes the set-off as heretofore known, but cross-demands of the same nat- ure not covered by that term. § 378. Continued — Must the Demands be liquidated? — "We have seen that a set-off is included in the Code of New York, in the second subdivision of counter-claims, without the use of the term, and that this mode is followed in most of the states adopting the system. We have also seen that in Ohio, and in certain other states, the term " set-off" is preserved, and that it is distinguished from counter-claims.' By the Codes of those states which have adopted the language of that of New York the defendant is expressly authorized, " in an action arising on con- tract," to counter-claim " any other cause of action arising also on contract, and existing at the commencement of the action." It will be seen that this lanffuasre differs from that which had been used in the statutes concerning set-off, being broader and more compi'ehensive. The latter provided for setting off mutual indebtedness, and a debt proper was not a liability for uncertain damages, while the former provides for setting off any cause of action arising on contract. There may be a reason, in Ohio and in those states where the term " set-off" is preserved, for preserv- ing its old meaning, but this reason fails in New York and the states in whose Codes the word is carefully avoided, and where much broader, and authorizes the defendant to counter-claim any cause of action he may have held against the plaintiff. See, ante, § 369, note, and Campbell o. Pox, 11 Iowa, 318, where, under a similar statute, it was held that a cause of action for a tort — as, for slander — could be set-off to a cause of action founded upon contract. ' Ante, \ 369, and notes. 454 CH. XVIII. J OF COUNTEE-CLAIMS. § 379 more comprehensive language is used. It would seem to be an in- terpolation to add to the express authority to counter-claim " any other cause of action arising also on contract" the proviso that the action or the counter-claim shall be for the recovery or counter-recovery of liquidated damages. § 379. Continued — The Decisions. — The rulings upon this subject have not been uniform, yet the preponderance is in favor of the view taken in the last section. In an opinion given in the Supreme Court of California, whose Code, in this respect, adopts the language of that of New York, I find the assertion that " it is too clear for argument that an unliquidated claim for damages is not the subject for offset either legal or equitable." ^ The Supreme Court of New York takes a different view. Thus, in an action by a veterinary surgeon for professional services, the defendant was allowed to counter-claim damages suffered from a breach of a contract of guaranty as to the quality of a team which he had purchased upon the plaintiff's representation.^ So, in an action for the price of mill machinery, and for work and labor, the defendant was permitted to set up damages which had accrued from the breach, by revocation, of an arbitration bond.^ Also, in an action for unliquidated damages, the defendant was allowed to embrace in his answer a demand for damages arising from the breach of an independent contract.* In the Court of Appeals a counter-claim under the second subdivision, asking for unliqui- ' Eicketson v. Eichardson, 19 Cal. 330. 2 Williams v. Wieting, 3 N. T. Sup. Ct. 439. ' Curtis ». Barnes, 30 Barb. 225. The arbitration -was to be concerning the machinery which was the subject of the action, and there might have been such a connection as to authorize the counter-claim under the first subdivision, but the court placed it under the second, and authorized it because both demands were founded upon contract. Schubart v. Harteau, 34 Barb. 447, is a similar case. The action was upon a promissory note, and the defendant answered that the note was given to the plaintiff's assignor on a settlement of an account for stone, and set up, first, a guaranty against loss in the purchase of the stone ; and, second, deceit in regard to the quality of the stone. The counter-claim should have been allowed, as embodying a demand connected with the subject of the action, but the court placed it under the second sub- division, saying that " a counter-claim, under the Code, may be for liquidated or un- liquidated damages, if they arise upon contract." See, also, a dictum in the Xenia Branch Bank v. Lee, 7 Abb. Pr. 389. * Lignot V. Bedding, 4 B. D. Smith, 285. 455 § 380 OF PLEADINGS. [PART II. dated damages, has been approved.^ In Missouri, in an action for freight, etc., the defendant was allowed to claim damages suffered from the negligence of the plaintiff in the transportation of goods. It does not appear whether the negligence charged arose in the transportation for which the plaintiff sought to recover ; but probably not, as the counter-claim was sustained under the second subdivision.^ The Supreme Court of Minnesota is very emphatic in holding that the second class of counter-claims covers all causes of action arising on contract, whether the damages are liquidated or not.' § 380. Continued. — In Ohio, Indiana, Kentucky, Arkansas, Kansas, and Nebraska a set-off is provided for in terms, in addi- tion to the counter-claim, which embraces only the first subdi- vision of counter-claims as provided for in New York, etc. In Indiana* and in Florida^ it is expressly provided that the set-off must consist of matter arising out of a debt, duty, or con- tract, "liquidated or not," thus, for those states, settling the 1 Parsons v. Sutton, 66 N. T. 92. ^ Empire Transp. Co. v. Boggiano, 52 Mo. 294. Adams, J., says : " The statute contemplated that where a suit is founded on a cause of action connected in any manner with a contract, a counter-claim arising out of any other contract between the same parties may be set up. The old doctrine of set-offs has no analogy to counter-claims of this nature, under our statute. Under the old system, set-offs sounding in damages for breaches of contract were not allowed ; but this objection cannot be maintained in regard to counter-claims under the present code of practice. It is sufficient if the defendant's right to the damages relied on as a counter-claim grows out of a contract between him and the plaintiff." This is contrary to what had been held in Johnson v. Jones, 16 Mo. 494, and to the view since taken by the St. Louis Court of Appeals in G-reen v. Willard Improved Barrel Co., 1 Mo. App. 202. " Morrison v. Lovejoy, 6 Minn. 319, opinion on page 352. The word "obligation" is used in the statute, instead of " contract," but it is held to comprehend "all causes of action arising ex contractu, as distinguished from causes of action arising ex delicto." Opinion by Emmet, C. J. In the same volume, page 423, Eolsom v. Carli, is an opinion by Flandreau, J., in which there are dicta not in accord with Morrison v. Lovejoy. The judge, quoting the statute, says that "it is merely an enunciation of the law of set-off, and does not enlarge it in any respect." The court might well have said that it did not so enlarge the law of set-off as to cover the case before the court, which was a trespass ; and that is, doubtless, all that was meant. See, in same state, Bidwell v. Madison, 10 Minn. 13, where, in an action on a promissory note, damages arising from neglect in protesting another note were allowed to the defendant. * Code Civ. Proc, I 57. 5 See Robinson v. L'Engle, 13 Ela. 482. 456 CH. XVIII.] OF COUNTER-CLAIMS. § 381 question under consideration. In the other states named there is no express provision on the subject, and, as before inti- mated, there may be a reason for adopting the old view which does not apply elsewhere. The Supreme Court of Nebraska has expressly ruled that unliquidated damages cannot be set off.^ In the Superior Court of Cincinnati the question was raised, and the court took the same view, Spencer, J., saying : " The word ' set-off' in legislation has been in long and constant use, and has acquired as precise and fixed a meaning as any other legal term in vogue. And that is one which limits its application to cases of liquidated demands." ^ The Supreme Court of Kentucky holds that the meaning of the tei'm " set-off" is not changed by the Code, and that in that state, as before its adoption, unliquidated demands cannot be the subject of set-off.* In Kansas, on the other hand, whose Code in this respect is the same as that of Ohio, it is distinctly held that, in an action founded upon con- tract, the defendant may set off any demand arising also on con- tract, whether the damages be liquidated or not.* § 381. Continued — As to waiving a Tort. — Wherever the wrong which has been suffered, and which arises from an injury or tort, may be redressed in an action as upon contract, it is held in Kentucky that the same privilege will be given in making a counter-demand. Thus, in an action upon a promissory note, the defendant is allowed to set off the value of property tortiously taken, upon the principle that the tort may be waived and an im- 1 Boyer v. Clark, 3 Neb. 161. 2 Evens v. Hall, 1 Handy, 434. It should be remarked that Judge Swan, in an early treatise upon code pleading in Ohio, expresses the opinion that the damages need not be liquidated. ' Shropshire v. Conrad, 2 Meto. (Ky.) 143. The reasoning is that the old term " set-off" was used in the Code, whose meaning had been established and was well un- derstood. "If," says the court, "a radical change in the subject of set-off was in- tended to be made by the Code, the reasonable presumption is that such an intention would have been clearly indicated. Every cause of action arising upon contract would have been declared to be a good set-off, and then no doubt could have existed as to the meaning of the section under consideration." This reasonmg recognizes the correct- ness of the view taken in the preceding two sections, as to those states where the de- fendant is authorized to counter-claim any cause of action arising on contract. * Stevens v Able, 15 Kan. 684 ; affirmed in Bead v. Jeffries, 16 Kan. 534. 457 § 382 OF PLEADINGS. [PAET 11. plied contract may be relied on.^ In New York a different view is taken, and in an action upon a bond, or upon a note, the de- ■ fendant was not permitted to counter-claim the conversion of personal property having no connection with the subject-matter of the bond, both because he had pleaded it as a tort, and be- cause it was in fact a tort, and could not be treated as a contract.^ And when the complaint sets out facts which constitute a cause of action for the conversion of property, the defendant will not be permitted to counter-claim an unconnected demand sounding in contract.' In Wisconsin, in an action upon a book account, the defendant was permitted to set up an indebtedness for pas- turing the plaintiff's cattle. The evidence showed that the plaintiff was a trespasser ; that he wrongfully let down the de- fendant's fence, and turned in his cattle upon defendant's land; and the right to treat it as matter of contract had been denied, but was sustained by the court.* In Missouri the defendant in an action upon contract has been permitted to recover the value of personal property wrongfully converted, treating it as a sale, which the plaintiff should not be permitted to contradict by show- ing that he was a wrong-doer.* § 382. Continued — Some Rulings not classified. — In an action to foreclose a mortgage, and for a judgment on the bond ' Eversole v. Moore, 3 Bush, 49 ; affirmed in Haddix v. "Wilson, 3 Bush, 527. 2 City of New York v. The Parker Vein Steamship Co., 12 Abb. Pr. 300; Piser V. Stearns, 1 Hilt. 86. ' Chambers v. Lewis, 11 Abb. Pr. 210. Speaking of waiving the tort, the court, ;oer Hilton, J., says: "The waiver would not alter the facts which constituted the foundation of the action ; " and, after referring to the old right of the plaintiff to bring assumpsit, which would allow a set-off, further says : " I agree with Judge Brady that, under our present system, no such rule of practice or of law exists ;- and that the char- acter of the proceeding, whether the tort is intended to be waived or not, must now, in all cases, be determined by the facts set out in the complaint as constituting the cause of action." It does not clearly appear whether, if a cause of action, or of coun- ter-claim, arising from a tort should be described as arising upon contract, the party could recover. If so, it would not be because the facts warrant the pleading, but be- cause the opposite party should not be permitted to set up, as a defense, his own wrongful act. * Norden «. Jones, 33 Wis. 600. Nothing is said in regard to the form of the plead- ing. ' Gordon v. Bruner, 49 Mo. 570. 458 CH. XVIII.] OF COUNTER-CLAIMS. § 382 secured, the defendant may counter-claim any demand arising from contract, the same as though the action were for money alone. ^ A stockholder in a building company, who is sued upon his personal liability, may set up a claim for advances made or liabilities incurred on behalf of the company.^ An assignee for the benefit of creditors is not a bona-fide purchaser for value, and the court will compel a set-off on behalf of debtors whose obligations have been assigned, even if the debt is not due at the time of the assignment.' So when the demands of an in- solvent corporation are in the hands of a receiver.* In those states where joint obligations are several as well, one of several defendants should be permitted to counter-claim a demand held by him alone ; or if a sole defendant holds a demand against the plaintiff and others, he should also be permitted to set it up in his answer.* It is not necessary that the title of the de- fendant in the contract to be set-off should be absolute. The same rule should prevail that governs the right of a plaintiff to bring an action. It should be sufficient that the defendant has a right to recover the money upon his set-off, and that the plaintiff will be protected from any other demand.' Thus, it is held in Kentucky that a defendant may set-off a demand assigned to him merely for the purposes of a set-off, and when he is to account to the assignor for only the amount which he realizes by such set-off.^ The plaintiff may meet a set-off by a reply showing a set-off to the set-off, or any new matter which shows that the ' Hunt V. Chapman, 51 N. T. 555 ; Allen v. Maddox, 40 Iowa, 124. 2 Kemington v. King, 11 Abb. Pr. 278. s Schieffelin v. Hawkins, 1 Daly, 289. *■ Berry v. Brett, 6 Bosw. 627. See, also, Finnell v. Nesbitt, 16 B. Mon. 354. 5 The first is held in Missouri, in Kent v. Kogers, 24 Mo. 306, and in Mortland o. Holton, 44 Mo. 58 ; and the second in Kentucky, in Harrison v. Slone, 4 Bush, 577, and in Iowa in Allen v. Maddox, 40 Iowa, 124. See, ante, § 93. The New York Code of Civil Procedure of 1876, ^ 501, provides for a counter-claim in favor of one or more de- fendants. In those states where no change has been made or recognized in the com- mon-law doctrine of joint obligations and its incidents, such set-off would not be allowed. See Griffin v. Cox, 30 Ind. 242 ; Peabody v. Bloomer, 3 Abb. Pr. 353 ; Pinck- ney v. Keyler, 4 E. D. Smith, 469 ; King v. Wise, 43 Cal. 628 ; Howard v. Shores, 20 Cal. 281. ' See, ante, I 51. ' Otwell V. Cook, 9 B. Mon. 357 ; Graham v. Tilford, 1 Mete. (Ky.) 112 ; Dorsey r. Beese, 14 B. Mon. 157. 459 § 383 or PLEADINGS. [part II. defendant should not be allowed to make it.^ In an action for divorce for adultery it has been held in New York that the de- fendant, by a" counter-claim under the second subdivisou, may recriminate adultery in the plaintiff. '^ But it would seem that the counter-claim would more properly come under the first subdi- vision, being of matter " connected with the subject of the ac- tion," to wit, the marriage relation, which is & status, although the result of a contract. § 383. Equitable Counter-claims. — In all the Code states, whether the distinction between the forms of action at law and suits in equity is abolished or preserved, the defendant is per- mitted to set up as many defenses of new mutter, or as many counter-claims, as he may have, whether legal or equitable. It was impossible, under the old procedure in a legal action, to set up any equitable matter, whether of defense or counter-de- mand, but the defendant was driven to his bill in chancery. The rights of parties are not affected by the new procedure — only the mode of enforcing them ; consequently, any right which a de- fendant could formerly have enforced against a plaintiff by a pro- ceeding in equity may now be prosecuted as a counter-demand.' It should be noted that the subject-matter of the equitable counter-claim does not depend upon the statute. Long before it was thus authorized, the chancellor exercised jurisdiction in set- off in case of mutual indebtedness, and this jurisdiction was not suspended by the statute. It still exists in cases not covered by the statute, and the reports are full of illustrations of its exer- cise, to a few of which I will refer. The general principles gov- erning an equitable set-off are discussed in a Kentucky case,* and the court says: "In the case of Tribble v. Saul, 7 Mon. 455, and in numerous subsequent cases, this court has recognized the following as the only grounds of equitable set-off : ( 1 ) That the demands are connected — as, that one is the consideration of the ' Williams v. Jones, 1 Bush, 628 ; Keilly v. Eucker, 16 Ind. 303 ; Curran v. Curran, 40 Ind. 478 ; Mortland v. Holton, 44 Mo. 58. ■' Leslie v. Leslie, 11 Abb. Pr. (»-. s.) 311. * As to set-ofTs in equity, see Story's Eq. Jur., §§ 1430-1444. » Graham v. Tilford, 1 Mete. (Ky.) 112. 460 CU. XVIII.] OF COUNTER-CLAIMS. § 383 other ; ^ or ( 2 ) that there has been an agreement to set them off ; or (3) that they have been completely liquidated at law ; or (4) that there is some obstacle to the legal coercion of the demand sought to be set-off — as, non-residence, insolvency, or the like." ^ In an action by an indorser of a bill of exchange, who had paid the same, against the acceptor, the defendant's answer that he and the plaintiff were but sureties of the drawer, the indorsement and acceptance being for his accommodation, and that the plaint- iff was owing the drawer, who had died insolvent, more than the amount of the bill, was held to embody a valid equitable set- off.' A creditor of the mortgageor of personal property, who has seized it in execution, may sustain an action for redemption or other equitable relief; and, consequently, in replevin by the mort- gagee against the officer, he may ask to be made a party defend- ant, and by counter-claim may enforce his rights.* In a suit by the mortgagee of land to foreclose a mortgage given for the pur- chase-money, it is held that the mortgageor may counter-claim 1 The Codes provide for this class of demands as part of those embraced in the first subdivision of counter-claims. ' In this case the plaintiff below was the assignee of the account sued on against Graham, the assignment having been made by an insolvent. Graham, the day before notice of the assignment, had become the assignee of a demand against the insolvent, not yet due, which he sought to set-off against the account in suit. This he was not permitted to do, because the equity of set-ofi" only existed in consequence of the in- solvency ; that Graham's equity as assignee did not exist until the maturity of the de- mand, which was three months after notice of the assignment to the plaintifl' of the account sued on, although, as against the insolvent, it would have been available. The courts of Kentucky sometimes call that a set-off which would seem to come under the Kentucky definition of a counter-claim. As, in an action on a promissory note, a de- mand for damages for breach of the warranty of the quality of the chattels for which the note was given is called a set-off, and when the action is by the assignee of Jhe note, and the payee is insolvent, or a non-resident, it is allowed as an equitable set-off. Taylor v. Stowell, 4 Mete. (Ky.) 175. In such case unliquidated damages are allowed, though not in a legal set-off. See § 380. It would seem that an action for breach of a warranty of the quality of the goods for which the note in suit was given is certainly ■connected with the subject of the action, and, if there is equitable ground for the re- lief, it is an equitable counter-claim. See Bullitt's Code, J 96. " Bowman v. Wright, 7 Bush, 375. ' Morgan v. Spangler, 20 Ohio St. 38. Held, in this case, that after the issues on the replevin suit had been determined by verdict and judgment, the court would re- tain the cause for further adjudication so far as regards the counter-claim of the creditor. 461 § 384 OF PLEADINGS. [PABT II. damages for fraud practiced in its sale.^ In a case in Missouri,^ upon a motion for judgment on an award, the defendant was allowed to present a counter-claim founded upon promissorj' notes not embraced in the award, and to set them off against the award, upon the ground of the insolvency of the plaintiff, and that they could not be otherwise collected ; and, in another case,^ an answer that the note in suit really belonged to a third person, who was indebted to the defendant, that this person was insolv- ent, and had transferred his demand to the plaintiff to defraud the defendant and prevent him from setting off the indebtedness against the note, was recognized as presenting a good, equitable counter-claim. In a direct action, analogous to an old suit in equity, by the holder of a promissory note, without having re- duced it to judgment, against the maker and his assignee, to ob- tain a set-off of certain demands claimed to belong to the maker, but in the hands of the assignee, the court, in the absence of fraud or insolvency in the maker, refused to entertain the action, holding that the relief should not be granted, when the demands are disconnected, " unless there are some special circumstances — ' such as insolvency or non-residence of the defendants, or other extraneous facts — to form the basis of equity jurisdiction." * § 384. Continued. — The Supreme Court of California, before the adoption of the Code, recognized the doctrine of the equita- ble set-off, holding, however, that " the mere existence of cross- demands will not justify a set-off in a court of chancery; there must be some peculiar circumstances, based upon equitable grounds, to warrant the court in interfering." ^ In an equitable action to enforce a vendor's lien, the defendant is allowed, under the Code, to counter-claim the value of a crop wrongfully sold by the plaintiff, as connected with the subject of the action, and the same as though the action had been a legal one for the recov- 1 Allen V. Shackelton, 15 Ohio St. 145. 2 Field V. Oliver, 43 Mo. 200. " Wright V. Salisbury, 46 Mo. 26. ' Keightley v. Walls, 24 Ind. 205, and cases cited. ' Naglee v. Palmer, 7 Cal. 543. 462 CH. XVIII.] OF COUNTER-CLAIMS. § 385 ery of the price of the hmd.^ To authorize an equitable set-off of a debt due from the plaintiff and another, the answer should show that they are insolvent, and that the defendant is in danger of losing his demand.^ A trustee, collecting a judgment in his own name, but on behalf of an insolvent beneficiary, will be compelled to allow a set-off of a demand held by the defendant against such beneficiary.^ In order to furnish him a ground of defense, a defendant may, by counter-claim, ask for a reforma- tion of the contract in suit,* and in ejectment he may ask for the specific performance of the contract under which he holds pos- session.^ In an action upon a promissory note, the New York Court of Appeals permitted the defendant to set-off a balance due him as partner of the plaintiff, although there had been no settlement, and to ask for an adjustment of the partnership busi- ness in order to ascertain what the balance would be.^ The con- trary is held in Missouri, unless the answer shows insolvency or some other ground for equitable relief.'^ In Ohio, in an action on a joint debt against principal and surety, a demand due from the plaintiff to the principal alone was allowed to be set-off upon equitable grounds.^ § 385. Some so-called equitable Counter-claims are really Defenses. — Answers are very common setting up a counter- demand against the assignor of the plaintiff, sometimes as charg- ' Walker v. Sedgwick, 8 Cal. 398. 2 Howard v. Shores, 20 Cal. 277. ' Hobbs V. Duff, 23 Cal. 596. " A person who holds a claim as a trustee cannot have it set off against a demand due from him in his own right. Pair o. Mclver, 16 East, 130. And, upon the same principle, we think it clear that a set-off should be made in equity as between the real parties in interest, even though one of the judg- ments is in the name of a trustee who holds for the use and benefit of such real par- ties. "Wolf u. Beales, 6 Serg. & R. 242; Barb, on Set-off, 61, 71-73. In other words, the court will decree a set-off as between the real owners, or persons beneficially in- terested in the several demands." * Wemple v. Stewart, 22 Barb. 154. 5 Dewey v. Hoag, 15 Barb. 365. As to the necessity of a counter-claim in certain equitable defenses, see, ante, J| 348-357. 6 Waddell v. Darling, 51 N. Y. 327, affirming G-age v. Angell, 8 How. Pr. 335, and overruling Ives v. Miller, 19 Barb. 197. ' Leabo v. Eenshaw, 61 Mo. 292. 8 Wagner v. Stocking, 22 Ohio St. 297. 463 § 386 OF PLEADINGS. [ PART II. ing that the assignor is the real owner of the thing in action, and that it has been fraudulently assigned to the plaintiff, and sometimes that the plaintiff became the assignee under cir- cumstances that left the claim subject to the counter-demands of the defendant — as, a debt due him before notice of the as- signment, where the claim assigned was not negotiable at com- mon law. In «uch cases the riojhts of the defendant are called equities, and an answer setting out his demand against the as- signor is frequently called a counter-claim. But this is not strictly accurate. A counter-claim must be a demand in favor of the defendant and against the plaintiff, upon wliich a judg- ment could be rendered. It must be a demand which could be put in suit by the defendant against the plaintiff if the latter had not brought his action. This class of cross-demands are really defensive. They but prevent the plaintiff's recovery because some one else, whose liability affects the plaintiff, is owing the defendant. If the latter claim be the largest, no affirmative judgment can be rendered upon it. It is, in effect, but a de- fense, though a counter-claim in form.^ The defendant in such case may be afforded full relief without a new action, in those states that provide for new parties to a counter-claim, or for a cross-action with new parties. Another instance of the allow- ance of defensive matter as a set-off is found in Indiana. A step-father entered into possession of a farm belonging to his step-children, and brought them up upon the farm, paid the taxes, etc., his only compensation being the use of the farm. In an action by the children for use and occupation, he was allowed to set-off the necessaries furnished and taxes paid to the extent of their demand, but no more, although the amount was much greater.^ § 386. A judicial Limitation upon Counter-claims made in ' Ferreira v. Depew, 4 Abb. Pr. 131 ; Duncan v. Stanton, 30 Barb. 588 ; Weeks v. Pryor, 27 Barb. 79; Davidson v. Eemington, 12 How. Pr. 310; "Wolf i-. H— , 18 How. Pr. 84 ; Spencer v. Babcock, 22 Barb. 326. The New Tork Code of Civil Procedure of 1876 2 503, regulates the character of the judgment as between the plaintiff and de- fendant, and guards the defendant's right to recover against others the excess not allowed as a counter-claim. ' Grossman v. Lauber, 29 Ind. 618. 464 CH. XVIII.] or COUNTER-CLAIMS. § 386 New York. — The right to prosecute a counter-claim in the cases named in the statute is general; but, in consequence of* a sup- posed difficulty in rendering a separate judgment in favor of a defendant in cases where the plaintiff is entitled to the relief which he seeks, notwithstanding the defendant's claim may be a good one, or, perhaps, for other reasons, the courts of New York have imposed a qualification upon the right, to wit, th^at no counter-claim should be allowed which did not, iji some way, qualify, diminish, or defeat the recovery to which the plaintiff would be otherwise entitled. So far as New York is concerned, the propriety of this ruling is not open to inquiry, inasmuch as this qualification has been incorporated in the new Code of that state, which provides that the counter-claim " must tend, in some way, to diminish or defeat the plaintiff's recovery." ^ But, inasmuch as no statutory change has been made elsewhere, it is important to inquire whether this qualification is legitimate when not express ; whether it should be understood as necessary to the due administration of justice. A case involving the question arose in the Court of Appeals in 1860,^ and, without stating the facts, an extract from the opinion will sufficiently indicate the position taken by the court. The action was for foreclosure, and Comstock, J., says : "According to the answer, no cause of action existed against him (the defendant who had set up the counter-claim). The complaint claimed nothing against him per- sonally, and stated no facts as the foundation of such a decree. The answer showed that he had no title or interest in the mort- gaged premises to be affected by the decree. His defense, there- fore, must be deemed to have been put in for the mere purpose of establishing a legal cause for an independent suit on the plaintiff's covenants, without any demand against himself being at all involved in the controversy. Without undertaking, at this time, to expound the provisions of the Code which relate to counter-claims, I am satisfied they do not apply to such a case as this. Of course, the claim could only be enforced in this case by a judgment in the appellant's favor for the damages sustained in consequence of the eviction. But the plaintiffs might, notwith- 1 Code Civ. Proo. N. Y. 1876, § 501. 2 National Fire Ins. Co. u. McKay, 21 N. T. 191. 465 30 § 387 OF PLEADINGS. [PAET II. standing such a judgment, be entitled to the decree for fore- closure and sale which they have obtained. The alleged counter- claim does not impair or affect the right to that relief. I apprehend that a counter-claim, when established, must in some way qualify, or must defeat, the judgment to which the plaintiff is otherwise entitled. In a foreclosure suit, a defendant who is personally liable for the debt, or whose land is bound by the lien, may, probably, introduce an offset to reduce or extinguish the claim. But where his personal liability is not in question, and where he disclaims all interest in the mortgaged premises, I do not see how he can demand a judgment against the plaintiff on a note, or bond, or a covenant." In a more recent case,' while sustaining as a counter-claim an unsettled partnership account between the parties, the partnership having been dis- solved before the commencement of the action, Commissioner Earl, in delivering the opinion, remarks "that every cause of action existing in favor of the defendant against the plaintiff, arising upon contract, cannot be the subject of a counter-claim. It must be a cause of action upon which something is due the defendant which can be applied in diminution of the plaintiff's claim. For instance, a cause of action for the specific perform- ance of a contract in reference to real estate arises upon contract, and yet cannot be set up as a counter-claim unless it grew out of, or be connected with, the cause of action alleged in the com- plaint." In National Insurance Company v. McKay, the defend- ant was under no liability, no recovery was sought against him, and he had no interest in the property. The complaint, then, should have been dismissed as to him. It might have been well said that he had no such standing in court as to authorize an action on his part, without announcing the general principle ; but the case of Waddell v. Darling, and those hereafter cited, go farther. § 387. Continued — Other Cases. — The New Yor!? Supreme Court, at general term, went still further than the Court of Ap- peals, and held that, in a complaint for foreclosure, the owner of the equity of redemption, who was not personally responsible 1 Waddell v. Darling, 51 N. Y. 327. 466- CH. XVIII.J OF COUNTER-CLAIMS. § 388 for the debt, could not set off an independent demand against the phiiatiff, although arising on contract.^ The opinion was chiefly based upon the assumption that the claims must be recip- rocal,- and had the defendant brought an action against the plaintiff upon such independent demand, the plaintiff could not have counter-claimed the mortgage debt, inasmuch as there was no personal liability. The remark of Comstock, J., quoted in the last section, that, "in a foreclosure suit, a defendant who is personally liable for the debt, or whose land is bound by the lien, may probably introduce an effort to reduce or extinguish the claim," is treated as an expression so limited as not to be re- garded as authority. The general doctrine is further illustrated by an opinion delivered in the same court, in which it is held that the counter-claim must " contain not only the substance of what is necessary to sustain an action in favor of the defendant against the plaintiff, but it must also operate in some way to de- feat, in whole or in part, the plaintiff's right of recovery in the action. An answer which does not meet this requirement is in- sufficient, whether regarded as a defense or a counter-claim. If a person be sued on a promissory note he cannot set up, by way of defense or counter-claim, a contract with the plaintiff for the purchase of lands, and allege payment of the purchase-price, and claim a decree in the action for specific performance ; nor could he, in such action on promissory note, have a foreclosure of a mortgage against the plaintiff, especially if he were not per- sonally liable for the mortgage debt." * § 388. The View elsewhere. — It is thus seen that the limita- tion referred to upon the right of making counter-claims had been firmly established in New York when it was incorporated in the new Code. But there are few reported cases elsewhere involving the question. I find in an opinion adopted by the Supreme Court of Oregon an indorsement of the view taken in Mattoon v. Baker, but the counter-claim in that case was held to be bad because it was inconsistent with the defense, and was 1 Agate V. Kin^-, 17 Abb. Pr. 159. 2 Citing Xenia Branch Bank v. Lee, 2 Bosw. 694; s. c, 7 Abb. Pr. 372. 3 Mattoon v. Baker, 24 How. Pr. 329. 467 § 389 OP PLEADINGS. [PART II. not mutual, and also because it did not affect the plaintiff's de- mand.^ In a case in Wisconsin'' the question has been directly considered. The action and the counter-claim were both for equitable relief, and the latter did not affect the former. Lyon, J., says : " The term ' counter-claim,' of itself, imports a claim opposed to, or which qualifies, or at least in some degree affects, the plaintiff's cause of action. It has been held in New York that a counter-claim, to be valid, must, to some extent, impair, affect, or qualify the plaintiff ' s right to the relief to which he would otherwise be entitled by his action." After citing the New York cases, he adds : " That the New York courts have held correctly on this subject we entertain no doubt whatever." I find no other case where the question has been directly raised. Some of those cited seem to limit the qualification to the second subdi- vision of counter-claims, of which the largest class embraces what is known as a set-off; so that, if the defendant has a cause of action against the plaintiff, arising out of the contract or transaction upon which the suit is based, or connected with the subject of the action, he may prosecute it by a counter-claim, although it may not affect the plaintiff's demand. But the New York courts have given such a construction to the term " sub- ject of the action " — making it mean little, if any, more than the cause of action, or the facts which constitute it — as greatl}' to curtail the defendant's right of counter-claim under the first subdivision.^ Hence the limitation of the qualification to the second subdivision was never of much practical importance in that state, and since the qualification has been incorporated into the Code of 1876 it has become general, and must apply to aU classes of counter-claims. § 389 . Upon what is the Qualification based ? — The qualifi- ' Dove V. Hayden, 5 Oreg. 500. The question for decision was whether such a counter-claim had been filed as should prevent the plaintiff from taking a voluntary nonsuit. It was rejected upon the grounds named in the text, and upon the fact that the original proceeding was a suit in equity, and the counter-claim embodied a legal demand, and that the demand was not connected with the subject of the action. Upon the latter point the court confounded the subject of the action with the facts constituting the cause of action. ' Dietrich v. Koch, 35 Wis. 618. ' Ante, I 375. 468 CH. XVIII. j OF COUNTER-CLAIMS. ' § 390 cation is by no means arbitrary, yet^it hardly seems warranted by the language of the statute. Its real foundation — although that reason is rather felt than expressed in the opinions — is the incon- venience of, and the absence of any necessity for, conducting two trials at the same time, in which separate and independent judg- ments are to be rendered in respect to each party, one in no way aiFecting the other, and the two actions being almost necessarily different in their nature. Two other reasons are given in some of the cases cited — one, that no counter-claim will be allowed unless the right is reciprocal,^ and the other that the term " counter-claim " imports a claim affecting that of the opposite party .^ While these reasons are abundantly sufficient to procure such a modification of the statute as is made in the new Code of New York, it may, perhaps, be doubted whether they warrant the interpolation of such a modification by the courts. It seems like an attempt to remedy imperfections of legislation by qualifications not necessarily implied. It should be remarked that this ques- tion will not present the same difficulties in those states that separate matter of set-off from counter-claims. The old term is preserved, and its limitation is substantially as before, except that the defendant may set off matters of an equitable nature. It is only where the express authority is given to counter-claim ^^ any other cause of action arising also on contract" that the qualification can have the appearance of a judicial interpolation. But, whether we treat it as such, or as a condition necessarily implied, this construction seems to have been recognized wherever the question has been raised, and it will, probably, be treated in other states as settled upon authority. § 390. Cross-complaints or Petitions. — In the equity prac- tice, if the defendants, or if one of the defendants, desired affirmative relief, either from the plaintiff or from his co-defend- ants, touching the subject-matter of the original bill, it was nec- essary to file a cross-bill, upon which process issued and the re- lief was granted.^ Under the Code, if the defendant seek 1 Agate V. King, 17 Abb. Pr. 159. 2 Dietrick o. Koch, 35 Wis. 618. » Mitford's Eq. PI., 5th Am. ed. [* 81]. 469 § 390 OF PLEADINGS. [PAET II. affii-mative relief from the plaintiff, he obtains it, as we have seen, by means of a counter-claim. But while there is a gen- eral provision authorizing the court to render judgment deter- mining the ultimate rights of the parties on each side, as be- tween themselves, yet in most of the states there is no provision touching the practice where one defendant seeks affirmative re- lief against another. In California,^ in Kentucky,^ in Ohio,^ and in Iowa * express provision is made for a, cross-complaint, or pe- tition, for the purpose of obtaining relief against any of the other parties, and the practice under these several provisions must be similar to that in equity. In some of the states where the cross-complaint is not provided for the courts have held the equity practice as still subsisting. As, in Indiana, I find the fol- lowing : "The statute expressly confers power to determine the rights of the parties on each side of a case, as between themselves, when the justice of the case requires it. Sec. 368. The mode of procedure, however, is not pointed out by the statute, and as the authority given is one previously possessed only by courts of chancery, we suppose the rules of pleading and practice of those courts, modified by the spirit of the Code, must be resorted to. Sec. 802. In those coitrts, when a defendant sought relief against a co-defendant as to matters not apparent upon the face of the original bill, he must file his cross-bill, alleging therein the matters upon which he relied for relief, making defendants thereto of such co-defendants and others as was proper, and process was necessary to bring them in." ^ This view is warranted in Indiana, if not otherwise, by section 802 of the Code of that state, which provides for the continuance of the laws and usages relative to pleadings and practice, not inconsistent with the Code, in aid thereof, or in supply of an omitted case. But this provision must be understood everywhere. No court would deny one's right, or invent an original mode of proceeding for protecting it, be- 1 Code Civ. Proc. Cal. 1874, ? 442. 2 Bullitt's Code Ky., ? 96. 3 Code Civ. Proc. Ohio, § 84. * Code Iowa 1873, ? 2663. 5 Frazer, C. J., in Fletcher v. Holmes, 25 Ind. 465, 466. 470 CH. XVIII.] OF COUNTER-CLAIMS. § 390 cause of an omission in the Code, so long as the common-law or equity practice furnished a remedy. Says an opinion in the Supreme Court of Missouri: "The Code is not sufficiently comprehensive to embrace every varied phase which a case may assume before reaching judicial determination, and, in conse- quence of this, resort must be frequently had to common-law methods of procedure, both in ordinary actions at law as well as in proceedings looking merely to equitable relief. Numerous decisions of this court exemplify this ; " citing the cases. The opinion then goes onto hold that, "when one defendant seeks relief against a co-defendant, he should answer in the nature of a cross-petition, setting out the facts, and asking relief against such co-defendant, and the same time will be given to answer the cross-demand as that made by the original petition."^ 1 Tucker v. St. Louis Life Lis. Co., 63 Mo. 588, per Sherwood, J. The opinion states that it is not the practice in Missouri to issue process on the cross-petition. If the equity practice in this respect was merely formal, the omission would he well enough, hut a defendant is not supposed to he notified of any demand against him except that made in the petition, and if one is made hy a co-defendant, notice of it should not be assumed unless actually given. 471 § 393 OF PLEADINGS. [PAKT U. CHAPTER XIX. Of the Eeply. Section 393. The Statutes. 394. New Assignment. 395. Some general Considerations. 396. The Eeply to Defenses of Fraud, etc., in negotiable Paper. § 393. The Statutes. — The Codes of the different states are not in harmony in regard to the necessity for a reply. In California and Nevada no reply is permitted.^ Kentucky preserves the full array of the common-law cross-pleadings, and we have the reply, rejoinder, rebutter, etc., as of old. ^ In New York,^ Wisconsin,* North Carolina,* South Carolina," Arkansas,^ and Minnesota' no reply is permitted except to a counter-claim or set-off, although, in answers of new matter, the court, on motion, may, except in Wisconsin, Arkansas, and Minnesota, require a reply. In Ohio,' Indiana,^" Missouri," Kansas, ^^ Nebraska,^^ and Oregon'* a reply is required to all new matter set out in the answer, whether in avoidance or by way of counter-claim, while in lowa'^ 1 Code Civ. Proc. Cal. 1874, § 422 ; Comp. Laws Nev. 1873, § 1101. 2 Bullitt's Code Ky., ?§ 98-101. 3 Code Proc. N. T., J 153 ; Code Civ. Proo. N. Y. 1876, JJ 514-516. ' Rev. Stat. Wis., ch. 125, § 16. » Code Civ. Proc. N. C, § 105. « Code Proc. S. C, § 176. ' Dig. Ark. 1874, § 4579. 8 Code Proo Minn., § 87. 9 Code Civ. Proc. Ohio, § 101. 10 Code Civ. Proc. Ind., § 67. " Wag. Stat. Mo. 1017, § 15. 12 Code Civ. Proc. Kan., § 102. 13 Code Civ. Proc. Neb., § 109. 1* Code Civ. Proc. Greg., I 75. 15 Code Iowa 1873, J 2665. 472 CH. XIX. J OF THE REPLY. § 394 a coimtei-claim must be replied to, and also, if the new matter of defense is to be met by new matter of avoidance on the part of the plaintiff, he is required to set it out by a reply. The language of the different statutes, when the object is the same, varies but slightly. The general provision is that, when the answer contains new matter [or new matter constituting a counter- claim], the plaintiff may reply to such new matter, denying gen- erally, or specifically, each allegation controverted by him [or any knowledge or information thereof sufficient to form a belief] , and he may allege, in ordinary and concise language, and without repetition, any new matter, not inconsistent with the complaint or petition, constituting a defense [or answer at law] to such new matter. It is thus seen that, in most of the states, a reply is required to all new matter, while in a few it is required to counter-claims only, unless upon motion the plaintiff shall be ordered to reply to new matter of defense. This order will not be made when the defendant may know with reasonable cer- tainty what the reply would be ; it is not of course, but there are cases in which he may not know how his defense of new matter will be met — as, in a plea of the statute of limitations — and it would be unreasonable to require the defendant, upon the trial, to be prepared to meet all possible responses to such defenses.-^ This emergency is well provided for in Iowa, as above, without motion, while in two or three states no provision is made on the subject. § 394. Ifew Assignment. — In common-law pleadings it was not uncommon for the plaintiff to restate his cause of action, which was called a new assignment. This was not strictly a replication, because it did not either deny or profess to reply to the facts stated in the answer.^ But such was the mode of stat- in o- the cause of action, especially in trespass ; the facts were stated in so general a manner that the defendant might not be advised as to what particular trespass, if there had been more than one, the declaration referred. He might then justify as to one trespass, while it was not the one upon which the plaintiff 1 Hubbell V. Fowler, 1 Abb. Pr. (n. s,) 1. 2 Cbitty's PI. 624. 473 § 394 OF PLEADINGS. [PAET II. intended to base his action. In such case, if the plaintiff joins issue upon the plea of justification, no evidence could be offered except upon this issue, and the trial was had upon a trespass not in the mind of the plaintiff" when the declaration was filed. To avoid this, he was required to reassign — that is, restate — his cause of action in a more particular manner, or show that the action was not for the trespass which was justified, but for another.^ I do not find a reported case in which, in a case of this Idnd, the duty of the plaintifl" is pointed out, and I know no reason why the old practice should not substantially prevail. Greater particularity is required by the Code in stating most causes of action than was formerly necessary, and the occasion will not so frequently arise. But in an action for a trespass, either to the person or to his close, the pleading, if there has been more than one trespass, can hardly distinguish them. The time is immaterial, and the same language would apply to either. For one, the defendant may justify ; for the other, he may claim an accord and satisfaction ; and, perhaps, another alleged tres- pass he may deny altogether. How is he to know of which the plaintiff complains? It would not be right, if he were to justify or plead accord and satisfaction, and go to trial upon an issue made upon such new matter, to permit evidence of a trespass not referred to in the issue ; and some remedy must exist analogous to the old one. If the doubt could be removed by more par- ticularity in the petition, then the plaintiff might get leave to amend so as to show to which wrong he referred. But, in actions for trespasses of the same nature, it might be impossible to distinguish between them without pleading evidence, or with- out negativing an intention to refer to this or that transaction, which would not be good pleading. In such case the remedy could not be by amendment ; neither could it by a reply, as defined by the statute, because the statute expressly provides that the reply shall either be a denial or a statement of new mat- ter constituting a defense or answer at law to the new matter of the answer. A new assignment may confess and evade, but it does not avoid. Might not the statute giving authority to the > 1 Chitty'a PI. 624-627. 474 CH. XIX. J OF THE REPLY. § 395 plaintiff to file a supplemental petition be so interpreted as to authorize a substantial new assignment? The matter to be set out would not be strictly new facts arising since the commence- ment of the suit ; nor does the statute say that the supplemental petition shall be confined to such new facts. Why may it not be extended beyond the old supplemental petition in equity, and pleas puis darrein continuance at law, and be made to meet any emergency not othei-wise provided for, when a new statement becomes necessary? Or, perhaps, courts will treat the matter as a case not provided for by the Code, and allow the old remedy to supply the deficiency.^ § 395. The Reply to Defenses of Fraud, etc., In negotiable Paper. — In an action upon negotiable paper, the defendant may plead fraud or illegality, or that the bill or note was lost or stolen ; and it is well settled that, in showing such fraud, etc., he makes a good prima-facie defense, and that the plaintiff must show affirmatively that he is a bona-fide\io\dev for value.' But, in such case, how should the issue be made on paper? Upon principle, every pleader who, in submitting evidence, holds the affirmative of an issue must affirmatively plead the facts upon, which the issue is made. It is, however, common, in pleading fi-aud, illegality, or other matter going to the validity of a bill or note in the hands of an indorser, to add an averment of want of consideration and notice. Is this averment necessary? Is it sufficient for the plaintiff to traverse it, if made, or should he affirmatively allege the facts he is required to prove ? I do not find these questions settled upon authority. In the analogous case of a bill to enforce an equity against one who has obtained the legal title, whether to land or chattels, it is sufficient for the plaintiff to show the equity ; he thereby makes a prima-facie case against the world. A purchaser for consideration without notice will, however, be protected. In his plea or answer, the pur- chaser of land must aver expressly that the person who conveyed was seized, or pretended to be seized, when he executed the con- 1 See ? 390. ' 2 Greenl. on Ev., ? 172; Byles on Bills, 120; Pars, on Notes & Bills, 188, 189, and notes ; Hamilton v. Marks, 63 Mo. 167. 475 § 396 OF PLEADINGS. [PART II. veyance, and that he was in possession ; must aver consideration, and its actual payment, and must deny notice, whether it is averred or not.^ And the purchaser of stocks, if he would defend against a plaintiff's prima-facie title, must affirmatively set out in his answer, and must prove, the facts showing that he was a hona-fide purchaser for value. ^ In the matter under considera- tion, the plaintiff, after the defendant's showing, can only pro- tect himself by his relation to the paper ; in itself, it is good for nothing ; but, when one has put his name to a negotiable instru- ment, the law-merchant, for commercial reasons, will protect one who has obtained it in good faith and for value. We have seen that he is bound to prove that he has so obtained it, as is the holder of the legal title to property against the holder of an equity. It would certainly seem that he should be required to affirmatively plead the facts that thns protect him, and which he must prove, and that the allegation of notice, etc., in the answer is unnecessary. § 396. Some general Consideratioris. — Where a reply is re- quired, a failure to make it renders it unnecessary to prove the facts which should have been met by reply ; they are said to be admitted for the purposes of the trial. But if the answer sets tip new matter which amounts only to a denial — as, that the act charged was committed by a third person — no reply is necessary,^ and a reply which states facts inconsistent with the answer may be treated as an argumentative denial.* The plaintiff may waive a reply, and if he shall go to trial as though a reply by way of traverse were in, he shall be deemed to have waived it ; * or it will be considered as having been duly filed ; * or the court will, after verdict, allow it to be filed nunc pro tuncJ » Wallace ». "Wilson, 30 Mo. 335 ; Kerr on Fraud, 369-370. « Weaver v. Barden, 49 N. Y. 286. ' Hoffman v. Gordon, 15 Ohio St. 212 ; The State v. Williams, 48 Mo. 210 ; Kiddle V. Parke, 12 Ind. 89; Cooke v. Williamson, 11 Ind. 242; Denny «. Indiana & Illinois Central R. Co., 11 Ind. 292. * Meredith v. Lackey, 14 Ind. 529. " Hopkins v. Cothran, 17 Kan. 173. 8 McAlister v. Howell, 42 Ind. 15. ' Foley V. Alkire, 52 Mo. 317. 476 CH. XX.] REMEDIES FOK DEFECTIVE PLEADING. § 401 CHAPTER XX. Of the Remedies for defective Pleading. Section 401. Object of this Chapter. 402. The Common-law Remedies. 403. Remedies under the Codes. 1. The Demurrer. SECTloif 404. Its Object and Scope under the Code. 405. 1 — First, that the Court has no Jurisdiction over the Person of the Defendant. 406. Second, that the Court has no Jurisdiction over the subject of the Action. 407. 2 — That the Plaintiff' has not legal Capacity to sue. 408. Continued. 409. Continued. 410. 3 — That there is another Action pending between the same Parties for the same Cause. 411. 4 — That there is a Defect of Parties PlaintiflTor Defendant. 412. 5 — That several Causes of Action are improperly united. 413. 6 — That the Complaint (Petition) does not state Pacts sufficient to con- stitute a Cause of Action. 414. Continued. 415. Additional Grounds in certain States. 416. The Demurrer must distinctly specify the Grounds of Objection. 417. Some general Considerations. 418. What does a Demurrer admit? S. Answers. Sbction 419. Defects met by Answer. 3. Motions. Section 420. Most formal Defects met by Motion. 421. Motion to strike out a frivolous Pleading. 422. Sham Pleading. 423. Irrelevant and redundant Matter. 424. Continued — Answers. 425. Uncertainty. 426. In respect to filing the Writing sued on. 427. Misnomer. 477 § 402 OF PLEADINGS. [PAET II. 4. Amendments. Sbotion 428. Amendments discretionary. 429. Limitations upon the power of Amendment. 430. Continued — As to Defenses. 431. Continued — As to unconscionable Defenses. § 401. Object of this Chapter. — Having hitherto considerecl certain rules of pleading with regard to the statement of facts constituting the cause of action ; having shown what facts need not be stated, what facts must be stated in addition to the main charge, and the manner of stating the facts ; havinff also seen that these rules are rules of statement, and that, when from their nature they are applicable, they apply as well to statements of new matter in the answer or in the reply, it becomes important to know how we should meet the violation of these rules — that is, what steps should be taken to compel their observance, or to enforce the penalties that should follow their non-observance. There are, also, other statutory requirements, not covered by the rules of statement, that cannot be transgressed with impunity, and the object of this chapter will be to consider the remedies for the violation of the rules of statement, and for other errors in pleading. § 402. The Cominon-law Remedies. — At common law, defects in pleading, when the defects appeared upon its face, were most frequently met by a demurrer which was pn objection to the legal sufficiency of the pleading demurred to. All demurrers were at first general — that is, they did not specifically j)oint out the de- fects in the pleading — until the statute of 27 Elizabeth, chapter 4, which required the courts to give judgment according to the right of the cause, without regarding any defect or want of form except those which the party demurring had specially set down and expressed.^ Thereafter demurrers became general and special — the former going to defects of substance, the latter to those of form. Pleas in abatement — under which I include pleas to the jurisdiction and to the disability — were also resorted to, which set up facts which suspended the plaintifi^'s right of ac- 1 1 Chitty's PI. 663. 478 CH. XX. j REMEDIES FOE DEFECTIVE PLEADING. § 404 tion until some disability specified should be removed, or which showed defects iu the present proceeding — as, misnomer, etc. Sometimes, though rarely for this purpose, motions were re- sorted to. In equity practice demurrers were also a common remedy for defects and deficiencies in pleading, and the defendant was allowed, in a proper case, to resort to dilatory pleas, and sometimes defects were met by answer.^ § 403. Remedies under the Code, — The remedies provided by the Code for defects in pleading are demurrers, answers, and motions, which will be considered in their order, to which will be added some considerations in regard to amendments, I. — Tlie Demurrer. § 404. Its Object and Scope under the Code, — The object of a demurrer under the Code is the same as at common law, although its scope has been changed. It still goes to the legal effect of the pleading demurred to ; for some defect or deficiency •apparent upon its face, it denies the legal proposition involved in such pleading,^ and thus makes an issue of law. But the defects and deficiencies for which a demurrer will lie are expressly named in the statute, and no others can be reached by this pleading. Many of the defects in form which could formerly have been brouo-ht to the notice of the court by special demurrer are not among those thus named, although defects of substance are in- cluded. Those originally enumerated in the New York statute are as follows: "1. That the court has no jurisdiction of the person of the defendant or the subject of the action. 2. That the plaintiif has not legal capacity to sue. 3. That there is another action pending between the same pai-ties for the same cause. 4. That there is a defect of parties plaintiff or defend- ant. 5. That several causes of action are improperly united. 6. That the complaint does not state facts sufficient to consti- tute a cause of action."* These grounds of demurrer have I Story's Eq. PL, ? 436. » Ante, II 136, 137. 8 Code Proc. N. Y., I 144. 479 § 404 OF PLEADINGS. [PART II. been literally adopted in Ohio, in Indiana, in Wisconsin, in Kan- sas, in Nebraska, in North Carolina, in South Carolina, in Flor- ida, in Minnesota, and in Arkansas.^ The California Code adds a seventh ground of demurrer — " that the complaint is ambigu- ous, unintelligible, or uncertain " — and also authorizes a demur- rer for " misjoinder," as well as defect of parties,^ which is fol- lowed by that of Nevada^ and of Colorado.* In Missouri' a seventh ground of demurrer is added to those enumerated in the New York Code, to wit : " That a party plaintiff or defendant is not a necessary party to a complete determination of the ac- tion ;" and in the third ground the words "in this state" are inserted after the words " action pending." The Kentucky Code adopts substantially the provisions of that of New York, although dividing demurrers into general and special.^ The Iowa Code omits wholly the fifth ground, and adds, as a sixth: " That the petition shows that the claim is barred by the statute of limitations, or fails to show it to be in writing, when it should be so evidenced ; or, if founded on an account or writing as evi- dence of indebtedness, and neither of such writings, account, or copy thereof, is incorporated into or attached to such pleading, or a sufficient reason stated for not doing so." The Iowa stat- ute also makes the petition demurrable if the " facts stated in the petition do not entitle the plaintiff to the relief demanded," which is given as the fifth ground^ — thus extending the opera- tion of a demurrer for defect of facts. The pleading is demur- rable not only if it does not contain facts that constitute a cause of action, but also for a mistake in the relief which is asked. In all the Code states, including Iowa, the court, except on de- fault, will give the plaintiff any relief consistent wij;h the case > Code Civ. Proo. Ohio, I 87; Code Civ. Proc. Ind., \ 50; Eev. Stat. Wis., ch. 125, \ 4; Code Civ. Proc. Kan., § 89; Code Civ. Proc. Neb., J 94; Code- Civ. Proc. N. C, I 95; Code Proo. S. C, g 167; Code Civ. Proc. Pla., J 95; Code Proc. Minn., J 80; Dig. Arlc. 1874, § 4564. 2 Code Civ. Proc. Cal. 1874, § 430. ' Comp. Laws Nev. 1873, \ 1103. * Code Civ. Proc. Col., I 51. ^ Wag. Stat. 1014, § 6. « Bullitt's Code Ky., \l 92, 93. ' Code Iowa 1873, g 2648. 480 CH. XX. J REMEDIES FOR DEFECTIVE PLEADING. § 405 made by him, and embraced within the issue ;i but, by this pro- vision, the court is enabled, on demurrer, to decide in advance the particular relief to which the party is entitled by his plead- ing.- The Oregon statute simply adds the objection founded on the statute of limitations.^ The New York new Code of Civil Procedure* divides the first ground of demurrer, and adds another for misjoinder of parties plaintiff. I will consider the several grounds in detail. § 405. 1. First, that the Court has no Jurisdiction over the Person of the Defendant. — The statutes of the different states determine the counties in which actions are to be brought, both with reference to the person of the defendant and the subject of the action ; and, even in transitory actions, a defendant cannot be compelled to answer in any court other than those named in > Ante, II 161, 162. ' I do not find that the Supreme Court of Iowa has given a construction to this sec- tion, but the object of the change would seem to be the one named in the text. If the facts stated are not sufficient to constitute a cause of action — that is, not sufficient to entitle the party to any relief — of course he is not entitled to that which he seeks. But he may be entitled to some relief, and the court can, in advance, if desired by the other party, determine what it is. The convenience of thus ascertaining in advance the nature of the plain tiflf's remedial right is seen in those cases where there is doubt as to the proper mode of trial — that is, when it becomes necessary to determine whether the plaintiif is entitled to relief of a legal or of an equitable nature. This view is consistent with the ruling in Meyer v. County of Dubuque, 43 Iowa, 592, where it is held that when a petition in mandamus shows that the plaintiff has an adequate remedy by ordinary action, the pleading is demurrable upon the ground that the facts do not entitle the plaintiff to the relief demanded. [Since the foregoing was sent to the publisher, the author received a letter from Dr. William G. Ham- mond, of Iowa, who is believed to be the author of the change now being considered, and I give the following extract in answer to an inquiry respecting this clause : " The main point in the change is that it makes the prayer for relief a material demurrable part of the pleading, instead of a mere bit of surplusage, and enables the court to dis- pose, easily and cheaply, of many questions that would otherwise go to the jury. * * * I am sure it is a move in the right direction to give more importance to the prayer for relief, the office of which is easily understood by clients as well as attorneys. If the relief demanded must be distinctly and correctly formulated — in face of a demurrer, if it is not well chosen — lawyers will have to ask themselves before begin- ning 'What sort of relief do my facts entitle me to?' and thus we may have some progress towards that new logic of pleading which I have always felt sure must sooner or later come outtof the Codes."] 3 Code Civ. Proc. Oreg., I 66. * Code Civ. Proc. N. Y. 1876, I 488. 481 § 406 OF PLEADINGS. [PART II. the statute. Very seldom, however, will a demurrer lie for this cause, and for the reason that pleadings do not show the resi- dence of the parties. In an early case in New York, where a foreign corporation — over which, in respect to the matter in dis- pute, the court had jurisdiction — answered, setting up a want of jurisdiction because the statute had not been pursued in attempt- ins to brinsr it into court, it was held that the statute under con- sideration did not apply to a case of that kind. "The meaning of the clause — that the court has no jurisdiction of the person — is that the person is not subject to the jurisdiction of the court, and not that the suit has not been regularly commenced. If the suit has not been regularly commenced, the defendant must relieve himself from such irregularity by motion." ' I will not attempt to give the practice as it exists in the different states, only remarking that the New York practice in respect to venue and the right to bring suit without reference to the residence of defendant does not prevail elsewhere. § 406. 1 — Second, that the Court has no Jnrisdictlon over the Subject of the Action. — This is a fatal objection to a pro- ceeding ; it cannot be waived by the parties, and the objection may be raised at any stage of the proceedings. This want of jurisdiction arises : ( 1 ) When the decision upon the demand be- longs to the political department of the government — as, in claims against the state, which cannot be sued unless by express authority of law, the mandamus, which is sometimes issued to the financial officers of the state, being only directed to them ia their ministerial capacity, compelling them to credit and pay claims already legalized. (2) The exclusive cognizance of cer- tain matters may be given to courts of special jurisdiction — as, to courts of probate — and if proceedings are instituted elsewhere the defendant may demur .^ And in an inferior . court of special jurisdiction the pleading must show the facts which bring the cause within its jurisdiction, or it is demurrable.** The Federal 1 Nones v. The Hope Mutual Life Ins. Co., 8 Barb. 541 ; a. c, 5 How. Pr. 96 ; and 3 Code E. 161. 2 Dodson, Admr., v. Scroggs' Admr., 47 Mo. 285 ; Cones v. Ward, 47 Mo. 289. 8 Doll V. Feller, 16 CaL 432 ; Schell v. Leland, 45 Mo. 289. 482 CH. XX.] EEMEDIES FOR DEFECTIVE PLEADING. § 407 courts are courts of special jm-isdiction, and it is universally con- ceded that, in actions brouglit in one of those courts, the original pleading must show affirmatively the facts which, under the Con- stitution and laws of the United States, give it jurisdiction. (3) But this want of jurisdiction will more commonly appear in local, as distinguished from transitory, actions. This matter is regulated by statute in all the states, and reference must be made to the statute to determine the jurisdiction of the court over the subject- matter of the action — the property to be affected by it. In general, actions concerning the realty must be brought and prosecuted, unless a change of venue is given, in the county in which the propei'ty lies ; and so in original proceedings in attach- ment. Prosecutions against local officers for malfeasance or mis- feasance in office must ordinarily be made in the counties where they held their office and gave their bond.^ § 407 . 2. That the Plaintiff has not legal Capacity to sue. — This incapacity may ai-ise (1) because the plaintiff is not en- titled to sue by reason of some personal disability; or (2) because he has no title to the character in which he sues.^ There are some cases in which judges speak of the first class as though it were the only one contemplated by this clause of the statute. Thus, in Indiana, Elliott, J., says: "A demurrer for the statutory cause of the want of legal capacity to sue has reference to some legal disability of the plaintiff, such as infancy, idiocy, or coverture," etc.^ And so, in Kansas, the remark is made that the ground of demurrer that the plaintiff has not legal capacity to sue " only goes where there is a legal incapacity, such as infancy, coverture, lunacy, and the like." * But this, as will be presently seen, is too narrow a view of the statute. Under the first class, if a married woman, who is authorized to sue alone 1 As to local actions, see, ante, J? 284r-286. » Moak's Van Santvoord [* 668]. 3 Debolt V. Carter, 31 Ind. 355, referred to approvingly in Rogers v. Lafayette Agricultural Works, 52 Ind. 296. This remark is not an express ruling ; the question as to the full scope of the provision was not necessarily raised. * Kingman, C. J., in Winfield Town Co. u. Maris, 11 Kan. 147. Nor was this re- mark a ruling, as the real question decided was that a demurrer would not lie for a misioinder of parties. 483 § 408 OF PLEADINGS. [PABT U. in respect to her separate estate, sues by attorney, instead of next friend, the pleading is demurrable for want of capacity to sue ; '■ and the same principle would apply to an infant, or other person under disability. An alien enemy without license is un- der disability ; and so, at common law, is an alien friend, in respect to real actions.^ § 408. Continued. — Incapacity to sue, arising from the want of title to the character in which the plaintiff sues, has been more frequently brought to the notice of the courts. The Code makes no change in regard to this incapacity, or in the mode of meeting it. Upon this subject Lord Redesdale says: "Though the plaintiff in a bill may have an interest in the subject, yet, if he has not a proper title to institute a suit concerning it, a demurrer will hold. Therefore, when persons who had obtained letters of administration in a foreign court on that ground filed a bill seek- ing an account of the estate, a demurrer was allowed because the plaintiffs did not show, by their bill, a complete title to institute a suit concerning the subject ; for, though they might have a right to administration in the proper ecclesiastical court in Eng- land, and might, therefore, really have an interest in the things demanded by their bill, yet, not showing that they had obtained such administration, they did not show a complete title to insti- tute their suit. And when an executor does not appear, by his bill, to have proved the will of his testator, or appears to have proved it in an improper or insufficient court, as he does not show a complete title to sue as executor, a demurrer will hold."^ When an action is brought by a corporation, the necessity of showing the fact of incorporation, and the cases in which that necessity is dispensed with, have been discussed in a preceding chapter.* The statutes of New York and Wisconsin excuse a do- mestic corporation plaintiff from proving its corporate existence, unless it is specially denied ; hence the allegation in the first in- 1 Palmer v. Davis, 28 N. T. 242. The real point decided was that, in pleading to the merits, this objection was waived. 2 1 Bac. Abr., title, Aliens D. « Mitford's Eq. PI. [* 155]. • Ante, ch. 14, JJ 246-261. 484 CH. XS.] REMEDIES POK DEFECTIVE PLEADING. § 408 stance is not required in those states, and hence a demurrer for incapacity to sue will not lie, unless it affirmatively appears in the complaint that the plaintiff suing as a corporation is not one in fact.^ As heretofore shown,^ the rule which would be proper in New York, etc., has been illogically followed in some states where there is no such statute, but in others it is prop- erly held that a corporation plaintiff must, in the first instance, show the facts which give it a corporate existence, unless such existence will be judicially noticed, or unless the defendant has acknowledged it in the contract sued on.^ The statutes referred to of New York and Wisconsin do not extend to foreign corpora- tions ; hence as to them the same rule should prevail.* It be- comes necessary, in this connection, to inquire whether the ab- sence of the proper averments should be objected to by demur- rer, upon the ground that the plaintiff has not legal capacity to sue or because the pleading does not state facts sufficient to con- stitute a cause of action. I infer that the former should be the ground of the objection, because of the character of the defect. The objection to the pleading because it does not state facts sufficient to constitute a cause of action goes to the liability itself; to the statements showing the contract, its breach, and the plaintiff's and defendant's connection with it ; or the duty and its disregard, and the injury which the plaintiff has suffered. There may be a liability on the part of the defendant, even if the plaintiff, has no legal existence — as, when the action is by a pretended corporation; and if this non-existence is the only objection, a cause of action is made out in favor of those who assume to be a cox-poration. Although the plaintiff, if an artificial person whose existence is not presumed, may be required to show such exist- ence on paper, that the fact may be put in issue, yet the failure to do so is not a failure in stating the cause of action. It is but reasonable, then, that the statute should require the defendant, if he objects to the plaintiff's demand because, where it is not presumed, be does not show a right to appear in court, to base 1 Phoenix Bank v. Donnell, 40 N. T. 410, z Ante, ?§ 250, 251. 3 Ante, I 259. * Ante, I 250. 485 § 409 OP PLEADINGS. [PART II. his objection specifically upon that ground ; and I know of no comprehensive phrase that so well describes the ground of the objection as a want of legal capacity to sue. In New York, in the Supreme Court, it is held, when the plaintiff is a foreign cor- poration, that the objection to the complaint because it fails to show its corporate character must be taken under the second, and not the sixth, subdivision of the section stating the grounds of demurrer.^ And the Court of Appeals, in an action by a do- mestic corporation, while expressing doubt as to the necessity of the allegations showing the plaintiff's incorporation, held that the defect could not be taken advantage of by demurrer because the complaint did not state facts sufficient to constitute a cause of action, but it must be based upon the incapacity of the plaintiff to sue.^ § 409 . Continued. — We have also considered the rule that when one sues in a representative capacity his pleading must show his representative character, or his right to sue in such capacity.^ The general law in regard to the right to appear for others is the same as before the adoption of the Code. When an action is brought by a foreign executor or administrator, without showing authority from the state in which the proceed- ing is had, the complaint is demurrable for the want of capacity to sue.* An agent of a foreign bank brings suit in his own name, alleging that he is " duly authorized ' ' to institute proceedings on behalf of the bank. A demurrer, as not showing authority to sue, was sustained, the allegation being treated as but a con- clusion of law, and it was held that the complaint should have set out the terms of the act of Parliament, if there was any, under which the bank was organized, and under which the au- 1 Connecticut Bank v. Smith, 9 Abb. Pr. 168 ; s. u., 17 How. Pr. 487. » Fulton Pire Ins. Co. v. Baldwin, 37 K T. 648. In Devoss v. Gray, 22 Ohio St. 160, no question was raised in regard to the form of a demurrer, which was a gen- eral one, but it was sustained upon the ground that in an action by a corporation the petition should show its legal existence. » Ante, il 261-267. * Bobbins v. "Wells, 26 How. Pr. 16; s. c, 18 Abb. Pr. 191; Moir v. Dodson, 14 "Wis. 279, and the objection is waived, unless the pleading is demurred to upon that ground. 486 CH. XX.] REMEDIES FOE DEFECTIVE PLEADING. § 409 thority to sue was given the plaintiff.^ An invalid appointment of a receiver had been made, and it was held that a demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action would not lie, but that it should have been based upon the plaintiff's incapacity to sue;'' and in a writ of quo warranto, upon the relation of certain persons, it is also held that a general demurrer will not raise the question as to the right of the relators to sue, but that their want of ca- pacity should have been specifically made the ground of the demurrer.* In a case in the New York Supreme Court, the doc- trine is declared, in general terms, that a demurrer upon the ground that the plaintiff has no legal capacity to sue cannot be sustained unless it appears on the face of the complaint that he has not such capacity.* A distinction is made in regard to the manner of alleging title between assignees in bankruptcy and others in whom the title to the property vests, althaugh in trust, and executors and administrators. The former may sue in their own name, as the owners of personal property which has been 1 Myers v. Machado, 6 Abt. Pr. 198. ' Viburt V. Frost, 3 Abb. Pr. 119. 3 The People v. Crooks, 53 N. T. 648. ♦ Barclay v. Quicksilver Mining Co., 6 Lans. 25. Reference for authority is had to Phoenix Bank v. Donnell, 40 N. Y. 412, without noting the fact that in that case the plaintiff was a corporation, and that by statute it is made unnecessary to prove, and, therefore, to aver, in the first instance, the facts showing the incorporation. The plaintiff in Barclay v. Quicksilver Mining Co. complained as a sequestrator of de- fendant's effects, showing his authority and appointment by a Pennsylvania court, and the demurrant claimed that, as such, he could have no standing in a New York court. Upon this, the court, per Gilbert, J., in overruling the demurrer, says : "The learned counsel for the defendant has referred us to numerous authorities in support of this position. They are cases referring to foreign executors, administrators, guardians, receivers in ordinary creditors' suits, and the like. All of them proceed upon the principle that the rights and powers with which such persons have been invested in the foreign state cease when they pass beyond the limits thereof. They do not touch the question involved in the assertion of rights pertaining to actual ownership acquired under foreign laws. It cannot be questioned that devisees or legatees may sue here to recover property devised or bequeathed to them by a person domiciled in a foreign state, if such devises and bequests are valid according to the law of this state. So the assignee of a foreign executor may sue here. Foreign as- signees in bankruptcy have the same right," etc., etc., extending the right to receivers and trustees of foreign corporations. 487 § 411 OP PLEADINGS. [PAET II. converted, while the representative character of the latter must be shown in the pleading.* § 410. 3. That there is another Action, pending between the same Parties for the same Cause. — It was early held in the Supreme Court of New York that section 144 of the Code, in stating this ground of demurrer, did not change the law as before existing, and that a demurrer or answer, because another action is pending in the courts of the United States, or of another state, raises no objection to the pleading, and states no defense. The creditor may pursue the debtor or his property to judgment in different jurisdictions, but a satisfaction in one may be pleaded in bar in all others.^ The plea of pendency of another action in a tribunal having concurrent jurisdiction must distinctly show that the same parties and the same subject-matter are before it.' It is sufficient if the other action pleaded was pending at the com- mencement of the suit.* § 411. 4. That there is a Defect of Parties Plaintiff or De- fendant. — The defect of parties for which a demurrer is allowed by the Code is only a deficiency, not an excess, of parties.' And 1 Ag to the last point, see ante, J 264, and notes. As to the first point, see preced- ing note ; also, Dambmann v. White, 48 Cal. 439, where the distinction is made. The suit was by an assignee in bankruptcy, and the court, per Crockett, J., says : " The ultimate fact to be proved, and which was averred, was that the title was in the plaint- iff, and it was unnecessary to state in the complaint how he acquired it. In suits by or against executors or administrators, their representative character must be averred in the pleading, as was held in Halleck v. Mixer, 16 Cal. 574, and Barfield v. Price, 40 Cal. 535, for their right to sue and be sued results, by operation of law, from the rela- tion which they occupy towards the estate, and this relation must be averred and proved, if denied. But in proceedings in bankruptcy the legal title vests in the as- signee under the assignment." This reasoning would not apply to a contract trans- ferred to the assignee by virtue, only, of the bankrupt proceedings. 2 Burrows v. Miller, 5 How. Pr. 51, per Edmunds, J. ; followed by Dunn, J., in Cook V. Litchfield, 5 Sandf. 330. See De Armond v. Bohn, 12 Ind. 607. 3 Bourland v. Nixon, 27 Ark. 315; Dawson v. Vaughan, 42 Ind. 395; Sangstor v. Butt, 17 Ind. 354. * Lee V. Hefley, 21 Ind. 98. 5 New York & New Haven E. Co. v. Schuyler, 7 Abb. Pr. 41 ; 17 N. T. 592 ; Pea- body V. Washington County Mutual Life Ins. Co., 20 Barb. 339 ; Gregory v. Oaksmith, 12 How. Pr. 134 ; Pinckney v. Wallace, 1 Abb. Pr. 82 ; Churchill v. Trapp, 3 Abb.Pr. 488 CH. XX.] REMEDIES FOR DEFECTIVE PLEADING. § 412 although the proper mode of taking advantage of the defect, when it is not shown by the pleading, is by answer, yet, where it is so shown, a demurrer must be put in ; alleging it by answer is not enough;! it is a nullity .^ And the party demurring is confined to the cause specified.' Also, a demurrer upon the ground that the complaint does not state facts sufficient to con- stitute a cause of action does not raise the question of a defect of parties. Unless that ground of objection is specifically made, it is waived.* A demurrer for this cause will not lie unless it affirmatively appear by the pleading demurred to that the per- son who should have been made a party is living at the time the action is commenced. If it does not so appear, the objec- tion must be taken by answer.^ The California, Nevada, and Colorado pleader is also required to demur for a misjoinder as well as defect of parties ; ^ and in Missouri, the making of unnec- essary parties is made a seventh ground of demurrer.'' Hence in those states it follows, from the general requirement to dis- tinctly specify the grounds upon which the objection is taken, that the making of such unnecessary parties must be given as the ground of the demurrer, and that it will not be sufficient to base it upon a non-statement of a cause of action, and, upon princi- ple, those only should be permitted to demur who are improperly made parties.^ § 412. 5. That several Causes of Action are improperly 306 ; The People v. City of New York, 8 Abb. Pr. 7 ; Bennett v. Preston, 17 Ind. 291 ; Hill V. Marsh, 46 Ind, 218; Truesdell v. Ehodes, 26 "Wis. 215; Dubuque County v. Reynolds, 41 Iowa, 454, etc. 1 Rhodes v. Dymock, 33 N. Y. Superior Ct. 141 ; Cunningham v. "White, 45 How. Pr. 486. 2 De Puy );. Strong, 37 N. Y. 372. s Ibid. * Grain v. Aldrich, 38 Cal. 514 ; Greensburgh, Milford & Hope Turnpike Co. v. Sidener, 40 Ind. 424. _ 5 Brainard v. Jones, 11 How. Pr. 569; Soofield v. Van Syckle, 28 How. Pr. 97; Levi V. Haverstick, 51 Ind. 236, etc. 6 Code Civ. Proc. Cal. 1874, g 430; Comp. Laws Nev. 1873, g 1103; Code Civ. Proc. Col. § 51. ' "Wag. Stat. 1014, | 6. 8 Ashby V. "Winston, 26 Mo. 210 ; Alnut v. Leper, 48 Mo. 319. In Bank of State of Missouri v. Paris, 35 Mo. 371, and Ancell v. City of Cape Girardeau, 48 Mo. 80, the attention of the court was not drawn to the form of the demurrer. 489 § 413 OF PLEADINGS. [PAET II. united. — The Codes in every state declare what causes of action may be united in one complaint or petition, and also require that each cause of action shall be embodied in a separate state- ment. In providing for a demurrer on account of an improper union of causes of action, the first question that arises is as to which provision reference is had ; whether a demurrer will lie, and lie only, where causes of action are united in one complaint, whose union is not provided for, where the union itself is wrong without reference to the manner of the union, or whether it lies to the improper commingling in one statement of different causes of action, although they might have been united if they had been separately stated. It is now universally held that the demurrer will only lie when the union itself is forbidden, and without any reference to the manner of the union. ^ It does not matter whether causes so improperly united are separately stated or not ; the omission to state them in separate counts does not deprive the defendant of the right to demur. ^ But when causes of action which might have been united in one pleading, had they been separately stated, have been improperly intermingled in one count, the remedy is by motion.^ § 413. 6. That the Complaint (Petition) does not state Facts sufficient to constitute a Cause of Action. — This defect, and want of jurisdiction over the subject of the action, are the radical grounds of objection to a pleading — the only ones not cured by pleading to the merits — and were the defects of substance met by the old general demurrer.* The demurrer upon this ground is still commonly called a general demurrer, and should be inter- posed to a pleading, or to any of its counts or statements, when it shows that no legal wrong has been done, or that the law will not redress it, or that the party has mistaken his remedy, or when there has been an omission of some material averment ' Bass V. Comstock, 38 N. T. 21, giving different rulings in the Supreme Court, but stating the one in the text to be the prevailing and true one. Nichol v. Alex- ander, 28 Wis. 118 ; Otis v. Mechanics' Bank, 35 Mo. 128 ; Mulholland v. Eapp, 50 Mo. 42 ; Akerly v. Vilas, 25 Wis. 703 ; Wiles v. Suydam, 64 N. T. 173. 2 Goldberg v. ITtley, 60 N. T. 427 ; Wiles v. Suydam, 64 N. T. 173. ' See same authorities. * Graham v. Camman, 5 Duer, 697 ; Kichards «. Bdick, 17 Barb. 260. 490 CH. XX.] REMEDIES FOR DEFECTIVE PLEADING. § 413 necessary either to establish the wrong or to so connect the parties with it as to entitle the plaintiff to redress. In consid- ering the general rules of pleading, as ajaplied to the statement, I first spoke of matters not necessary to be stated; ^ second, of some things connected with — surrounding, as it were, and sup- porting — the principal charge, which should be stated;^ and, third, of the manner of stating all traversable facts. ^ This ob- jection to a pleading cannot be predicated upon a violation of the first class of rules, because they may be violated, and still there may be a statement of facts sufficient to constitute a cause of action.* Nor is it applicable to the third class of rules, which suppose a statement of the material facts, but one made in an improper manner. The rules, however, embraced in chapter 14 go to the substance, are imperative, and their violation is a radical error. A disregard of them will be fatal to the pleading ; it will show no cause of action, and the objection should be made by general demurrer.^ Hence, in addition to the main charge — as, the contract and its breach, the breaking of the close, the conversion of the goods, or publishing the slanderous words — the pleader will carefully consider what other facts it is necessary to prove in order to establish his right to recover. I have classi- fied some of these facts ; there may be others not included. But he will be likely to find more difficulty in regard to the principal facts — those embodied in the main charge. To attempt to cover them would have taken us through the law of liability, over almost the whole field of jurisprudence. This is matter of law to be learned other than in discussions concerning the law of pleadings, and yet the liability — the facts upon which the plaintiff must rely — are so closely connected with the statement of those facts that the law governing the one cannot be well 1 Chapter xiii. 2 Ibid. xiv. * Ibid. XV. * There is a single exception. The disregard of rule 6, chapter 13, forbidding the statement of conclusions of law, is sometimes met by a general demurrer, because the statement is not of a fact, and is treated as no statement; and sometimes it is held to be suflcient, unless met by motion to correct it by making the statement more defi- nite. See, ante, ?? 212, 213. ' We must except, however, rules Nos. 3 and 4, inasmuch as the statute makes the ■want of caoacity to sue a special ground of demurrer. Ante, \l 403, 409. 491 § 414 OF PLEADINGS. [PAET II. understood without a clear comprehension of its connection with tlie other. § 414. Continued. — There are some objections to a pleading that do not suggest themselves to the mind as radical that can be raised by general demurrer. The statute makes a defect of parties one of the grounds of demurrer, and we have seen that this means deficiency, not excess of parties, so that upon that ground a demurrer will not lie for misjoinder of parties.^ But it sometimes happens that parties come, or are brought, into court who have no interest in the controversy, and the inquiry arises. How shall this error be met? Missouri, California, Nevada, and Colorado have made it one of the grounds of demurrer,^ but where it is not so made it is recognized as so substantial a defect that it can be reached by the general de- murrer — that is, in an action by A and B, notwithstanding the facts stated show a cause of action in favor of A, they fail to show one in favor of A and B jointly, or in favor of S. This question was well considered in the Supreme Court of New York, in a case where the husband and wife joined in an action to recover damages for a personal injury to the wife. By statute, the common-law rights of the husband in respect to injuries to the per- son and character of the wife are essentially changed, and she has the exclusive right to all damages received therefor, as her sole and separate property, and concerning such property she must sue and be sued alone. It was accordingly held, on general demurrer, that the joinder was improper ; that there was no cause of action in favor of the plaintiffs.^ The New York cases 1 Ante, I 411. 2 Ante, I 404. 3 Mann v. Marsh, 21 How. Pr. 372. "It is true," says Allen, J., "tliat where all parties plaintiff do not show an interest in the cause of action, there is, in one sense, a misjoinder of plaintiffs; but, in a more important sense, it is a failure to make a case entitling the plaintiffs to recover against the defendant." And the learned judge goes on to show that, although a judgment could be given in favor of one plaintiff and against another, and although an amendment could be made after demurrer by striking out one plaintiff, yet, before the trial, the misjoinder could only be reached by a demurrer to the whole complaint as to the cause of action in favor of both parties, for there cannot be a demurrer as to one plaintiff and an answer as to another. This case is followed in Walrath u. Handy, 24 How. Pr. 353, 492 CH. XX.J REMEDIES FOE DEFECTIVE PLEADING. § 414 cited are where the husband and wife are improperly joined, but the principle applies as well when the plaintiffs do not hold that relation, and it is so stated.^ The above doctrine is followed in Indiana, and without reference to the marital relation of the plaint- iffs ;^ and in Wisconsin as to the improper joinder of the wife ;^ also in Ohio.* If a defendant is improperly made a party, he, but not those properly joined, may demur because the complaint does not state facts sufficient to constitute a cause of action against him, and, if the demurrer is sustained, the complaint will be dis- missed as to him.* The complaint, or the counter-claim, will sometimes show that the demand has been barred by the statute of limitations. At common law one can only avail himself of the statute by plea, and in equity by plea, answer, or demurrer. The protection of the statute is held, at common law, to be waived unless specifically invoked by plea, and, in some of the Code states, an answer setting it up is expressly required, or no advantage can be taken of it. In others, however, in the absence of a statutory provision regulating the practice, that of the equity courts has been adopted, and a general demurrer will lie when the pleading demurred to shows that the statutory period has ex- •where the wife was an unnecessary party, and soon after by the Court of Appeals, in Palmer v. Davis, 28 N. Y. 242. The court, joer Marvin, 0., says: "In the present case the defendant could have demurred successfully to the complaint, upon the ground that it stated no cause of action in favor of Joseph Palmer, and, as to him, the complaint would have been dismissed." It was also followed in Eichtmyer v. Bichtmyer, 50 Barb. 55, and Parnham v. Campbell, 34 N. Y. 480. 1 Mann v. Marsh, supra. 2 Berkshire v. Shultz, 25 Ind. 523 ; Goodnight v. Goar, 30 Ind. 418 ; Debolt u. ■Carter, 31 Ind. 355 ; Lipperd v. Edwards, 39 Ind. 166 ; Patman v. Leet, 41 Ind. 133. In Trisler v. Trisler, 38 Ind. 287, the remark is made that if the complaint demurred to was good as to any of the parties demurring, there was no error in overruling it. Is this quite consistent with the cases just cited? Also, the remark in the Greens- burgh, Milford & Hope Turnpike Co. v. Sidener, 40 Ind. 426, 427, that a general de- murrer does not raise any question as to the parties to the action. 3 Kead u. Sang, 21 Wis. 678. ■' Bartges v. O'Neil, 13 Ohio St. 72. The court recognizes the general doctrine. 5 Makepeace v. Davis, 27 Ind. 352 ; Goflf v. May, 38 Ind. 267 ; Turner v. Pirst National Bank of Keokuk, 26 Iowa, 562. A demurrer by two or more, if there is a cause of action against one of them, will be overruled. Webster v. Tibbits, 19 Wis. 438 ■ New York & New Haven E. Co. v. Schuyler, 17 N. Y. 592 ; Goncelier v. Poret, 4 Minn. 13 ; The People v. City of New York, 28 Barb. 240 ; Phillips v. Hagadon, 12 How Pr. 17 ; Christian v. Crocker, 25 Ark. 327. 493 § 415 OF PLEADINGS. [PART II. pired, although, in a few of the states, the pleading is not demur- rable unless it also show that the case is not within any of the statutory exceptions. This matter has been before briefly con- sidered, under defenses of new matter.^ § 415. Additional Grounds in some o£ the States. — By reference to section 404 of this chapter it will be seen that the states of Missouri, California, Nevada, and Colorado make mis- joinder, or too many parties, as well as defect of parties, a ground of demurrer. We have also seen that in those states where misjoinder is not expressly made a ground of demurrer it will not lie because of a defect of parties — that is, that ground of demurrer cannot be given — but if a defendant wishes to raise the question, he must do it by a demurrer for want of facts, ^ specify- ing, however, the reasons why, or the parties in whose favor or against whom, the facts stated do not constitute a cause of ac- tion. In the above states, however, misjoinder having been specially named, it should be made the ground of the demurrer,' and no one but the person improperly joined can raise the objec- tion, either by specifically objecting to the misjoinder, in those states where it can be done,* or, in the other states, by basing the objection upon the fact that the pleading shows no cause of action against the party demurring.* If, however, the demur- rer is joint, it should be overruled as to the persons properly joined, and sustained as to those who should not have been united.^ California, Nevada, and Colorado also authorize a de- murrer upon an additional ground — " that the complaint is am- biguous, unintelligible, or uncertain"^ — and thus bring within the scope of a demurrer defects that can only be reached else- where by motion.^ Those states — as, Iowa and Oregon — that ' See, ante, § 355, and notes. 2 Ante, I 414. ' Summers v. Parish, 10 Cal. 347 ; Alnutt v. Leper, 48 Mo. 319. • Ashley v. Winston, 26 Mo. 210 ; Alnutt v. Leper, supra. 5 Ante, I 414. * Ancell V. City of Cape Girardeau, 48 Mo. 80. ' Code Civ. Proc. Cal., I 430 ; Comp. Laws Nev. 1873, ? 1103 ; Code Civ. Proo. Col., I 51. ' As to what is ambiguous, etc., see, ante, g 314, auipost, g 425. 494 CH. XX. J REMEDIES FQE DEFECTIVE PLEADING. § 416 have expressly made the statute of limitations available on de- murrer,' have only in terms authorized the pleader to do what he is permitted elsewhere to do by a demurrer for want of facts ; with this implied restriction, however, that he is required to specifically avail himself of his privilege under the statute. The Code of Iowa adds two other grounds — one that the pleading fails to show the contract to be in writing, when it should be so evidenced, and one for failing to attach or incorporate into the pleading the writing or account upon which the action is based.'' § 416. " The Demurrer must distinctly specify the Grounds of Objection." — Such is the general requirement, with the pen- alty that, unless it do so, it may be disregarded. Yet this re- quirement is held to mean only that the particular defect relied on may be designated as described in the statute. Thus, the substantial and radical defects — the two which are not waived by pleading to the merits — are sufficiently indicated by its general language.* In an early case in New York the general question was considered at length in an opinion by Harris, J., who held that the requirement to distinctly specify the grounds of demur- rer only meant the several grounds named in the statute as dis- tinguished from each other, and that they may be each desig- nated in the language of the statute, except in the two subdivis- ions going to the jurisdiction of the court and the defect of par- ties. In these, to make the specification distinct, the demurrant must say whether the want of jurisdiction is over the person of the defendant or over the subject of the action, and, also, whether the defect of parties is in the plaintiffs or defendants.* This ruling has been since followed." Upon one of the grounds of de- murrer Mr. Story thus states the rule in equity pleadings : "A demurrer for want of necessary parties must show who are the proper parties, from the facts stated in the bill ; not, indeed, by 1 See I 404. 2 See § 2648. « Spear 1). Downing, 34 Bar!), 522; Haire v. Baker, 1 Seld. 357; Kent ». Snyder, 30 Cal. 666 ; Morgan v. Bouse, 53 Mo. 219. * Getty V. Hudson River E. Co., 8 How. Pr. 177. 6 Hulbert v. Young, 13 How. Pr. 413; Dayton v. Oonnah, 18 How. Pr. 326. 495 § 416 OF PLEADINGS. [PAET II. name, for that might be impossible, but in such a manner as to point out to the plaintiif the objection to his bill, and to enable him to amend by making proper parties ; " ' and the doctrine of this rule seems to be recognized in a case in the New York Su- preme Court, although it is not very clear.* In California, while the general view is followed that a demurrer upon the ground that the complaint does not state facts sufficient to constitute a cause of action is sufficient, if stated in the language of the stat- ute, yet the rule will not hold if the demurrant seeks to protect himself by the statute of limitations. He must add the woi-ds, " because the cause of action therein alleged has not accrued within years next preceding the filing of said complaint," or words equivalent.^ The Code of Iowa of 1873 meets the gen- eral ruling that the objection may be made in the languiige of the statute by the following provision : "Sec. 2649. A demur- rer must specify the number and grounds of objection to the pleading, or it will be disregarded ; and it shall not be sufficient to state the objection in the terms of the preceding section, ex- cept that a demurrer to an equitable petition for the fifth reason of said section may be stated in the terms thereof."* Hence the rulings in Iowa, to conform to the statute, must necessarily require greater particularity in stating the grounds of a demur- rer than is elsewhere deemed necessary. In Indiana the names of the parties improperly omitted must be given, although, if they are members of a firm, the firm name may be given in the demurrer, if the individual names of its members otherwise appear;^ but a general allegation that the complaint, answer, or reply does not state facts sufficient to constitute a cause 1 Story's Eq. PI., § 543. 2 Skinner v. Stuart, 13 Abb. Pr. 442. ' Brown v. Martin, 25 Cal. 82. Tliis case is commented on in Kent v. Snyder, 30 ■Cal. 672, and the principle stated that "whenever the defense, if of the nature of a special privilege, of which the party can only avail himself by pleading it, then his pleading, whether it be by demurrer or answer, must specify the grounds of his de- fense." A demurrer in these words, "that it appears, by the complaint, that the cause of action is barred by the statute of limitations," is held to be sufficient in Bren- nam v. Ford, 46 Cal. 7. * The fifth reason referred to is, "that the facts stated in the petition do not entitle the plaintiff to the relief demanded." 6 Durham v. Bischof, 47 Ind. 211. 496 CH. XX. 1 REMEDIES FOR DEFECTIVE PLEADING. § 417 of action, or a defense to the answer, as the case may be, is sufficient under the fifth specification in tlie Code of tliat state,^ altliough it docs not raise any question as to the parties. § 417. Some general Considerations. — The demurrer may be made to the whole petition, or to the statement of any of the causes of action eml)odied in it ; but if made to the whole plead- ing, it will be overruled if any of the statements are held to be good.^ And if the demurrer be to the first, second, and third paragraphs of an answer, or either of them, it is a joint demurrer, and will be overruled if any of the paragraphs are good.^ A demurrer does not go to the lelief prayed for — only to the state- ment of the facts.* As a demurrer presents an issue upon which the parties go to trial, judgment must necessarily be rendered upon the decision, unless the demurrer is withdrawn and further pleading permitted. If it he overruled, the demurrant, if ho Avishes to make an issue of fact, should ask leave to withdraw his demurrer, and to answer or rejjly, as the case may be ; and, without a formal witlidrawal, leave to plead to the merits, fol- lowed by such pleading, is generally treated as such withdrawal.^ If the demurrant wishes to take advantage of any supposed error in overruling the demurrer, he must let final judgment be entered upon it; for if he shall answer, after such ruling, ho waives any objection to it, except for the two radical defects,^ and the question cannot be afterwards raised, either by answer 1 Greensburgh, Milford & Hope Turnpike Co. v. Sidener, 40 Ind. 424. ' Urton V. Luckey, 17 Ind. 213 ; Griffiths v. Henderson, 49 Cal. 567 ;' Armington v. The State, 45 Ind. 10; Holbert v. St. Louis, Kansas City & Northern R. Co., 38 Iowa, 315; Bonny ■!). Bonny, 29 Iowa, 448; Hale v. Omaha National Bank, 49 N. Y. 626; King V. Enterprise Ins. Co., 45 Ind. 43 ; Wright v. Indianapolis & Cincinnati R. Co., 18 Ind. 168 ; Bondurant v. Bladen, 19 Ind. 160. 5 Earner v. Morehead, 22 Ind. 354. See, also, Martin u. Mattison, 8 Abb. Pr. 8 ; Butler u. Wood, 10 How. Pr. 222. « Kemp V. Mitchell, 29 Ind. 163; Conner v. Board of Education, 10 Minn. 439; Beale v. Hays, 5 Sandf. 640; Hammond v. Cockle, 5 N. Y. Sup. Ct. 56; 3. ^., 2 Hun, 495 ; Acker v. McCuUough, 50 Ind. 447. 6 Pickering v. Mississippi Valley National Telegraph Co., 47 Mo. 457 ; The City of Jeffersonville v. The Steam Ferry-boat John Shallcross, 35 Ind. 19. 6 Fisher v. Scholte, 30 Iowa, 221 ; Township Board of Education v. Hackmann, 48 Mo. 243. 497 § 417 OF PLEADINGS. [PAKT II. or by objecting to testimony.^ In Indiana one may save his exception to tiie action of the court on demurrer.'' When a demurrer is sustained, whether the pleader, by amending, waives any objection to the ruling of the court may depend upon cir- cumstances. It is said, in general terms, that he cannot assign for error the action of the court in sustaining the demurrer.' But, suppose the pleader is thus driven to the necessity of alleg- ing, and consequently proving, facts not necessary to his cause of action or his defense ; suppose he fails in this, and the issues are decided against him, but did prove enough to sustain his original pleading, which the appellate court holds to have been sufficient ; in such case it would hardly be held that he has waived his objection to the action of the court. The judgment, in consequence of it, is for the wrong party, and should be reversed. But if the demurrer had been for formal defects, and the final result had not been affected, it is reasonable to say that, by amending, the pleader has waived his objection.* It was an old rule that a demurrer ran through the whole series of pleadings, and that judgment would be awarded against the first party whose pleading was defective in substance.* This rule was not a technical one ; it necessarily attaches to every system ; for when the court is advised of any substantial error or defect in a pleading — one that is not waived by pleading to the merits, and one that will render a verdict nugatory which may be founded upon it — it will go no further, and will require the defective pleading to be amended, or will render judgment against the party thus at fault. Hence it is held that a demurrer to an answer reaches a complaint that shows a want of jurisdiction of the sub- ject of the action, or that does not show facts that constitute a, cause of action,* and that a demurrer to a reply will reach an 1 Tennant v. Pfister, 45 Cal. 270. 2 Zelinor v. Beard, 8 Ind. 96. ' District Township of White Oak v. District Township of Oskaloosa, 44 Iowa, 512. * Huifraan v. McDaniel, 1 Oreg. 259. 6 1 Chitty's PI. 668, and notes. ' Martin v. McDonald, 14 B. Mon. 548; Young v. Duhme, 4 Meto. (Ky.) 239; Stratton v. Allen, 7 Minn. 502 ; Lockwood v. Bigelow, 11 Minn. 113 ; Trott u. Sar- chett, 10 Ohio St. 241 ; Person v. Drew, 19 Wis. 225. 498 CH. XX. J EBJrEDIES FOE DEFECTIVE PLEADING. § 418 answer whioh fails to state facts that constitute a defense.^ A demurrer to a counter-claim is held to have the same effect.^ § 418. What does a Demurrer admit? — In denying the legal conclusion from the facts pleaded, the admission of their truth as facts is necessarily implied, and the old rule was stated, substantially, that the truth of a pleading not obnoxious to a general demurrer was admitted ; or, more briefly, that a demur- rer admitted facts well pleaded.^ Thus, if the demurrer is over- ruled, and the pleading demurred to is thus held to be good, un- less the demurrer is withdrawn, judgment will necessarily be ren- dered against the party demurring, because he has admitted the truth of the pleading — that is, has confessed the facts held to constitute a cause of action, or a defense. Such is the theory, and yet it is improperlj' called an affirmative admission. Noth- ing is, in fact, admitted ; the demurrant simply denies the propo- sition of law involved in the pleading demurred to, and the par- ties go to trial upon an issue of law, and if this issue is found against him, judgment goes against him; the facts are admitted only because they are not denied. If it were a solemn admission upon the record, it would tell against the demurrant upon a sub- sequent trial of an issue of fact ; it would be a branch of the law of evidence, like other admissions, yet, as evidence, it admits nothino- whatever.* It is commonly said that facts only are ad- 1 Menifee u. Clark, 35 Ind. 304; Drook v. Irvine, 41 Ind. 430; Babb ». Maokey, 10 Wis. 371. 2 Lawe V. Hyde, 39 Wis. 345. » Stephen's PI. 143 ; Com. Dig. PI. ?, 6 ; 1 Chitty's PI. 662, notes i and [1], and cases cited. * "A demurrer presents only an issue of law to the court for consideration — the jury have no concern with it ; and, although it is a rule of pleading that a demurrer admits facts well pleaded for the sole purpose of determining their legal suflBciency, yet, as a rule of evidence, it was never supposed that a demurrer admitted anything." Church, J. in Pease u. Phelps, 10 Conn. 62. "A demurrer in chancery does not admit the facts charged in the bill; for, if it be overruled, the defendant may still answer." 1 Greenl. on Bv., g 55. And he may answer in a future action between the same parties. The demurrer is not an absolute admission. Tomkins v. Ashby, 1 Moo. & M., 32 • E. C. L. 22. In Ingram v. Lawson, 9 Car. & P. 326 (38 E. C. L. 136), being an action for a libel on a ship belonging to the plaintiff, there were three pleas: First, not guilty ; second, that the ship was unseaworthy ; and, third, a special plea, which was demurred to, and on which, before the trial, judgment had been given for the 499 § 418 OF PLEADINGS. [PAET H. mitted which are well pleaded. The same language is used in regard to a failure to traverse.^ When the admission is thus qualified, it is only meant that the facts uot traversed do not plaintiff. Defendant's counsel, upon argument to the jury upon the other issues, sought to refer to the pleading demurred to as showing certain admissions of the plaintiff. He was not permitted to do so, Maule, J., saying: "You surely do not mean to contend that you have a right to assume the facts stated in the plea as ad- mitted?" In Gregory v. Duke of Brunswick, 1 Car. & Kir. 24 (47 E. C. L. 23), which was an action for a conspiracy, a demurrer to a plea of justification was sus- tained, judgment was rendered, a venire awarded to assess damages, and defendant's counsel were permitted to comment to the jury upon the facts stated in the plea. The case is very briefly reported, but the reason for the permission must have been that thq truth of the plea was admitted, and, though the facts stated in it constituted no defense, they might be cited, perhaps, to mitigate damages. By the Missouri stat- ute, in an action for unliquidated damages, upon judgment against the defendant by default, or upon demurrer, an inquiry of damages follows, and it is held that the items of account charged are not admitted by the demurrer. The interlocutory judg- ment is treated as a judgment nil dicit. Darrah v. Steamboat Lightfoot, 15 Mo. 187. "On the executionof the writ of inquiry, after judgment on demurrer, the defendant cannot controvert anything but the amount of the sum in demand." 1 Ph. on Ev. 786. To an answer of new matter the plaintiff demurred; his demurrer was overruled; there was no final decree on the demurrer, but the cause was heard upon the issues joined. It was an equitable action, and "the ruling upon the demurrer, therefore," says the court, " did not conclude the plaintiff from showing the true and exact rights of the respective parties." Standish v. Dow, 21 Iowa, 363. Cutler v. Wright, 22 N. Y. 472, I do not understand. There was a demurrer to the reply; the demurrer was overruled, and judgment was rendered against the defendant. This would seem to end the matter, unless upon inquest of damages. But there seem to have been issues of fact to the jury which required evidence of the facts stated in the reply, and these were given to the jury as admitted. If the jury were simply making inquiry as to the amount of damages to be assessed, it is plain that these facts are not only admit- ted, but their legal eflfect is concluded by judgment. If the jury were trying the other issues, to which the reply did not relate, it was wrong to pay any attention to it, and so it is intimated. Selden, J., says : " While the demurrer remains upon the record the facts admitted cannot be controverted, so far, at least, as the particular series of pleadings is concerned which terminate in the demurrer. If there are other issues involving the same facts, they are not affected by the demurrer." Two defendants answer separately, and the plaintiff traverses the answer of one and makes no reply to the other. The statute provides that new matter, "not controverted by the reply, shall, for the purposes of the action, be taken as true." The defendant whose an- swer is traversed cannot use the answer of his co-defendant to show what the plaintiff has admitted by his failure to reply. The non-controverted facts are not evidence, and the admission is only in favor of the party pleading them. Bartholoww. Camp- bell, 56 Mo. 117. "A demurrer admits facts well pleaded, hut only for the purpose of deciding the question raised by it; the statements in the petition demurred to are no evidence on tlie question of damages, or on the general issue." Napton, J., in McKinzie v. Mathews, 59 Mo. 99. 1 Alston V. Wilson, 44 Iowa, 130. 500 CH. XX. J REMEDIES FOE DEFECTIVE PLEADING. § 420 constitute a cause of action, or a defense, or counter-claim, or a valid reply, and, therefore, the party shall take nothing by plead- ing them ; if the demurrer is sustained, the so-ciilled admission shall not harm the demurrant. If the facts stated in the plead- ing demurred to are insniEcient, they are not helped by adding a conclusion of law ; such conclusions are not admitted. " It is to the soundness of these conclusions, whether stated in the com- plaint or not, that a demurrer is directed, and to which it applies the proper test." ^ Nor does a demurrer admit the truth of alleged facts which are contradicted by tlie exhibits ; ^ nor will matters of which the couit takes judicial notice be treated as facts admitted;' nor is the correctness admitted of averments concerning the meaning of a paper.* II. Answers. ^ 419. Defects met by Answer. — After having enumerated the defects in the complaint or petition, in consequence of which, when they appear upon its face, the defendant may demur, the statutes of the different Code states all provide that when they do not thus appear the objection may be taken by answer. In such case the objection is not to the pleading, but to the plaint- ift"s present right of action, and tiie matter is only alluded to in this connection because of its close relation to demurrers. The proper place for its consideration is in connection with defenses of new matter, in chapter 17. III. Motions. § 420. Most formal Defects met by Motion. — A direction by a court or judge, either in writing or entered upon the proper book, in an action or a special proceeding, unless con- tained in a judgment, is an order, and an application for an order is a motion. The descriptions of an order vary in lan- iruao-e, as adapted to the practice in the several states, but they are 1 Branham v. San .losg, 24 Cal. 585. See, also, Hartford Bank v. Green, 11 Iowa, 476; Smith v. Henry County, 15 Iowa, 385; Griggs v. City of St. Paul, 9 Minn. 246. 2 Bush V. Madeira, 14 B. Mon. 212 ; Bonnell «. Griswold, 68 N. Y. 294. 3 Attorney-General v. Poote, 11 Wis. 14. * Bonnell ». Griswold, 68N. Y. 294. 501 § 421 OF PLEADINGS. [PART II. substantially the same, and everywhere a motion is an applica- tion for an order .^ In order to reach errors in pleading, resort is now had to motions far more frequently than under the old system, and they are employed in all cases where a demurrer, or an answer, setting up objections for defects which do not appear on the face of the pleading, will not lie. Certain de- fects are expressly named in the statute in respect to which a motion is pointed out as the remedy, and a practitioner will be always safe, when he sees any defect in his ad- versary's pleading for which no specific remedy is provided, and which may be the subject of an order, to meet it by mo- tion, under penalt}' that, if he does not do so, he will be sub- sequently ruled to have waived his objection. The practice in regard to motions, notice of motions, etc., varies in different states, but in all a motion to correct pleadings, or dispose of a pleading, or part of it, must clearly specify the reasons upon which it is based.^ In this connection, the practice will not be considered, unless incidentally, but the present object is to point out certain defects to be reached by this mode of proceeding. § 421. Motion to strike out a frivolous Pleading. — A frivo- lous answer, demurrer, or reply will, in all the states, be struck out on motion,^ although the Missouri Code is the only one which expressly provides for so doing.* The practice in New York, in Florida, in South Carolina, in North Carolina, is to treat such a pleading as a nullity, and seek judgment before the court or a judge at chambers. ° This pleading is readily under- stood when seen, though not easily defined. It is not a sham pleading, of which I shall presently speak ; and redundant mat- ter is not necessarily frivolous. Some of the synonyms of the 1 Code Civ. Proc. N. T. 1876, §§ 767, 768; Bullitt's Code Ky., §§ 622, 623; Code Civ. Proc. Ohio, §| 503, 509; Code Iowa 1873, 5§ 2911, 2922, etc. 2 Bowinan v. Sheldon, 5 Sandf. 657; O'Conner v. Koch, 56 Mo. 253. ' Such was the old practice. Anonymous, 2 Halst. 160 ; Coxe v. Highee, 6 Halst. 395. At common law, absurd and sham pleas were treated as a nullity, and judg- ment signed. Tidd's Pr. 584-586. * Wag. Stat. 1017, § 19. " Code Proc. N. T. 1852, § 247; Code Civ. Proc. N. T. 1876, § 537; Code Civ. Proc. Fla., ? 195; Code Proc. S. C, ^ 270; Code Civ. Proc. N. C, J 218. 502 CH. XX. ] EEMEDIES FOE DEFECTIVE PLEADING. § 421 word are "trifling," "trivial," "nugatory;" and answers, whether denials or allegations of new matter, which are mani- festly imperfect, irrelevant, or evasive, which make no issue, and present no matter for an issue in the case, are frivolous. Its char- acter must not be doubtful. It must be " one so clearly and palp- ably bad as to require no argument or illustration to show its character, and which would be pronounced frivolous and indicative of bad faith in the pleader on bare inspection." ^ Thus, without denying the making of the note in suit for value, its terms, and indorsement to the plaintiff before due, an answer that it was not to be negotiated, and that its consideration might be returned to the payee, and the note taken up, is frivolous ; ^ and an allega- tion that the plaintiff" is not the owner of the note sued on, without denying the facts showing title, is frivolous ;^ and so is a denial of payment, when it should have been averred as new matter ; * or a denial of indebtedness as charged ; or a denial that the plaintiff is entitled to the amount claimed, Mdthout de- nying the facts charged.* A demurrer is frivolous when inter- posed for a cause not named in the statute,* or where the pleading demurred to is clearly not obvious to the objection raised.'' In an action for foreclosure against the mortgagcor and his subsequent assignee, whether by conveyance or contract, an objection by the latter that his wife, who was claimed to have an inchoate right of dower, was not made a party, is frivolous.* A corporation plaintiff had sold, conditionally, certain property, by contract in writing, in its corporate name, and the defendant had purchased the interest of the vendee at execution sale. In a proceeding in regard to the property, held, that the defendant stands in the shoes of the vendee, is estopped from denying the 1 Allen, J., in Strong v. Sproul, 53 N". T. 497. See, also. Youngs v. Kent, 46 N. T. 672 ; Boylston v. Crews, 2 S. C. [n. s.J 422 ; Cottrill v. Cramer, 40 Wis. 555. ' Plant V. Schuyler, 4 Abb. Pr. [ir. s.] 146. s Plant V. Schuyler, supra; Bank of The State of Missouri v. Smith, 33 Mo. 364; Felch a. Beaudry, 40 Cal. 440 ; Weddorspoon v. Kogers, 32 Cal. 569. < Bdson V. Dillaye, 8 How. Pr. 273. 6 Posdick V. Groff, 22 How. Pr. 158 ; Drake v. Cockroft, 4 E. D. Smith, 34. ' Kenworthy v. Williams, 5 Ind. 375. ' Appleby v. Elkins, 2 Sandf. 673 ; Ferguson v. Throop, 16 Wis. 571 ; MoMahon v. Bridwell, 3 Mo. App. 572. 8 Kay V. Whittaker, 44 N. T. 565. 503 § 421 OF PLEADINGS. [PART II. pliiintiff 's corporate character, and that an answer putting it in issue is frivolous.^ An answer that the purciiasers of an equity of redemption, who had constructive notice of the mortgage by- record, had no knowledge or information sufficient to form a be- lief as to the existence of the mortgage, was stricken out as evasive;* and a similar allegation as to matters of record, of which the pleader could advise himself, was treated as frivolous," and as insufficient to raise an issue.* Many things readily sug- gest themselves as frivolous — as, a second demurrer for the same cause, when one had been overruled ; or, an answer alleging new matter of defense, obviously insufficient — as, the statute of frauds, when the contract sued on is obviously not witiiiii it ; or, the statute of limitations, when the time had not expired ; or, a promise, without consideration, to discharge the obligation in suit ; or, where the pleading is irrelevant ; or, wliere there is a traverse of immaterial matter — as, time, or jjlace, or value — when they are not material. If the pleading is put in in good faith, if there is any question as to its sufficiency, it should not be treated as frivolous. " The fact that an answer is insufficient in form and substance does not necessarily determine that it is frivolous,"^ and an answer, in an action for libel, admitting the proprietorship of the paper, but denying that the libelous arti- cle was published with defendant's knowledge or consent, and that any employee had authority to publish it, is held not to be frivolous.* A defective counter-claim cannot be treated as frivo- * Jackson Sharp Co. v. Holland, 14 Fla. 384. 2 Hathaway v. Baldwin, 17 Wis. 616. s City of Milwaukee ti. O'SuUivan, 25 Wis. 666; Mills v. Town of Jefferson, 20 Wis. 50 ; The State v. Kiohmond, 3 Mo. App. 572. * Ibid. But the recovery of a judgment against the defendant is held in Califor- nia not to be presumptively within his knowledge, and he may traverse it upon infor- mation and belief. Vassault v. Austin, 32 Cal. 597. * Youngs a. Kent, 46 N. Y. 674 ; Boylston u. Crews, supra ; Erwin v. Lowery, 64 N. C. 321 ; Swepson v. flarvey, 66 N. C. 436. " Samuels v. Evening Mail Assn., 52 N. Y. 625. As to pleadings held not to be frivolous, see Farmers & Millers' Bank v. Sawyer, 7 Wis. 379; McConihe v. Mc- Clurg, 13 Wis. 454; Clapp v. Preston, 15 Wis. 543; Eaton v. Gillett, 17 Wis. 435; Cobb V. Harrison, 20 Wis. 625 ; Howland v. Supervisors of Kenosha County, 19 Wis. 247. Courts do not always clearly distinguish between pleadings, sham or false, and those that are frivolous. Thus, a denial of knowledge or information, when such knowl- edge is clearly within the reach of the defendant, is false, and it is also evasive and 504 CH. XX.] REMEDIES FOB DEFECTIVE PLEADING. § 422 Imis or irrelevant, although it may be subject to a motion to make it more definite, or it may be demurred to.^ Yet, an answer of new matter, which, although it may constitute a good cause of action, is no defense, and can neither constitute a counter-claim, will be stricken out as irrelevant ; ^ and mutter of estoppel, if pleaded when not available as a defense, will be stricken out as irrelevant and redundant,' and, so, when relevant and irrelevant matter is so mingled in an answer that they cannot be separated, the whole will be stricken out.* § 422. Sliam Pleading. — False pleading — one good in form, but false in fact — is called sham pleading. A sham plea was, under the common-law sj'stem, subject to be struck out upon motion ;^ but if the defendant made affidavit of the truth of his plea, or a general affidavit of merits, the motion to strike out would be overruled.^ The Practice Codes of New York, In- diana, Wisconsin, North Carolina, South Carolina, Florida, Kentucky, Iowa, California, Oregon, and Colorado provide for striking out sham answers, or defenses ; ' and, while the subject is frivolous. In either case, it should be stricken out, and it may not greatly matter what it is called. Cases similar to Hathaway u. Baldwin, and City of Milwaukee u. O'Sullivan, supra, are sometimes said to show false pleading. Thus, in Lawrence v. Derby, 24 How. Pr. 133, the complaint charged an arrest by means of a writ sued out by de- fendant, and the latter alleged want of knowledge or information sufficient to form a belief in regard to the matter. The defendants, it was said, must know whether they caused the writ to be issued, and, without any affidavit by the plaintiff, it was held to be apparent that the answer was "sham, or false;" and so with other cases cited in the next section. 1 Fettretch v. McKay, 47 N. T. 426. In Missouri, as frivolousness in an answer is expressly named, the motion would probably be entertained. 2 Kurtz V. McGuire, 5 Duer, 660. 8 Eidenour v. Mayo, 29 Ohio St. 138. ' Clough V. Murray, 19 Abb. Pr. 97. In this case it did not appear whether the answer was put in as a defense or a counter-claim, and it was held to be neither. 5 1 Chitty's PI. 441 et seq. ; Oakley «. Devoe, 12 Wend. 196 ; Bowen v. Bissell, 6 Wend. 511. " Tucker v. Ladd, 4 Cow. 47 ; Brewster v. Hall, 6 Cow. 84. ' Code Proc. N. Y., I 152; Code Civ. Proc. N. Y. 1876, \ 538. The usual phrase is "sham and irrelevant answers," etc., but the now Code leaves out the word "irrelevant," inasmuch as such answers may be treated as frivolous. Code Civ. Proc. Ind., I 77; Rev. Stat. Wis., ch. 125, ? 14; Code Civ. Proc. N. C, ? 104; Code Civ. Proc. S. C, I 178; Code Civ. Proc. Pla., I 102; Bullitt's Code Ky., § 113; Code Iowa 1873, I Tt^'i; Code Civ. Proc. Cal., I 453; Code Civ. Proc. Oreg., g 74; Code Proc, Col., I 61. 505 § 422 OF PLEADINGS. [PAET II. not expressly named in those of the other Code states, it is not believed that the common-law practice is hence abolished. The New York Court of Appeals recognizes the statutory authority as but a continuance of the old power, but holds that, even when the pleading is verified, if clearly shown to be false, it should be struck out. It may be said that a defendant has a right to a regular trial upon the issues made, or new matter jDleaded, and that the truth of the facts cannot be decided upon ex-parte affidavits. When there is any doubt as to the truth of the pleading, this objection is unanswerable ; but, in an early case, the court says : " The true answer to the objection is that the right of the defendant to a trial by jury deiDended upon a real issue to be tried ; that the court had power to determine whether there was such an issue, or whether the apparent issue was fictitious and sham ; not to try the issue if there was not one in truth as well as in form ; and that the order decides, on most satisfactory proof supporting it, that the defense was destitute of truth and substance, and presented no real issue." ^ In another case, a defense upon information and belief was stricken out as false, upon the positive affidavit of the plnintiif, where the subse- quent affidavit of the defendant gave insufficient reasons for mak- ing the defense.^ The New York cases are contradictory in regard to the power of the court to treat simple denials as sham, it being held in some that the power was but a continuation of that formerly exercised, and that a sham plea was a special plea setting up new matter and tendering a fictitious issue, while in other cases all defenses evidently false are treated as sham, whether denials or whether they set up new matter. The former seems to be the prevailing view,' and answers will not be treated as sham unless new facts are pleaded which on their face con- stitute a defense. In the Supreme Court of Indiana it is held that where there are no facts upon the record, or within the » strong, J., in The People v. McCumber, 18 N. T. 815. 2 Kay V. Whittaker, 44 N. Y. 565. 5 See Farmers & Mechanics' Bank v. Smith, 15 How. Pr. 329; Claflin o. Jaro- Blauski, 64 Barb. 463 ; "Wayland v. Tysen, 45 N. T. 281 ; Thompson v. Erie E. Co., 45 N. Y. 468. It had formerly been held that denials could be treated as sham, as in Manufacturers' Bank v. Hitchcock, 14 How. Pr. 406 ; The People v. McCumber, 18 N. Y. 315, and other cases, but they are overruled. 506 CH. XX.] REMEDIES FOB DEFECTIVE PLEADING. § 422 judicial knowledge of the court, showing the fsUsity of an answer valid on its face, it should not be struck out upon affidavit that it is untrue.^ The contrary New York practice is admitted, but the court deems it better not to listen to affidavits and counter- affidavits concerning the bona fides of the defense.* In California an unverified plea of payment, upon affidavit showing its falsity, with no counter-affidavits, is held to be a sham answer under the statute, to be struck out on motion.^ It should, in this con- nection, be noted that, whether the answer be sham or frivolous, a plaintiff who comes into court with a pleading radically defective can take no advantage of the fact. He can neither move to strike out, nor for judgment.* As in demurrer, every move on his part calls the attention of the court to the defects of his own pleading. 1 Brown v. Lewis, 10 Ind. 232. ^ But it held in one case that where a defendant, by hfS answers to interrogatories, concedes his answer to the complaint to be false, it will be struck out as sham. Bee- son 1). McConnaha, 12 Ind. 420. Contra : Boggess v. Davis, 34 Ind. 82, and Mooney v. Musser, 34 Ind. 873, where it is held that the answer to interrogatories can only be used on the trial as evidence. ' Gostorfs V. Taaffe, 18 Cal. 385. The court adopts a definition given in a former case, that "a sham answer is one good in form but false in fact, and not pleaded in good faith." This definition is adopted in Foren v. Dealy, 4 Oreg. 92. The doctrine of Wayland v. Tysen, 45 N. Y. 282, as to treating a denial as sham, is adopted in Pay v. Cobb, 51 Cal. 313. The distinction between sham and irrelevant, etc., answers is thus given by Brady, J., in Struver v. The Ocean Ins. Co., 9 Abb. Pr. 23 : "A sham answer is one that is false in fact; a pleading is irrelevant which has no substantial relation to the controversy between the parties to the action ; and a frivolous answer is one which, assuming its contents to be true, presents no defense to the action." This is approvingly quoted in Clark v. JeiFersonville, Madison & Indianapolis K. Co., 44 Ind. 248. The sham pleading is very definitely given, but the distinction between an irrel- evant and frivolous one is not so clear. Indeed, the revisers of the New York Code of 1876 concede that an irrelevant pleading is frivolous. But the learned judge very properly goes on to say: "An answer, however, which is so framed that it does not set up a valid defense, but which states facts which may, by being properly averred, constitute a defense, will not be struck out as sham, irrelevant, or frivolous, but it may be answered to." Says Barrett, J., in Kiefer v. Thomass, 6 Abb. Pr. [n. s.] 42 ■ "To strike out an answer as sham, it is not enough that the court should perceive but little prospect of a result favorable to the defendant, nor even that the plaintiff's ultimate success should, upon the affidavits adduced, appear to be indubitable ; the answer must be false in the sense of being a mere pretense, set up in bad faith and ■without color of fact." Deady, United States district judge for the District of Oregon, is at fault in defining a sham pleading as one "palpably false on its face." He was, doubtless, thinking of frivolous pleading. Bachman v. Everding, 1 Sawyer, 70. * Van Alstyne v. Preday, 41 N. Y. 174. 507 § 423 OF PLEADINGS. [PART II. § 423. Irrelevant and redundant Matter. — In the same connection the Codes provide for striking irrelevant and redun- dant matter out of a pleading. Frivolous and sham pleadings are stricken out — nothing is left, and if an answer, reply, or demurrer be irrelevant as a whole, it is rejected altogether as a frivolous pleading. But in striking from a pleading irrelevunt and redundant matter, it is supposed that something sound will be left, and that it is only necessary to purify it — to eliminate the improper matter.^ A rule is given in a former chapter^ that " no fact should be stated which is not pertinent, and whose state- ment is not necessary," to which the reader is referred. Matter which has no connection with the cause of action is irrelevant, while the statement of evidential facts is unnecessary. The latter may be very pertinent, they may all relate to the case ; yet their statement is uncalled for, and violates as well the rule against pleading evidence, and, therefore, embodies redundant matter. Also, as has been seen, statements are sometimes made which, when left in a pleading, may be disregarded by the court, and are called surplusage. These, also, embody redundant mat- ter, and should be stricken out on motion. But there are other redundances in pleading, not involved in the statement of irrele- vant or unnecessary facts. I refer to the repetition, or unneces- sary repetition, forbidden by the Code, and also to the improper commingling in one statement of facts showing more than one cause of action. As heretofore seen,^ the statutory requirement that the facts constituting the cause of action shall be stated without repetition — or, as in some Codes, without unnecessary repetition — is held in some of the states to forbid the statement of the same cause of action in more than one count, at least, unless circumstances make it important to the pleader that more than one be permitted. Where it is so held, it is evident that every statement after the first is redundant, and should be stricken out as containing redundant matter.* And so when facts showing more than one cause of action are embodied in one ' Harlow v. Hamilton, 6 How. Pr. 475. ' Chapter xiii, rule 6. » Ante, I 119, 120. * See cases cited in J 119. 508 CH. XX. J EEMEDIES FOR DEFECTIVE PLEADING. § 423 stiiteraeut. It should contain but one ; if more than one cause of action appear, the pleading is double. Even if the union is permitted, the statute requires that they be separately stated. Hence every statement of a foct which does not pertain to a sin- gle cause of action is redundant ; it is unnecessary for the one cause, and all other causes are intruders, and should be expelled.^ As we have seen,' a demurrer to a petition for misjoinder of causes of action goes to the union itself, and not to the manner of making it ; it will be equally available whether the union which is not permitted be in the same or by separate state- ments ; but a motion goes to the doubleness of the statement, and all matter over and above that which is necessary for the single cause will necessarily be treated as redundant, whether it embody a cause of action which is permitted to be united or not. Not only will additional counts for the same cause, and additional causes in the same count, be ordinarily treated as redundant matter, but within the count " a needless repetition of material averments is redundancy."^ I have alluded to evi- dential or probative facts, and to the rule against pleading them. The violation of this rule can only be met by a motion to strike ^ As to the necessity of meeting the improper intermingling of causes of action in one count by motion, when they could have been united if properly stated, see Lattin v. McCarty, 8 Abb. Pr. 225; Harsen i;. Bayaud, 5 Duer, 656; Sentinel Co. v. Thompson, 38 Wis. 489 ; Freer v. Denton, 61 N. Y. 492 ; Swords v. Eiiss, 13 Iowa, 603 ; and ante, ^ 412 n. The form of the motion is not generally indicated in the opinion, and it would not be deemed material in the appellate courts, if the end had been secured — to wit, the purification of the pleading. In Nichol v. Alexander, 28 Wis. 118, in holding a motion to be the proper remedy for an improper intermingling of more than one cause of action in the count, Lyon, J., cited Baxter v. The State, 9 Wis. 38, where the remedy was said to be "a motion to strike out," and says the language was in- tended to be understood as "a motion to make the complaint more definite and cer- tain by striking out all but one cause of action." In two cases in Missouri it was said to be "a motion to require the party to elect one, and strike out the remaining causes of action thus improperly joined in one count." Otis v. Mechanics' Bank, 35 Mo. 128 ; Stevenson v. Judy, 49 Mo. 227. In Booher v. Goldsborough, 44 Ind. 499, citing Hendry ». Hendry, 32 Ind. 349, Buskirk, J., says that when a pleading is double, the remedy is by motion to compel the party to separate the causes of action, or de- fense, into paragraphs, and number them, and that such a defect will not be reached by a motion to strike out ; but where matter is immaterial as to the one cause of action, and does not amount to a statement of an additional one, it should be stricken out. 2 Ante, ? 412. ' Duer, J., in Bowman v. Sheldon, 5 Sandf. 657. 509 § 423 • OF PLEADINGS. [PART II. out the facts thus improperly stated. Thus, in an application to cancel a deed for fraud in concealing from the plaintiff portions of the deed which had been signed, statements of the defendant's profession, the manner of making the plaintiff's acquaintance, etc., are, at best, but stating evidence, and should be stricken out.-' Pleadings can no longer be used as an examination of wit- nesses, even where the answer is required to be sworn to ; and, although in actions for equitable relief the statement will ordi- narily be more full than in a proceeding for money alone, the same rule is observed as to stating mere evidence.^ A plaintiff in ejectment, after stating his title — as, holding the land in fee — described briefly the deed and sheriff's sale under which he held it, and this description was held to be unnecessary, and was stricken out on motion.' ^ "Wooden v. Strew, 10 How. Pr. 48. ^ Wooden v. Strew, supra; Wooden v. Waffle, 6 How. Pr. 145. ^ Warner v. Nelligar, 12 How. Pr. 402. The word "duly" is often used in plead- ing as describing an act, and if no other description is given, it is but a conclusion of law, and the description is radically defective. But it often precedes a sufficient description, and should be stricken out as redundant. Miles v. McDermott, 81 Cal. 271. In this case it was said that a certain board " duly made and passed a resolu- tion," etc. The court held that the making and passing the resolution was the fact, and that the word " duly " could have been rejected on motion ; but as no motion had been made, it was treated as surplusage. Courts have sometimes curtailed the right to object to a pleading upon the ground that some of its allegations are irrelevant and redundant, and have refused to interfere, unless it appear that the party raising the objection will be injured by being compelled to meet the objectionable statements. I find the following language in the opinion in Molony v. Dows, 15 How. Pr. 261 : "A party has _a right to set forth his cause of action fully, and unless he burdens his pleading with matters that are totally irrelevant, impertinent, or imposes upon the defendant the necessity of specifically traversing a great number of facts which are more properly evidence in support of a cause of action than substantive averments to show that a cause of action exists, the defendant cannot be regarded as aggrieved thereby. * * * Nor is a court to be taxed with the labor and trouble of minutely Inspecting a pleading upon summary motion of this kind, for the purpose of ascertain- ing whether averments are or are not irrelevant, unless in cases where it is absolutely incumbent upon the party to get rid of them, to enable him to frame a proper answer." This is quoted approvingly in Gate v. G-ilman, 41 Iowa, 530, and the court refused to reverse a judgment in a case where the trial court had overruled a motion to strike out a paragraph containing evidential facts provable under the previous denial, and upon the ground that, although the additional paragraph was unnecessary, the plaintiff was not injured by it. This is a very good reason why the appellate court should not interfere — because judgments should never be reversed for errors below, unless the party complaining of them was or might have been injured by such errors ; but it is believed that a trial court, upon proper motion, and when the plead- 510 CH. XX.] REMEDIES FOR DEFECTIVE PLEADING. § 424 § 424. Continued — Answers. — Duplicity in answers is also a xice to be met by motion. The statute, while permitting sev- eral defenses and several counter-claims, requires them to be separately- stated, and, if a single statement contains one defense, followed by allegations that will constitute another, the latter should be stricken out ; ^ and if the additional matter is not suf- ficient to constitute a defense, though the answer is not double, yet such matter is redundant, and should be rejected.^ And so, if one improperly embody in one statement matter of defense with matter that constitutes a counter-claim, the remedy is by motion, and not by demurrer.^ It is always held to be bad plead- ing to state facts which amount to a denial merely, and when a defendant shall follow a denial by such a statement, the latter will be stricken out as redundant.* In respect to remedies for defects in pleading in this connection, and when considering whether an answer should be rejected for irrelevancy, Allen, J.,* quotes, approvinglj'', the following language, used in another case :^ "If an answer, otherwise good, is loaded with unneces- sary and redundant matters, the plaintiff's counsel should move, under section 160,' to have such matters expunged. If doubts are entertained as to the sufficiency in law of the answer, and the opinion of the court is desired, it must be obtained by demurrer. If, however, any defense is palpably insufficient, a motion for ing contains facts clearly iiTelevant, or, if relevant, when their statement is uncalled for, and the matter is redundant, will not, in general, hesitate to strike out such mat- ter, without troubling itself with inquiries as to the interest the objector has in seeking a purification of the pleading. 1 Johnson v. The Orawfordsville, Frankfort, Kokomo & Ft Wayne K. Co., 11 Ind. 280. 2 Booher v. Goldsborough, 44 Ind. 490. s Kinney v. Miller, 25 Mo. 576. The demurrrer, says Eichardson, J., would go to the whole answer or statement, while it cannot operate on that part of it which is in- tended as a counter-claim. * Sparks v. Heritage, 45 Ind. 66 ; Allen v. Randolph, 48 Ind. 496. Although a mo- tion to strike out is the proper practice, it is not error to sustain a demurrer to the special paragraphs, as the eflTect is the same. Ohio & Mississippi R. Co. o. Hember- ger, 43 Ind. 462 ; Chicago, Cincinnati & Louisville R. Co. o. West, 37 Ind. 211, and other Indiana cases. 6 Littlejohn v. Greeley, 13 Abb. Pr. 311. » By Barendo, J., in Nichols v. Jones, 6 How. Pr. 355. 1 Code Civ. Proc. 1876, gg 545, 546. 511 § 425 OF PLEADINGS. [PAET II. judgment on the ground of frivolousness is the proper course ; and, if the matters of defense ciin be shown to be clearly false, amotion to strike out, as sham, will reach the end. These four modes will cure all defects in an answer." To this he adds : "This appears to me a reasonable construction of the Code, with, perhaps, this qualification: that if an answer alleges mat- ter, either as a total or partial defense, palpably foreign, inap- plicable, and impertinent to the cause of action, or frivolous, it might be stricken out as irrelevant. But the irrelevancy or frivolousness must be palpable and clear, and not require argu- ment to establish it. If a question is to be presented for argu- ment, and requiring consideration, it should be done by demur- rer." Neither of the learned judges could have intended to in- clude the important remedy for uncertainty, to be next consid- ered. I have spoken of the rule against pleading evidential or probative facts, and it applies as well to answers and special re- plies as to the petition. In an early case,^ Selden, J., in regard to an answer setting up fraud as a defense to a trespass, the pleader going into a minute history of the transactions between the parties in regard to the property, stated, at length, the view that has been universally taken. He spoke of the rules of plead- ing in the civil-law practice, and also in equity, in both of which evidence was allowed to be pleaded, and showed that under the Code neither was followed, but rather the spirit of the common- law system, and sustained a motion to strike out the mere evi- dential facts contained in the answer. In following the general requirement — that a motion must be specific in its object and certain in its application — the improper matter in a pleading to be stricken out must be designated with absolute certainty, either by recapitulating the words, or by giving the words at the beginning and at the close of the sentence or sentences to be re- jected.^ § 425. Uncertainty. — The Codes of New York, Ohio, In- diana, Wisconsin, Missouri, South Carolina, North Carolina, Florida, Iowa, Kansas, Nebraska, Minnesota, and Oregon ex- 1 Knowles v. Gee, 8 Barb. 300. » O'Connor v. Koch, 56 Mo. 253 ; Pearce v. Mclntyre, 29 Mo. 423. 512 CH. XX. J KBMEDIES FOR DEFECTIVE PLEADING. § 425 pressly provide for the reformation of indefinite or uncertain pleading.! The phraseology in all the states is not precisely the same, but the prevailing one is as follows. After providing for striking out irrelevant and redundant matter, the section adds : " When the allegations or denials of a pleading are so indefinite or uncertain that the precise nature of the charge or denial is not apparent [and when they fail in any other respect to conform to the requirements of the law. — Missouri], the court may require the pleading to be made definite and certain [and otherwise to conform to the law. — Missouri] by amendment." In Minnesota the clause authorizes the court to strike out the defective pleading, on motion, or to require it to be amended ; but no authority is given elsewhere to strike it out until an opportunity had been given to make it definite and certain. In California,'^ Colorado,' and Nevada,* " that the complaint is ambiguous, unintelligible, or uncertain," is made a seventh ground of demurrer; and in Kentucky and Arkansas I find no specific provision to meet such a fault.* It should be borne in mind — and this will help to reconcile conflicting decisions and dicta — that a pleading may be so uncertain and indefinite as to be subject to correction on motion, and still be good on demurrer. The usual ground upon > Code Proc. K T., § 160; Code Civ. Proo. N". T. 1876, H 545, 546; Code Civ. Proc. OWo, ? 118; Code Civ. Proc. Ind., ? 90; Eev. Stat. Wis., ch. 125, g 22; Wag. Stat. Mo. 1018, ? 20; Code Proc. S. C, ? 183; Code Civ. Proc. N. Q, ? 120; Code Civ. Proc. Pla., ^ 110; Code Iowa 1873, I 2720, first clause; Code Civ. Proc. Kan., § 119; Code Civ. Proc. Neb., ? 126; Code Proc. Minn., g 94; Code Civ. Proo. Oreg., I 84. = Code Civ. Proc. Cal. 1874, J 430. » Code Civ. Proc. Col,, '§ 51. * Comp. Laws Nev. 1873, § 1103. s Instead of the comprehensive provision as above given, and the provision imme- diately preceding, embracing irrelevant and redundant matter, both embraced in section 160 of the old Code, the new Code of New York substitutes " a scheme for a, summary remedy, by exception, for faults of pleading, consisting of irrelevant, re- dundant, or scandalous matter, indefinite or uncertain allegations or denials, or any other defect, a remedy for which is not elsewhere expressly provided. They super- sede Code of Procedure, section 160," continues the report explanatory of the new Code, "and, in connection with the provisions relating to demurrer, provide a certain and adequate remedy for any defect in pleading, the want of which has been a prin- cipal cause of much loose and uncertain pleading." The changes, however, pertain to the practice which is peculiar to New York, and still leave the ground of the objection for irrelevancy, redundancy, indeflniteness, and uncertainty the same as before. 513 § 425 or PLEADINGS. [part II. which the demurrer is based is that it does not state facts sufficient to constitute a cause of action, or defense, as the case may be ; and, in passing upon the demurrer, the court will only inquire whether it can gather from the pleading the requisite facts, how- ever loosely or defectively stated. To be subject to demurrer, it " must present defects so substantial in their nature, and so fatal in their character, as to authorize the court to say — taking all the facts to be admitted — that they furnish no cause of action whatever."^ The objection, then, to the pleading on account of this uncertainty and indefiniteness is said to be waived by demurrer — that is, it cannot be raised by a demurrer. Nor will the objector be permitted to raise the question upon the trial by objecting to the introduction of evidence ; it is too late after having gone to trial ;^ nor can it, for the first time, be raised upon error.* We have seen that when the pleading contains statements of evidential facts, those statements may ordinarily be stricken out as redundant. This is true when there is any- thing substantial left — when the pleading, after the redundant matter is so rejected, contains a sufficient statement to constitute a cause of action, or a defense of new matter, or a denial. But it may happen that no other substantial pleading will be left. The statement, in such case, of evidential facts is not redundant, for without it the pleading falls ; neither is it supposed to be frivolous, or irrelevant, or sham, for the facts pertain to the case, and are pleaded in good faith ; the pleading, therefore, cannot be rejected. Neither, if this be the only fault, will a demurrer lie, for it is not a defect of substance; a cause of action, or a defense, or a traverse, is shown, though in an argumentative way. ' Gridley, J., in Kichards v. Edict, 17 Barb. 260. In the following cases ademurrer was overruled, the court holding that the alleged incompleteness in the allegations could only he remedied by motion to make the pleading more definite : Village of Warren v. Phillips, 30 Barb. 646 ; Hale v. Omaha National Bank, 49 N. T. 626 ; Spies V. Accessory Transit Co., 5 Duer, 662 ; Olcott v. Carroll, 39 N. Y. 436 ; Lewis v. Coulter, 10 Ohio St 451 ; Stoutenb'urg v. Lybrand, 13 Ohio St. 228 ; Clay v. Edgerton, 19 Ohio St. 549; Snowden v. Wilas, 19 Ind. 10; Eultz v. Wycoff, 25 Ind. 321; Lewis v. Edwards, 44 Ind. 338 ; Prindle v. Caruthers, 15 N. T. 425 ; Kiemer v. Johnke, 37 Wis. 258 ; Mills v. Eice, 3 Neb. 76 ; Schrock v. Cleveland, 29 Ohio St. 499. 2 Kerr v. Hays, 35 N. Y. 331 ; Greenfield v. Massachusetts Mutual Life Ins. Co., 47 N. T. 430 ; Keady v. Sommer, 37 Wis. 265. 3 Trustees v. Odlin, 8 Ohio St. 293 ; Hewitt v. Brown, 21 Minn. 163. 514 CH. XX. j EEIMEDIES FOR DEFECTIVE PLEADING. § 427 The only remedy, then, must be to move for an order to make the pleading more definite and certain — an efficient remedy for slovenly, ambiguous, and argumentative statements. § 426. In respect to filing the Writing sued on. — The stat- ute, as we have seen, specifically names the vices for which a demurrer or answer in abatement will lie, and also points out various defects to be remedied by motion. While a demurrer will lie for no other cause, a motion is not so limited, and may be said to be the reserved instrument for attacking almost all irreg- ularities not thus named among the grounds of demurrer. The latter is only resorted to where the error appears upon the rec- ord, while a motion is not thus confined. Thus, in Indiana, the statute requires, when an instrument of writing is the basis of the action, that the original, or a copy, be filed with the com- plaint, and made part of the record. The omission to file it shows a defect in the record, and the pleading is, therefore, de- murrable.^ But in Missouri it is made necessary to file the original instrument, while it is not made part of the record. A demurrer, therefore, will not lie unless the pleading gives an ex- cuse for not having filed it which is not good under the statute ; ^ the remedy is by motion to dismiss because of the omission, or to require the party to comply with the statute and file the in- strument.^ But, in either case, if the opposite party plead to the merits, and go to trial, the objection is waived.* §427. Misnomer. — In common-law pleading, misnomer, whether of plaintiff or defendant, was pleadable in abatement, even when the mistake was in the name of a corporation plaint- iff,5 and was no ground for setting aside the proceedings, or for arrestino- the judgment." The plea in abatement for this cause was abolished in England by the Procedure Act of 3 and 4 Will- iam IV., chapter 42, section 11, and a summary process for cor- 1 Westfall V. Stark, 24 Ind. 377 ; Eigenmann v. Baokof, 56 Ind. 594. 2 Hook V Murdock, 38 Mo. 224 ; Burdsal v. Davies, 58 Mo. 138. 3 Kothwell V. Morgan, 37 Mo. 107 ; The Hannibal & St. Joseph K. Co. v. Knudson, 62 Mo. 569. * Birrlsal V. Davies, supra. 5 1 Chitty's PL 451 ; Gould's PL, ch. 5, ?? 69-84, 6 1 Chitty's PL 248. 515 § 427 OF PLEADINGS. [PAET II. recting the error substituted. In our Codes of Procedure, while a defect of parties and a want of capacity to sue are specified among the grounds of demurrer and of dilatory answers, misnomer is not named ; nor can it be included among any of the objec- tions which are named, unless the pleading should show that the written contract in suit was not in defendant's name, and there is no allegation that he executed it by the name which appears in the instrument. In such case a demurrer would lie, because the pleading does not state facts sufficient to constitute a cause of action against the defendant. The remedy for misnomer has not been often considered, but, in the few cases which I find, there is a singular want of harmony in the views of the courts, although it is universally held that if the defendant pleads to the merits the objection is waived, unless an instrument in writing, offered in evidence, shows a variance. In a case in New York,' a private banker had been in the habit of doing business in a corporate name, and had sued and obtained judgment in such name. The appellate court held that the objection could not have been taken by demurrer or answer, had the attempt to do so been made, and that, having gone to trial on the merits, the judgment was not erroneous. Judges Denio and Comstock give separate opinions, both agreeing in the result, and both treating it as a case of misnomer. Judge Denio thinks that, under section 173 of the Code, as then numbered, authorizing amendments, the court should, at any stage of proceedings, when attention was called to the defect, before or after judgment, have amended the complaint, without terms, by correcting the mistake in the name of the plaintiff; but that the failure to do so was not error, in- asmuch as the court is required to disregard any error or defect which shall not affect the substantial rights of the adverse party. Judge Comstock agrees that the misnomer is an irregularity which could not be the subject of demurrer or answer, and that the objection was waived by taking issue on the merits. In an early case in the Supreme Court,** the court held that an objec- tion for misnomer of defendant could not be raised by demurrer 1 Bank of Havana v. Magee, 20 N. T. 355. ' Elliott V. Hart, 7 How. Pr. 25 ; followed in Dole v. Mauley, 11 How. Pr. 138 ; but disapproved in Miller v, Stettiner, 22 How. Pr. 518, and a plea in abatement con- sidered the true remedy. 616 CH. XX. j REMEDIES FOE DEFECTIVE PLEADING. § 427 or answer, but thought that an old rule of court was in force author- izing the court, before appearance, to set aside the proceedings. In a more recent case, in the Court of Appeals,^ the plaintiff, a married woman, had sued in her maiden name, and it was held that, after issue and trial upon the merits, the objection was waived. Grover, J., however, said that "the only mode of presenting such a defense (misnomer) is, under the Code, by- answer." The Supreme Court of Indiana treats a misnomer, by the omission of, or mistake in, the plaintiff's christian name, as still pleadable in abatement ; ^ and in Ohio, an answer that the contract in suit was made with defendants as a corporation ; that they were a body corporate, etc., was held to present a good de- fense.' It is thus seen that nothing seems to be settled upon authority, except that the objection for misnomer is waived by answering to the merits. Whether the objection for misnomer can be made by answer may be affected by another question, to wit : Are the dilatory answers named in the statute all of that nature that are now permitted? Misnomer is not named, and, if so, the question cannot be raised in this way. That a demurrer will not lie for any other defect is universally conceded, and the same defects are named as grounds of objection by dilatory answer.* It is claimed, on the one hand, that the intention was to specify all thus to be taken advantage of, either by demurrer or answer ; all, the issues concerning which, if not apparent, should be submitted to a jury. Take, for example, misnomer. At common law, upon issue joined, the jury passed upon the ques- tion, and judgment was entered accordingly. This mode of in- quiry, with its grave consequences, has, as we have seen, been abolished in England, and upon one hypothesis, also, by the the Code. The conclusion thus arrived at is, that the Legis- lature intended to take from the jury the consideration of all defects except those named ; that the correction of all others 1 Traver v. Eighth Avenue E. Co., 3 Keyes, 497 ; 6 Abb. Pr. (n. s.) 46. ' Peden's Admr. v. King, 30 Ind. 181 ; Sinton v. Steamboat E. E- Eoberts, 46 Ind. 478. s Eidenour v. Mayo, 29 Ohio St. 138. * In Indiana the statute expressly provides that a demurrer shall lie for no other cause, and the Ohio, Kansas, and Nebraska Codes, by using the word "only," in effect, do the same. 517 § 428 OP PLEADINGS. [PAET II, should be left to the court alone. Questions not involved in regular issues of law or of fact are brought before the trial court by motion, and that is claimed to be the proper mode of raising the objection for misnomer. The statute expressly provides for the correction of errors in the names of the parties in any stage of the proceedings, and an application for such correction would be a motion, and would, necessarily, like the old plea in abatement, give the true name.^ On the other hand, the assumption that it was designed that the statute should include, in the provision referred to, all dilatory answers, and that none other are allowed, is claimed to be wholly gratuitous. Nothing is said except that certain objections, if they cannot be taken by demurrer, may be by answer. The subject of answers is not the one under consideration, and no intimation is given that other defenses of which the defendant may avail himself, and which do not go to the merits, may not also be made by answer. A defendant may be interested in the fact that the plaintiff is not the real party in interest. A chose in action may have been assigned, and so as to transfer the obligation to the assignee, and, if sued by the assignor, an answer setting up the assign- ment as a defense may be essential to his protection. This he may do,^ and yet the objection — that the plaintiff is not the real party in interest — is not one of the grounds of demur- rer. I infer, then, if a motion is entertained to correct the najne of a party, it is not because no dilatory defense can be made by answer except those named in the statute, but because it may be considered a more suitable remedy. 4. Amendments. § 428. Amendments discretionary. — I refer not in this con- nection to formal amendments, the omission of which will not arrest or reverse a judgment — of those I shall speak in the next chapter — but of substantial changes in the pleadings which a ' It should "be noted that a defendant sued by a wrong name is not bound to appear ; the court does not acquire jurisdiction, and the judgment and execution is void ; and, arguendo, the amendment cannot be made unless he waives the Irregularity by ap- pearing. Pamham v. Hildreth, 32 Barb. 277; Hoffman jj. Pish, 18 Abb. Pr. 76. * See, ante, J 329, and cases cited in note. 618 CH. XX. J REMEDIES FOB DEFECTIVE PLEADING. § 429 party may find it necessary to make, "Without referring specific- ally to the statutes of the difierent states, they all provide or im- ply a right to amend after a demurrer without leave of court, for the purpose of correcting the error which is the subject of the demurrer, and also permit an amendment without leave, before the filing of a responsive pleading by the opposite party. Ordi- narily, however, amendments can only be made by leave of the court, and that implies a disdretion in granting or refusing the leave. This, however, is not an arbitrary discretion, but it must be controlled by some rules, and they are not changed in sub- stance from those which were followed before the adoption of the new system. § 429. Liimitation upon the Power of Amendment. — It would be impossible to say when, to describe all the occasions in regard to which, amendments should be allowed ; it is easier to indicate some cases where they are not allowable. In some of the states the statute expressly limits the power of the court ;^ in all, a limitation is understood. The general language of the statute embodies — and, perhaps, makes a little more specific — the powers that had been before acted upon by the courts, and, except when the decision was controlled by the mere forms of ac- tion, the old authorities may still be looked to for guidance.'' Under the common-law system, an amendment changing the form of the action was sometimes allowed and sometimes not ; it seems to have been altogether discretionary,* but an amendment by the plaintiff, so as to state an entirely new cause of action , was not allowed, either in actions at law* or in suits in equity." A party, under the privilege of amending, was not permitted to introduce matter which would constitute a new bill.* It is com- monly said that the plaintiff must have something to amend by ; that the writ or previous pleading must show that the cause of 1 "Wag. Stat. Mo., art. 8, ? 23. » Leetch v. Atlantic Mutual Ins. Co., 4 Daly, 518. « 1 cutty's PI. 198 ; Little v. Morgan, 31 N. H. 499. * Milliken v. Whitehouse, 49 Me. 527; Cooper v. Waldron, 50 Me. 80; Sumner v. Brown, 34 Vt. 194 ; Steffy v. Carpenter, 37 Pa. St. 41. 5 Walden v. Bodley, 14 Pet. 156 ; Snead v. McCouU, 12 How. 407. • Verplank v. The Mercantile Ins. Co., 1 Edw. Ch. 46 ; Carey v. Smith, 11 Geo. 539. 519 § 430 OP PLEADINGS. [PAET H. action presented in the new pleading is the same as that upon which the action was originally based. But courts will be " lib- eral in allowing amendments when the cause of action is not changed ;" ' " should be liberal in allowing amendments, to the end that cases may be fully and fairly presented on their merits." '^ The Supreme Court of Wisconsin, in limiting amendments, has been somewhat strict in construing the term " cause of action." In an action, however, for work ahd labor, an amendment was allowed seeking to charge a lien upon property ; ^ but in an action to recover damages for flowing the plaintifi''s land, the plaintiff was not allowed to amend so as to charge the defendant, under the statute, for appropriating the land to his use ; * nor, in an action for the wrongful conversion of money, was he per- mitted to amend by striking out the words " and converted the same to his own use," thus making the action sound in con- tract.^ § 430. Continued — As to the Defense. — The same limita- tion upon the power of amendment cannot exist in regard to the defense. It more frequently happens that a defendant seeks, by amending his answer, to set up a defense entirely new than to perfect the statement of one already pleaded ; and the plaint- ifi''s rights are not affected by permitting him to do so. "A plaintiff cannot be said to have a right to deprive a defendant of the privilege of setting up a defense which, from any excusable cause, he has neglected to do, or has done in such a manner as to make it unavailable ; and when a judge, in the exercise of his discretion, grants a defendant this privilege, he does not thereby affect the substantial right of the plaintiff. It deprives him of nothing. * * * Neither can an order allowing a defendant to set up an additional defense be said to involve the merits. The cause of action on which the plaintiff relies remains as he set ' Napton, J., in Lottman u. Baruett, 62 Mo. 159. ' Belcher, J., in Hayden v. Hayden, 46 Cal. 332. 2 Lackiier v. Turnbull, 7 Wis. 105. * Newton ». Allis, 12 Wis. 378. * Board of Supervisors u. Decker, 34 Wis. 878. It is believed, however, that in most of the Code states this amendment would be permitted. See, also, Sweet v, Mitchell, 15 Wis. 641 ; Larkin v. Noonan, 19 Wis. 82 ; Stevens v. Brooks, 23 Wis. 196. 520 CH. XX. ] EEMEDIES FOE DEFECTIVE PLEADING. § 430 it forth in his complaint, and whatever were its merits when ho brought the action, they continue the same." ^ And so courts are more liberal towards defendants in regard to the time when amendments should be allowed, and for the reason that the plaintiff may suffer a nonsuit and briug a new suit, while the defendant would forever lose the benefit of his defense. And it was so, and for the same reason, at common law.^ But the right of amendment was never an absolute one. It was limited by considerations affecting the rights of the plaintiff and the due administration of law. The application was not allowed for pur- poses of delay, nor unless made in good faith and " in furtherance of justice." In the equity practice the defendant was allowed to amend by stating a newly-discovered fact, and sometimes even pending the hearing,' yet an amendment was not allowed to enable a defendant to introduce new matter known to him at the filing of the original answer,* nor after a long period has elapsed.^ In the equity practice the answer was used as evidence in the cause, and, therefore, a reason existed for caution in allowing chano-es in the answer that does not exist in Code isractice. But, otherwise, we find no change in the considerations that should control the discretion of the court. The defendant, in applying for leave to amend, must give some reason for his omissions — must disclose the amendment he would make, and must show perfect good faith in his application." If, having full knowledge of his defense, he neglects to plead it, or having pleaded, with- draws it, especially when he reaps some benefit from the omis- sion or withdrawal, he will not be permitted to replead it;' nor will one be permitted upon the trial to amend by denying a fact admitted in the answer;^ nor, upon a second trial, after a new 1 Daly, F. J., in Bowman v. De Peyster, 2 Daly, 203. In this case the judge ex- pressed the opinion that an order allowing an amendment to an answer was so In the discretion of the trial court as not to be appealable, although appeals had been allowed. 2 Waters v. Bovell, 1 Wils. 223 ; Tidd's Pr. 708. 8 Story's Eq. PI., 2? 897-905. * Howe V. Pvussell, 36 Me. 115 ; Campion v. Kille, 14 N. J. Ch. 229. 6 Goodwin v. McCJehee, 15 Ala. 232. • Allen V. Ranson, 44 Mo. 263; Gale v. Foss, 47 Mo. 276. ' Clark V. Spencer, 14 Kan. 398. 8 Harrison's Admr. v. Hastings, 28 Mo. 346. 521 § 431 OF PLEADINGS. [PAET II. trial has been granted by the Supreme Court ; ^ and a defendant in trespass, after having denied generally, and after the jury had been impaneled, was not allowed to amend his answer by pleading accord and satisfaction.* Pending the trial of a cause, amendments changing the nature of the issues will certainly not be allowed, unless for very good cause ; but other amendments, either those merely formal or such as do not require new prepa- ration or evidence on the other side, will be liberally allowed — as, when a new party should be added,' or a description of the character in which the plaintiff sues.* § 431. As to unconscionable Defenses. — The rule is made statutory that courts, in allowing amendments, when it is discre- tionary, will exercise their discretion in furtherance of justice. This was done, before the adoption of the Code, by the exclu- sion of what were called unconscionable — hard, unjust — de- fenses, as between the parties, although legal. Thus, though one may plead the statute of limitations in an action upon con- tract, yet if he had pleaded to the merits, or answered under the Code, he was not permitted to interpose the statute by way of amendment on leave.' More especially was he denied permis- sion to amend by pleading usury in those states where it worked a forfeiture of the principal.* But when, under the statute, a party has a right to amend without leave of court, he may amend by setting up an imconscionable defense — as, the statute of limitations ;' and, when there has been an accidental default, 1 Shanagel v. Eeay, 47 Cal. 608. ' Shernecker v. Thein, 11 Wis. 556. The decision was placed chiefly upon the ground that the defense had been all along well known to the defendant, and that the plaintiff would be taken by surprise. Had, however, some honest reason been given for not having before pleaded it, the amendment would, doubtless, have been allowed. ' Wellman v. DiSmukes, 42 Mo. 101. * Harkness v. Julian, 53 Mo. 238. ^ Sagory v. The New York & New Haven E. Co., 21 How. Pr. 455 ; Coit v. Skin- ner, 7 Cow. 401 ; Jackson v. Varick, 2 "Wend. 294, applied to a demand for mesne profits, with the remark that the statute of limitations is a strict defense, and if the party lets it slip the court will not relieve him. Wolcott v. McParlan, 6 Hill, 227. « Dole V. Northrop, 19 Wis. 249; The Utica Ins. Co. ■;;. Scott, 6 Cow. 606; Lovett V. Cowman, 6 Hill, 223. 1 Macqueen v. Babcock, 13 Abb. Pr. 268. 622 CH. XX. J REMEDIES FOE DEFECTIVE PLEADING. § 431 the court, in permitting the defendant to plead, will not impose a condition that he shall not plead the statute of limitations. ^ There is a disposition on the part of the courts of New York to overrule the earlier decisions upon this subject. A case arose in the Court of Appeals in 1854,^ in which there had been a vari- ance between the evidence and the answer, setting up usury as a defense. The court allowed an amendment to the answer, in order to make it conform to the evidence, and expressly repudi- ated the right to make any distinction between the defense of usury and other defenses. This case was followed in the Su- preme Court in 1867 f and in 1877,* Brady, J., says : " What- ever may have been the earlier doctrine on the subject of what were called unconscionable defenses, it no longer prevails. The rules which govern amendments are now to be regarded without reference to the character of the defense." These later decisions must be considered as controlling in New York, though the courts in other states will, I think, hesitate before conforming to them. When the statute gives a party a right to amend, this right cannot be controlled by the character of his proposed defense, if it be a legal one. But when a discretion is given to the court in allowing amendments by setting up new defenses, or in conforming the pleading to the evidence, that discretion should be controlled by equitable considerations. Usury was a defense in equity as well as at law ; yet if a defendant could not avail himself of such defense without invoking the equity powers of a court, the court always refused its aid, unless the applicant offered to do equity — that is, pay what was lawfully due." When leave to amend can be given or refused, the court cannot well help considering the effect of granting or withholding the leave — whether to grant it is in furtherance of justice, or 1 Gourlay v. Hutton, 10 "Wend. 595 ; referred to approvingly in Lovett v. Cowman, 6 Hill, 223 ; Bank of Kinderhook v. Gifibrd, 40 Barb. 659, as to a defense that the note in suit was given for money won at play. ' Catlin V. Gunter, 11 N. T. 368. ' Union National Bank of Troy v. Bassett, 3 Ahb. Pr. [n. s.] 859. There were peculiar equitable considerations in this case in favor of the defendant. * Bamett v. Meyer, 17 N. T. Sup. Ot. 109. See, also, Gilchrist v. Gilchrist, 44 How. Pr. 317. 6 Beach v. Tulton Bank, 3 Wend. 573; Pulton Bank v. Beach, 1 Paige, 429. 523 § 431 OF PLEADINGS. [PAET II. whether it will enable one to avoid the payment of a just debt. In an early case in California, I find the following pertinent remarks in regard to allowing amendments to let in an answer setting up the statute of limitations:^ " The object of the stat- ute in reference to amendments is unquestionably the further- ance of justice. So far as that goes, courts ought to be dis- posed to treat such applications favorably. In most instances, it is a matter of course that they should be granted. But courts have not been inclined to look very kindly upon statutes of lim- itation, except when they were used as the instruments of jus- tice, and not of strategy. For example, there is a wide distinc- tion between the protection of minor heirs by such means and the facility, on the other hand, afforded to the wary and skillful of escaping from the jDayment of an equitable demand. In the first case, the whole scope, force, and effect should be given to the law ; in the latter, it would only be reluctantly allowed its course for the sole end of maintaining it as a general rule of con- duct. * * * If the statute of limitations had been pleaded in the first instance, there would have been no ground to have objected to it, and the court would have had no legal discretion to have ordered it to be stricken out. But, having been omitted when the application to amend was made, the first question cer- tainly presented was. Will it be in the furtherance of justice? Such is the language of the statute ; such, clearly, was the intent of the law. "2 • Cooke V. Spears, 2 Cal. 409, per Anderson, J. ^ See, as to discretion in allowing amendments, and with reference to the statute of limitations. Stout's Admr. v. Stout's Admr., 44 Pa. St. 457. 524 CH. XXI.] DEFECTIVE PLEADING HOW CUBED. § 435 CHAPTER XXI. Defective Pleading — How cured. Section- 435. The Basis of the Doctrine. 436. Defects that are Grounds of Demurrer. 437. Aider by the Pleading of the opposite Party. 438. Intendment after Verdict. 439. Continued. 440. Statutes in aid of defective Pleading. 441. The more specific enumeration of Defects cured. 442. Aider after Verdict, as held under the Codes. § 435. The Basis of the Doctrine. — Courts are established, and the whole law of procedure is adopted, to secure, and only to secure, the ends of justice. Parties are required to state their grievances and defenses on paper, as a guide to inquiry, to avoid the uncertainty and confusion that would arise from verbal and loose statements ; and, that it may be known when a controversy is at an end, parties are required to state them with * distinctness and particularity — with what the law calls certainty. When an action is instituted, or a defense presented, the oppo- site party may insist that the rules of statement, and other rules found necessary or expedient, shall be observed, and may sub- ject his antagonist to the proper penalty for their non-observ- ance. But all matters of this kind should be settled before go- ino- to trial. It by no means follows that, because certain rules of procedure are calculated to secure the ends of justice, all proceedings should be treated as invalid in which they have not been followed. Their obligation upon one party is supposed to be provided for the protection of the other, and if the latter does not seek such protection — if, with their violation before his eyes, he proceeds in the cause as though they had been observed — it would be a very trifling for courts to permit him ^.fterwards to go 525 § 436 OF PLEADINGS. [PART II, back, and stop or vacate the proceedings because of their non- observance. Hence the doctrine of aider — of waiving or curing defects. This doctrine cannot, of course, apply to those which are radical in their character. A party, by not raising the ob- jection, cannot give a court jurisdiction over matters where it is forbidden by law ; nor will a judgment be rendered, or be allowed to stand, when it is clear from the statement of the party that he is not entitled to it. Hence the limitations upon the doc- trine confining it to formal defects. A defeated party, then, or one who, upon the trial, would throw obstructions in the path of his adversary, should consider what questions are still open to him, what omissions or deficiencies have been cured, and what are so substantial as not to sustain a verdict, or as will render a judgment erroneous. In the progress of our inquiries, frequent allusions have been made to defects that have been cured and objections that have been waived, but the importance of the sub- ject demands for it a distinct and fuller consideration. § 436. Defects that are Grrounds of Demurrer. — We have seen that there are certain defects in a petition or complaint which, if they appear upon its face, will support a demurrer. They are expressly named in the statute, in all the Code states, as defects which will authorize a demurrer, and it is also ex- pressly provided that, if these defects do not appear upon the face of the pleading, the objection may be made by answer. In' immediate connection with this provision, the statute declares that, if the objection be not taken either by demurrer or by answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the pleading does not state facts sufiicient to constitute a cause of action. The objections which can be raised by demurrer have been already considered ; ^ the statute is clear and unambiguous as to their waiver ; it admits of no construction ; and it would be quite su- perfluous work, and would only incumber the page, to refer to the numerous cases where it has been enforced. There may, 1 Ante, II 405^15. 526 CH. XXI.] DEFECTIVE PLEADING HOW CUBED. § 437 however, be some doubt as to whether, in Iowa, the objection for want of jurisdiction over the subject of the action is, in fact, waived. The language of its statute is as follows: "Where any of the matters enumerated as grounds of demurrer do not appear on the face of the petition, the objection may be taken by answer. If no such objection is taken, it shall be deemed waived. If the facts stated in the petition do not entitle the plaintiif to any relief whatever, advantage may be taken of it by motion in arrest of judgment, before judgment is entered." ^ The exception for want of such jurisdiction is not named ; yet, we should hardly suppose that a court would proceed to render judgment upon a verdict, or proceed at all in the trial of a cause, when the judgment would necessarily be erroneous, or void, for want of jurisdiction over the subject of the litigation. § 437. Alder by the Pleading of the opposite Party. — It was a rule of common-law pleading that an omission to state a material fact, either in the declaration or special plea, might be supplied by the pleading of the opposite party. Mr. Chitty calls it "express aider." ^ Thus, in a suit against a United States marshal for not making the amount of a judgment for custom- house dues, in which he undertook to plead a remission by the secretary of the treasury, it was objected that all the requisite facts, as to the authority, etc., were not set out in the plea, but it was held that the supposed defect was supplied by the replica- tion, which admitted that W. H. C, as secretary, etc., did make and issue said warrants of remission, etc' And, in an old case in Massachusetts, the omission of a necessary averment that the defendants had mills on and below a certain mill-dam was held to be supplied by a plea admitting that they are seized and in possession of certain mills, etc.* In this case Parker, J., says : "When the defendant chooses to understand the plaintiff's count to contain all the facts essential to his liability, and, in his plea, 'sets out and answers those which have been omitted in the 1 Code Iowa 1873, § 2650. 1 Chitty's PI. 671. 3 United States v. Morris, 10 "Wheat. 248. * Slack V. Lyon, 9 Pick. 62. 527 § 438 OF PLEADINGS. [PAET II. count, SO that the parties go to trial upon a full knowledge of the charge, and the record contahis enough to show the court that all the material facts were in issue, the defendant shall not tread back and trip up the heels of the plaintiff on a defect which he would seem thus purposely to have omitted to notice in the outset of the controversy." In a recent Massachusetts case, being an action for a libel, a defect in the statement by the plaintiff of the application of the libelous matter to him was held to be aided by a concession of such application in the plea.^ There is nothing technical or artificial in this doctrine of express aider, and it continues to be recognized in Code pleadings. Thus, a petition failed to state, as it should have done, that cer- tain parties were accommodation indorsers of a promissory note, but the answer averred the fact and cured the defect;'' and an omission in not stating to whom a promissory note was payable was held to be supplied by the answer.^ So, when the consider- ation of the contract in siiit was not stated in the petition, and the answer set it out, the defect was held to be cured.* The an- swers may set out a contract unknown to the plaintiff, who relied upon other equities, audit is held in Arkansas that the decree may be based upon the answers.* § 438. Intendment after Verdict. — "At common law, when_ anything is omitted in the declaration, though it be matter of substance, if it be such that, without proving it at the trial, the plaintiff could not have had a verdict, and there be a verdict for the plaintiff, such omission shall not arrest the judgment."® Such is the language of the books, and the same language, in substance, is used in some of our statutes.'' But this language is too broad, for it has always been limited, both in England and the United States, to cases where the plaintiff had stated his cause of action defectively or inaccurately, and has never been ' Whittemore v. Ware, 101 Mass. 352. ' Erwin v. Shaffer, 9 Ohio St. 43. ' White V. Joy, 13 N. Y. 83. * Kercheval v. King, 44 Mo. 401. 6 Pindall v. Trevor, 30 Ark. 249. « Tidd's Pr. [* 919]. ' See Wag. Stat, Mo. 1036, I 19. 528 CH. XXI. J DEFECTIVE PLEADING HOW CURED. § 438 held to apply where there had been a total omission to state it — where the statement of some fact essential to the cause of action had been wholly omitted. The rule, with its limitation, was based upon the presumption that all the necessary facts were proved at the trial, which would be "a fair and reasouable in- tendment" in the one case, inasmuch as the evidence of a fact would be the same whether its allegation were complete or im- perfect ; but if its statement had been wholly omitted, it could not be presumed that any evidence had been ottered in regard to it. Hence came the other and better known rule, that " a ver- dict will aid a title defectively set out, but not a defective title — or, in other words, nothing is to be presumed after verdict but what is expressly stated in the declaration, or necessarily implied from the facts which are stated."^ Tiius, the allegation of a promise was necessary in assumpsit, yet any language express- ing or implying the agreement was held to be good after verdict;^ and the total omission of an averment of notice of having performed the condition which was the consideration of the promise sought to be enforced, tiiough a defect, did not invalidate the verdict, as it must, under the issue, have been proved.^ The doctrine is stated with the usual clearness in a note to Saunders' Eeports, as follows:* " Wiien there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by the verdict by the common law ; or, in the phrase often used upon the occasion, such defect is not a.ny jeofail after verdict." As, when in debt for rent by a bargainee of the reversion, the declaration omitted to allege the attornment of the tenant, which ' Tidd's Pr. [* 919], and the numerous cases cited in the English and American notes •where the rule is applied. 2 Avery v. Tyringham, 3 Mass. 160 ; Kingsley v. Bill, 9 Mass. 198, note b. 3 Colt V. Boot, 17 Mass. 229 ; Crocker v. G-ilbert, 9 Cush. 131. * 1 Saund. Kep. [228], note 1. 529 § 438 OF PLEADINGS. [PAET II. was necessary to complete the title of the plaintiff before the statute of 4 Anne, chapter 16, section 9 ; or, when a grant is pleaded of any interest which at common law lay in grant, and could only be made by deed, it is not alleged to be pi&de by deed ; or, when the promise sued on depends upon the prior performance of something by the promisee, and there is no averment of such prior performance ; or, in an action for mali- cious prosecution, there is no allegation that the prosecution is at an end ; in all these instances, and some others, which are given as illustrations, the defects were held to be cured by ver- dict, although they would have been fatal on demurrer or on default. Mr. Chitty^ criticises one or two of these instances, as the presumption, in an action for malicious prosecution, that there was proof that the prosecution was at an end ; for though that fact might be inferred from the verdict alone, yet it does not conform to another rule, that though the matter be not stated in terms, the pleading should contain terms sufficiently general to comprehend it in fair and reasonable intendment. After having given numerous instances where a verdict has aided a defective statement of title, the author goes on to give a few where it has been held not to assist a defective title, or cause of action, made defective by a total omission of a fact material to it, for, in such case, there is no room for presumption that such fact was proved — as, in an action upon a bill of exchange, when demand and notice is necessary, the omission to aver presentment and refusal to pay, or that the defendant had notice of the non-payment ; or, in an action for a libel or a slander, when the words were not in themselves actionable, an omission of averments rendering them so, or connecting the plaintiff with them ; or, charging the words as "in substance," or "to the tenor following," instead of in hoec verba; or, an action by a reversioner for an injury to the premises, without showing how the reversion, as well as the premises, was injured. In these and similar instances there was something more than a defective statement, and judgment was arrested.^ 1 1 Chitty's PI. 680. 2 1 Chitty's PI. 681, 682, 530 CH. XXI. J DEFECTIVE PLEADING HOW CURED. § 439 § 439. Continued. — When it is said that the total omission to state a fact which is material to the plaintiif 's right or the defendant's liability is not cured by verdict, a distinction should be taken between the omission of a fact collateral to the leading- substantive facts and one connected with, and giving effect, as it were, to such principal fact, and which, to save the verdict, is said to be implied. On demurrer the latter omission might, in some cases, be fatal, though generally it would only subject the pleader to a motion to make his statement more certaha ; but if the parties go to trial as though it were stated, and it be of such a nature that its proof must be presumed or the verdict would not have been given, the judgment will not be arrested. This seems to contradict the rule that the allegata and probata must correspond, but it is not treated as a total omission of the main averment, but rather a want of completeness in the statement, or a neo;lect to state some circumstance or some fact connected with — a part of, as it were — or one giving effect to, the main fact — an imperfection, rather than a total omission. Thus, in addition to the instances given in the last section, in an action by the assignee of a promissory note, payable to the payee or bearer, the plaintiff failed to allege the time of the transfer, although it was material as to the right of defense. It should have been shown to have been transferred before due, j'et the omission was cured by verdict.^ And where one was sued alone upon a joint contract, without alleging that his coobligor was dead, it was presumed, after verdict, that the fact of his death was proved or the sole liability would not have been found. ^ The books abound in instances, both of informal statements and of omissions, which are cured by verdict upon the assumption that the material facts have been proved, but enough have been given to show the nat- ure and limitations of the rule. The plaintiff can gain nothing, nor will the defendant lose anything, in consequence of the im- perfect pleadiu^. If all the material facts are not proved, the defendant may ask instructions accordingly, and may make the failure a ground for a motion for a new trial ; and, by a bill of exceptions, he may spread upon the record the evidence which 1 Bond V. Central Bank of Georgia, 2 Ga. 92. 2 Merrick v. Bank of the Metropolis, 8 Gill, 59. 531 ■ § 440 OF PLEADINGS. [PART II. has been actually submitted, and there can be no presumption contrary to the record.^ Courts seldom distinguish between a verdict which is saved by the doctrine of intendment at common law and by the statutes of jeofails ; and, before noting decisions under the Code, I will refer to some statutory provisions. § 440. Statutes In aid of defective Pleading. — Besides the common-law doctrine considered in the last two sections, in order that justice might not fail in consequence of mistakes by the pleaders, various acts of Parliament were passed, providing for the amendment of pleadings, and for curing defects in jDlead- ings, commonly called statutes of jeofails, all of which, in sub- stance, and sometimes in detail, have been adopted in the several states. The following section was contained in the original Code of New York, and is found in every Code state: "The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not aifect the sub- stantial rights of the adverse party ; and no judgment shall be reversed or affected by reason of such error or defect."* In connection with this section, the Codes contain the most liberal provisions in regard to amendments, the leading one, as found in most of them, being in the following language : " The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by addiiig or striking out tlie name of any party ; or, by correcting a mistake in the name of a party, or a mistake in any other respect ; or, by inserting other allegations material to tlie case ; or, when the amendment does not change substan- tially the claim or defense, by conforming the pleading, or pro- ceeding, to the facts proved." This precise phraseology is not ' International Bank «. Franklin County, 65 Mo. 105. ' Code Proc. N. Y., ? 176, substantially embraced in g 723 of the new Code, but preceded in JJ 721-723 with details not in the former Code, and more like the English statutes ; Code Civ. Proc. Ohio, J 138 ; Code Civ. Proc. Ind., ? 101 ; Code Civ. Proc. Cal. 1874, ? 475 ; Comp. Laws Nev. 1873, § 1134 ; Code Proc. Minn., J 112 ; Code Civ. Proc. Kan., i 140; Code Civ. Proc. Neb., § 145; Dig. Ark. 1874, g 4619; Code Iowa 1873, i 2690 ; Code Civ. Proc. N. C, ? 135 ; Code Proc. S. C, § 199 ; Bullitt's Code Ky., ? 134, last sentence; Kev. Stat. Wis., ch. 125, § 40; Code Civ. Proc. Oreg., J 104; Code Civ. Proc. Pla., J 126 ; Wag. Stat. Mo. 1034, ^ 5 ; Code Civ. Proc. Col., J 78. 532 CH. XXI. J DEFECTIVE PLEADING HOW CURED. § 440 found ill the Codes of Indiana, Missouri, California, and Nevada ; while in Ohio, Kentucky, Kansas, and Nebraska, it is supple- mented by the following: "And whenever any proceeding taken by a party fails to conform in any respect to the provisions of this Code, the court may permit the same to be made con- formable thereto by amendment." ^ Other sections are directed to the same end, and in Missonri, the article concerning amend- ments, in addition to its many general provisions, contains a sec- tion enumerating the mistakes, errors, insufficiencies, etc., which shall not be made a ground for arresting or reversing a judg- ment. With an addition of one or two, which were formerly treated as errors of fact, they are the same as have been em- bodied in tlie various English statutes, and the same as were in force before the adoption of the Code.^ The new Code of New York is also more specific in regard to defects to be disregarded, expressly naming most of the matters specified in the old stat- utes ;* but it is not believed that anything is named which is not covered by the general language first above quoted. This gen- eral power of amendment, before or after judgment, with the duty imposed upon the court to disregard errors and defects not affecting the substantial rights of the parties, should be consid- ered together, for the reason that no judgment will be arrested, or reversed, because of any error or defect which is so amenda- ble. It is a sufficient response to the application to say that the defect was amendable.* But a distinction should be made be- tween these defects of form and those which are radical. The power of amendment extends even to pleadings containing the latter class of defects, but it is a very different matter from that which we are now considering. The fact that the words " amend " and " amendment " are used in both cases sometimes confuses new pleaders, and it would be well, perhaps, if the words " correct" and " correction " were used in regard to de- fects of form, or where the defects were matter of substance, i The Kentucky provision is not in hcec verba, but is the same. Bullitt's Code Ky., 2134. 2 See Kev. Stat. Mo. 1845, pp. 827, 828. 3 Code Civ. Proc. N. Y. 1876, ? 721. * Tidd's Pr. [715] ; Robinson v. English, 34 Pa. St. 324 ; Pennsylvania Sfilt Manu- facturing Co. V. Neel, 54 Pa. St. 9. 533 § 441 OF PLEADINGS. , [PAKT II. instead of saying that he shall be permitted to, or shall have leave to, amend his pleading, the permission were to file a new pleading. § 441. The inoi?e specific Enumeration of the Defects covered by the Provisions of the last Section. — I give below the 19th section of article 8 of the Missouri Code, as embrac- ing in detail, and with but slight additions to what had been before enacted both in this country and in England, matters be- lieved to be covered by the general language of the several Codes, as given in the last section. After eighteen sections, per- taining chiefly to amendments, one of which is in such general language, is the following: " When any verdict shall have been rendered in any cause, the judgment thereon shall not be stayed ; nor shall the judgment upon such verdict, nor any judgment a,fter trial or submission, nor any judgment upon confession, 'nihil dicit,' or upon failure to answer,^ nor any judgment upon a writ of inquiry of damages executed thereon, be re- versed, impaired, or in any way affected, by reason of the fol- lowing imperfections, omissions, defects, matters, or things, or any of them, namely: (1) for want of any writ, original or judicial; (2) for any default or defect of process, or for mis- conceiving any process, or for awarding the same to the wrong officer, or for the want of any suggestion for awarding process, or for any insufficient suggestion; (3) for any imijerfect or in- sufficient return of any sherifl" or other officer, or that the name of snch officer is not set to any return actually made by him ; (4) for any variance between the original writ or petition, or either of them; (5) for any misleading, miscontinuance or dis- tinuance, insufficient pleading, jeofail or misjoining issue; (6) for want of any warrant of attorney of either party, except in case of judgment by confession, when such warrant is expressly required by law ; ( 7 ) for any party under twenty-one years of age, having appeared by attorney, if the verdict or judgment be 1 This provision in regard to judgments by default, if it may refer to the ninth sub- division, which follows, would seem to change the law of intendment after verdict, although it is difficult to see how, upon default, a matter can be presumed to have been proved. 534 CH. XXI.] DEFECTIVE PLEADING HOW CURED. § 442 for him, or for any married woman failing to appear by next friend, or for any married woman appearing by attorney, either to prosecute or defend;* (8) for the want of any allegation or averment, on account of which omission a demuri-er could have been maintained ; * ( 9 ) for omitting any allegation or averment, without proving which the triers of the issue ought not to have given such a verdict ; ^ (10) for any mistake in the name of any party or person, or of any sum of money, or in any description of any projDerty, or in reciting or stating any day, month, or year, when the correct name, sum, or description shall have been once rightly alleged in any of the pleadings or proceedings ; (11) for a mistake in the name of any juror or officer; (12) for the want of any venue, if the cause was tried in the proper county; (13) for any informality in entering a judgment, or making up the record thereof, or in any continuance or other entry upon the record ; (14) for any other default or negligence of any clerk or officer of the court, or of the parties, or of their attorneys, by which neither party shall have been prejudiced." The next section provides that the said omissions, defects, etc., shall be supplied and amended by the trial court or by the appellate court. § 442. Alder after Verdict as lield under the Codes. — Some- times a total omission of a pleading is held to be cured — as, where a cause has been tried without a reply, as though one had been filed, putting in issue the allegations of the answer ; they will, after verdict, be deemed to have been denied,* or the court will direct the reply to be filed at once.* Nor can the objection be raised after verdict that the plaintiff ought to have filed a 1 Thus is cut off the principal ground for error of fact. The clause pertaining to married women is added to the old statute. Rev. Stat. 1845, p. 827. ' The statute of 1845, p. 827, has it, "a special demurrer," etc., and the provision, as it now reads, cannot be held to apply to a demurrer for the radical defects named in the statute. ' This is interpreted to conform to the common-law doctrine of reasonable intend- ment after verdict. The allegation improperly omitted must be a radical one. See Welch V. Bryan, 28 Mo. 30 ; Frazer v. Eoberts, 82 Mo. 457 ; Shaler v. Van Wormer, 83 Mo. 386. * McAlister v. Howell, 42 Ind. 15. ' Henslee v. Cannefax, 49 Mo. 295. 535 § 442 OF PLEADINGS. [PAKT II. special replication, instead of a general denial.' So, where the parties went to trial without an answer to an amended complaint, when one had been made to the original complaint, they were held to be precluded, after the trial, from objecting to the want of an issue. ^ A failure to state facts which show that the con- tract in suit was a valid one, as founded on a sufficient considera- tion, is a radical defect, and is not cured.' An allegation that an excavation in a sidewalk was negligently and carelessly suf- fered by defendant to be left open and unguarded, where the deceased fell in and was killed, implies, after verdict, that the defendant had notice of its dangerous condition.* A mistake in dates — as, one which shows that the plaintiff's right did not accrue until after suit brought — is cured by verdict.* A loose 1 Parish v. "Wilhelra, 63 N. C. 50. ' Gale V. Tuolumne Water Co., 14 Cal. 28. " Welch V. Bryan, 28 Mo. 30. Richardson, X, says: "The ninth clause of the 19th section of the statute of jeofails, viz., '"for omitting any allegation or averment, with- out proving which the triers of the issue of fact ought not to have given such a verdict, is only a declaration of the common law, that a verdict will aid a title defectively set out, but not a defective title."' Followed in Prazer v. Koberts, 32 Mo. 457. ' Bowie V. The City of Kansas, 51 Mo. 454. The general rule, with its limitation, is also recognized in Missouri, in Shaler v. Van Wormer, 33 Mo. 386 ; Richardson v. Parmer, 36 Mo, 35 ; Jones v. Louderman, 39 Mo. 287 ; International Bank v. Franklin County, 65 Mo. 105. » Coryell v. Cain, 16 Cal. 567. In Garner v. Marshall, 9 Cal. 268, the general rule is recognized, but a doubt is expressed whether, in ejectment by one who relies upon title by a sale on foreclosure, an omission to state title, or possession in the mort- gageor, was not fatal, even on errOr. In Barron v. Frink, 30 Cal. 486, the plaintiff sued for the price of hay upon a contract for its sale, alleging part payment, and that there was due a certain sum, which the defendant refused to pay. But there was no allegation of delivery, or of an offer to deliver, the hay. This was held to be a radical defect in the complaint, which was not cured by verdict, and the judgment was reversed. But see Happe v. Stout, 2 Cal. 460, where the defendant was sued upon a promise to pay a judgment against another, upon condition that the execution was stayed. The complaint did not allege that the execution was stayed, although it was shown in evidence, but the court held that the defect was cured by verdict. And that an omission to state the performance of condition precedent is cured by verdict, see, at common law, Collins v. Gibbs, 2 Burr. 899, where the doctrine was admitted, but the judgment was arrested on default; Bailey v. Clay, 4 Rand. 346; Justice v. Ver- million County, 2 Blackf. 149. It should be noted that in California the statute makes one of the grounds of demurrer "that the complaint is ambiguous, unintelligi- ble, or uncertain," and also provides that the objection is waived if not taken by demurrer or answer. Thus, many defects are cured under this statute which, in other states, would be referred to the common-law rule, or to the statutes of jeofails. See The People v. Rains, 23 Cal. 131 ; Jones v. Block, 30 Cal. 227. 536 CH. XXI.] DEFECTIVE PLEADING HOW CURED. § 442 allegation in regard to the negligence of a railroad defendant in fencing their road, upon which the plaintiff's cattle had entered, was held in Indiana to be sufficient after verdict. " The Code," says the opinion, ' ' has little toleration for the practice of conceal- ing questions from the lower courts, with a view to make them available upon vexatious appeals ; and it is, tlierefore, necessary to the harmony of our practice as a whole, as well as to the fair administration of justice, that the most liberal form of the com- mon-law doctrine of intendment after verdict shall be fully main- tained."^ The objection that the complaint does not show that the note sued on has not been paid comes too late after verdict.^ The Indiana Code ^ requires that, when a pleading is founded on a written instrument, or on account, the original or copy be filed with the pleading, which shall be taken as part of the record. But, though a failure to file the paper is ground for demurrer, the defect will be healed by verdict.* ' Frazer, J., in The Indianapolis, Pittsburgh & Cleveland R. Co. v. Petty, 30 Ind. 261. The general doctrine is well stated in Dickerson v. Hays, 4 Blackf. 44, and in Peck V. Martin, 17 Ind. 115. ' Howorth V. Scarce, 29 Ind. 278, » Code Civ. Proc. Ind., J 68. ' Westfall V. Stark, 24 Ind. 377 ; Eigenmann v. Baoof, 56 Ind. 594. 537 INDEX. Note. — The references are to the sections. ABATEMENT, MATTEE 01" DEFENSE. no proper plea in abatement, 345. matter in abatement is a defense, 345. should be set up with other defenses, 345. diflferent ruling in Missouri and Oregon, 345. whether misnomer and other dilatory defenses may be pleaded, 427. ABATEMENT, OF ACTIONS AND CAUSES OE ACTION BY DEATH. actions for personal injuries to wife, 27. at common law, actions for injuries to personal property, 39. statute of 3 Edward III. concerning, 39. of New York, Missouri and Arkansas, 40. of Ohio, Kansas, Nebraska, Indiana, and Iowa, 41. of Wisconsin, Kentucky, Oregon, and Minnesota, 42. by these statutes actions for personal injuries only abate, 39-42. in Iowa no actions or causes of action abate, 41. injuries that affect the estate do not abate, 43. actions by husband and wife that abate, do so at the death of the wife, 27. a judgment does not abate, 44. ACCOUNT, in action on, bill of items to be filed in Missouri, Iowa, Oregon, Indiana, Kentucky, Arkansas, Kansas, Nebraska, and Ohio, 298. in New York, California, "Wisconsin, Minnesota, Colorado, Nevada, North Caro- lina, South Carolina, and Florida it is not required, 299. in actions for balance of, the amount of payment is put in issue by a denial, 357. . items of a running, form but one cause of action, 118. ACTION, definitions of civil actions, 1. common law, a, how commenced, 2. their name, 2. equitable, how originating, 3. name and form of, under Code, 4. forms of, abolished, 5. distinctions between legal and equitable, nominally abolished except, etc., 5. still to be classified, 6. natural classification of, 8. 539 INDEX. ACTION — Continued. distinction between legal and equitable, how preserved, 10. election between, 11-19. See Election between Actions. actions by husband and wife. See Married Woman. parties to actions, 20-111. See Parties. joinder of causes of, 112-134. See Joinder of Causes of Action. "cause of action" defined, 1, 113. "subject of the action" defined, 126, 373. differently defined by New York Court of Appeals, 375 and note, 126, note on p. 170. what actions are local, 284-286, 406. ACTION ON THE CASE, trespass on the case often resorted to at common law, 2. would lie when the injury was not the result of force, 10. distinction between it and trespass, 9-11. tort classed with it under the Code, 9. AGENTS. an agent, merely, cannot sue in his own name, 56. otherwise if the contract is made in his name, 55-57. the principal may also sue, 58. the common law as to what agents could sue in their own name, 59, note 2. what change is made by the Code, 59. AIDER. defects aided by not demurring, 436. by the pleading of the other party, 437. by intendment after verdict, 438, 439. by statutes of jeofails, 440, 441. See Defective Pleading. AMBIGUITY, as to the rule of construction in ambiguous pleading, 314. not a ground of demurrer, but will be corrected on motion, 314. AMENDMENTS, as to substantial amendments in the discretion of the court, 428-431. amendments allowed before the Code, 429. was not allowed to state a new cause of action, 429. or to constitute a new bill, 429. courts will be liable in allowing where cause oi action not changed, 429. instances when not allowed, 429. more liberty given the defendant, 430. but must give some reason for seeking it, 430. instances of giving and refusing it, 430. unconscionable defenses not allowed by amendment, 431. old rule modified in New York, 431. but enforced elsewhere, 431. as to formal amendments under statutes of jeofails, 440, 441. ANSWER, the denial, 323-334. See Denial. the defense of new matter, 339-363. See New Matter. the counter-claim, 367-390. See Counter-claim. 540 INDEX. ANSWER— Continued. grounds of demurrer to be shown by answer, 419. as to whether other dilatory answers may be made, 427. AKGUMENTATIVE PLEADING. where the fact to be stated is left to inference, 316. as by pleading probative facts, 316. in denials, by stating a fact inconsistent with the statement of the opposite party, 333. such statement in effect a denial, and may be proved under it, 333. to be corrected by motion, 333. ASSAULT AND BATTERY, the injury is personal and several, and two cannot unite in an action for the injury, 26. the liability in slander necessarily single, 84. a simultaneous beating and slander not the same transaction, 125. in a battery of the wife, the cause of action is hers, 27. if the husband has suffered a loss of service he may also sue, 27. ASSIGNEE, property of bankrupt passes to, 263, note 1, p. 310, J 409 and note. may allege property in himself, except, etc., 263, note 1, p. 310, I 409 and note, in enforcing contracts, must show authority, 263. in insolvency, may sue as assignee merel}', 263. or allege the general assignment, 263, is a trustee of an express trust, 54. may sue in his own name when, 54, 263. ASSIGNMENT, choses in action, when assignable, 38-43. such as survive the death of the parties, 39-43. personal torts not assignable, 38-i3. contracts in general assignable, 45, 47, 51. merely personal not assignable, 48 and note 1. executors and administrators may assign, 49. the mode of assignment, 50. assignments without actual sale, 51. See Paktibs PLAKfiiFP is Actions bx CoNTRACTtr. assignees sue in their own name, 45, 263. a joint obligee may assign his interest, 64. a single obligee may assign a part of his interest, 65. joint obligees, except partners, shall all join in a full assignment, 66. in bankruptcy, all property passes to the assignee, 263. ASSUMPSIT. the right to bring it, althoiisrh for a tort, recognized at common law, 13, 130, 154. the promise in, is often a fiction, 12, 128, 152, 154. the right need not be based upon an implied promise, 154 and notes. ATTORNEYS. when a pleading may be verified by, 173. for the state will be judicially noticed, 195. each court will notice the roll of its own attorneys, and their signatures, 199. 541 INDEX. AUCTIOlSrEERS. may sue in their own name, 59. entitled to indemnity from employer, 89. BILLS AND NOTES, in negotiable paper the indorsee is the legal holder, 45. executors and administrators may indorse, i9. the indorsement merely to the plaintiff will authorize suit, 51. in certain states joint obligations are made several, 93. in most, all the parties to bills and notes may be sued together, 94-95. guarantors not generally treated as parties, 95. to say that a bill Was accepted implies a written one, 176. that a bill or note was made to or indorsed to plaintiff implies that he is the owner, 176. as to title to, and striking out indorsements, 232. mode of alleging, 233. as to acceptance supra protest, 239. they import consideration, 268. time material in demand and notice, 283. CAUSE OP ACTION, is the wrong committed or threatened, 1, 113. relief of different kinds does not ordinarily make different causes of action, 114-116. except in certain cases where partial relief is sought, 114. illustrations and authorities, 115, 116, and notes, splitting a cause of action, 118. several breaches of one contract do not make different causes of action, 118. a running account but a single demand, 118. a demand may be divided by consent, 118. causes of action in one complaint to be separately stated, 119, 120. they must be consistent, 122. must affect each party, 123. CERTAINTT OR PARTICULARITY. time and place to be certain when material, 283, 284. the formal statement of, as in common-law pleading, not now necessary, 296. time a necessary element in a transaction, 296. property to be described with certainty, 297. vagueness of descriptions in common-law pleadings, 297. provisions in certain states as to items of account, 298. the common counts suffice in certain states, 299. as to certaintj' in pleading estates, 300. difference between fee-simple and other estates, 300. CHOSES nsr action. arising from torts, when assignable, 38^3. contract, when, 41-48. who may assign, and mode, 49-51, 64-66. belonging to wife, husband and wife must join, 27. See Assignment ; Paktibs. title to, must be shown, and how, 231-233. 542 INDEX. CIVIL DIVISIONS, created by law will be judicially noticed, 186. as counties, towns, school districts, Judicial circuits, 187, 198. See Judicial NOTIOB. CLASSIFICATION. of actions under the Code, 6-9. the old, in actions at law, in part artificial, 8. not in chancery, 7, 9. the natural classification, 9. actions on contracts classed together, 9. also actions for injuries, 9. COLOR. See Defense of New Matter. COMMERCIAL LAW. defined, 178. courts will take judicial notice of it, 178. notaries public, ofiices of, 197. their seals judicially noticed, 197. COMMITTEE, when authorized to sue, should show authority, 267. COMMON COUNTS, when permitted in lieu of counting on the express contract, 156, 157, and nntns. when sufficiently certain in some states, 299. in other states, inconsistent with the statute, 298. COMPLAINT OR PETITION, order of its parts, 143. consists of the title, 144-147. See Title of Complaint. the statement, 148-158. See Statement. the relief, 159-171. See Relief. the oath, 172, 173. See Oath. CONCLUSIONS OF LAW. not to be pleaded, 210-219, 334. to be distinguished from a conclusion of fact. Illustrations, 210. distinction between pleading fraud and negligence, 211. negligence a fact, or mixed question of law and fact, 211, and note 4, p. 261. Instances of legal conclusions, 212. a mere conclusion of law is no pleading, 213. such conclusion when combined with statement of facts does not vitiate, 213. as to denials of legal conclusions, 334. instances, 334. good after verdict if the real issue is indicated, 334. CONDITIONS PRECEDENT, at common law, particularity required, 301. sufficient under the statute to say that they have been duly performed by the plain- tiff, 301. should be confined to contracts in which the condition is expressed, 302. but applied by certain courts to statements of demand and notice, 302 and, notes. 543 INDEX. CONSIDERATION, must be shown in actions on contract, except, etc., 268-279. not in deeds and commercial paper which import it, 268. nor in certain other contracts, in some states, 269. insufficient consideration, 270-275. frivolous and impossible; 271. illegal, 272, 274. immoral, or against public policy, 273, 274. instances, 273, 274. fraudulent, 274. moral consideration, when good, 275. want of, matter of defense in contracts which import it, 269, 274. instances of sufficient consideration, 270. executed consideration, why insufficient, 277. must be shown in deeds of bargain and sale, 278. in covenants to stand seized, 278. in sealed contracts in restraint of trade, 279. may be alleged as recited in the contract, 308. and the recital is sufficient evidence, 308. ■when want of consideration may be shown under a denial, and when not, 330, and note 5. CONTRIBUTION, no contribution between tort-feasors, 89. CORPORATION. when a party, its legal existence must be shown, 246-260. unnecessary when the court takes judicial notice of the act creating it, 246, 269. or if the instrument in suit acknowledges the fact, 252-255. the rule in common-law pleading, 247, 248, and notes, not to be followed, 249. nul tiel corporation, note, p. 296. the rule in New York, 250. in certain other states, 251, and notes, doctrine of estoppel as applied to, 253-255, 257. "Welland Canal Company v. Hathaway examined, 254, 255. authorities adverse to, 253. corporation de facto to be treated collaterally as regular, 252. hpw misnomer in, taken advantage of, 256, 427. the allegation as to defendant may be general, 260. corporate character not appearing ground of demurrer for want of capacity to sue, 408. COUNTER-CLAIMS. the statvite, 369, and notes, distinction between, and defenses, 367, 368. it must clearly appear which is intended, 367, and note 3. sometimes the same facts constitute both a counter-claim and defense, 348-351, 368. recoupment embraced in first subdivision of, 370. described as at common law, note 1, pp. 436-440. three classes in first subdivision, 371. (1) arising out of the same contract, 371. 544 INDEX. COUNTER-CLAIMS — Continued. (2) out of the same transaction, 372. (3) out of transactions connected with the suhject of the action, 373-375. instances of first class, 371. transaction broader than contract, 372. meaning of the phrase "subject of the action," 126, 873. instances in counter-chiims, 374, and notes. a different view in New Yorlc, 375. subject not distinguished from cause of action, 375. this view criticised, 375. the Indiana statute and rulings, 376, and notes, the second subdivision includes set-ofl' and mote, 377. the set-off defined, 377. always statutory, 370. the term retained in certain states, 380. the old meaning generally given it, 380. elsewhere, should embrace unliquidated damages, 378, 379, and note 3, p. 467. as to set-off by waiving a -tort, 381, and note 3. some instances of set-off, 382. equitable counter-claims, 383-385. jurisdiction in equity to compel a, set-off based upon equitable grounds after the statute, 383, 384. still exists upon the same grounds by way of counter-claim, 383, 384. instances, 883, 384. some are but defenses, 385. instances, 385. a limitation upon counter-claims — they must affect the plaintiff's recovery, 386- 389. rulings in regard to, 386-388. foundation of, 389. CROSS-COMPLAINT OR PETITION. necessary when afBrmative relief is sought against a co-defendant, 390. DEATH. See Abatemku-t by Death. responsibility when an injury causes death, 31, 32. Lord Campbell's act as adopted in certain states, 31. other similar provisions, 32. DEBT. a common-law action, 2. how based upon contract, express or implied, 8, 9. the demand must be certain or liquidated^ 8. no natural distinction between it and assumpsit or covenant, 9. DECLARATION. at common law, was an amplification of the original writ, 2. DEFECTIVE PLEADING. remedies for, by demurrer, 404-418. See Demukrbk. by answer, 419. by motions, 420^27. See Motions. "5 545 INDEX. DEFECTIVE PLEADING— ConWrawerf. by amendment on leave, 428-431. See Ambnumbnt. how aided or cured, 435-442. basis of the doctrine, 435. defects that are grounds of demurrer, 436. by the pleading of the other party, 437. instances, 487. by intendment after verdict, 438, 439. the doctrine explained, 438. instances, 438. ■what omissions cured and what not, 439. no presumption contrary to the record, 439. by statutes in aid of, 440. Code provisions, 440, 441. English statutes embraced in, 440. given in detail in Missouri, 441. instances of total omissions cured and not cured, 442. DEFENSE OF NEW MATTEE. governed by the general rules of statement, 339. except in Missouri as to fraud, 339, note, it gives color, confesses and avoids, 340. the confession not absolute, 341. more than one defense allowed, 342. they must be consistent, 342-344. the equity rule, 342. character of the inconsistency, 343, 344. the judicial view, 344, and notes, all defenses to be in the same answer, 345. the Missouri and Oregon view, 345, note 3, p. 396. to be separately stated, 846. each statement to be complete, 346. equitable defenses to be made, 347. but they are sometimes embraced in a counter-claim, -348. illustrations, 849. should be where there can be no defense without affirmative relief, 349. rulings upon the subject, 350, 351, and notes. See Mistake; Specific Pkr- rORMANCB. new matter necessary where the facts stated cannot be denied, 352. the denial goes to the facts and not the liability, 352. some different rulings, 352. as to pleading champerty, note 1, p. 409. statute of frauds, not to be pleaded as a defense, 353. when the pleading demurrable because of, 353. if contract be denied, a legal one must be proved, 353. the equity rule followed, 353. statute of limitations to be set up by demurrer or answer, 355, and note. demurrer will lie if the action is shown to be barred, 205, 355, and note, 414. in ejectment, not to be pleaded unless required by statute, 356. the states that so require it, 356. payment must be specially pleaded, 357. 546 INDEX. DEFENSE OP NEW MATT-EB.— Continued. allegation of non-payment not traversable, 357, 358. otherwise in California, 358, and note 2. in libel and slander, 359-363. See Libel and Slandke. DEFENSE. not to be anticipated, 200-205. the plaintiff need not state what has been paid, nor the particulars of a set-off, 200. nor facts — as, full age, etc. — showing capacity to contract, 175, 200. but in actions upon penal statutes or contracts an exception must be pleaded and avoided, 202. but not a proviso, 202. the distinction between, 202, 203. the rule sometimes applied to the statute of frauds, 204. applicable to the statute of limitations at common law, 205. but not under the Code, 205. DEMUKRER. the statutory grounds, 404. it denies the legal proposition involved in a pleading, 136, 137. scope less extensive than at common law, 404. 1. for want of jurisdiction over the person, 405. its application, 405. for want of, etc., over the subject of the action, 406. as, when it is exclusive in other courts, or when the action is local, etc., 406. 2. for want of legal capacity to sue, 407. arising from disability — as, infancy, etc., 407. from want of title to the character in which he sues, 408. as an unqualified executor or administrator, 408, 409. or that plaintiff's corporate character does not appear, 408. or the authority of an agent, or receiver, 409. 3. for pendency of another action, 410. will not lie if the action is pending in another state, or in the Federal courts, 410. 4. for defect of parties, 411. applies only to deficiency, not excess, 411. must appear that the omitted party is living, 411. certain states make unnecessary parties a ground of demurrer, 411. 5. for misjoinder of causes of action, 412. applies to the union itself, without reference to the manner of it, 412. 6. for want of facts to constitute a cause of action, 413. like the common-law general demurrer, and still so called, 413. will reach the violation of what rules of statement, 413, and notes, available except, etc., by those improperly made parties, 414, and note 3. available except, etc., to invoke the statute of limitations, 414. demurrer to the relief given in Iowa, 404, and note 2, p. 481. excess of parties ground of, etc., in Missouri, California, Nevada, and Colorado, 415. in same states, except Missouri, ambiguity, etc., also, 415. grounds of objection to be distinctly specified, 416. but it generally may be done in the language of the statute, 416. statute of limitations to be expressly named, 416, more particularity required in Iowa, 416, 547 INDEX. B'EKVKKE^— Continued. demurrer for defect of parties should give the names omitted, 416. demurrant is confined to the ground specified, 411. may be made lo the whole pleading, or to any of the causes of action or defenses, 417. if general, overruled if any are good, 417. except in Iowa, it goes to the facts, not the relief, 417. if overruled, judgment goes against demurrant, unless withdrawn, 417. error waived if withdrawn and issue of fact made, 417. as to waiver of error, if sustained, 417. runs through all the pleadings, 417. admits facts well pleaded, 418. but admits nothing as evidence, 418, and note 4. instances of admissions and non-admissions, 418, and note 4. DENIAL, the statute, 323. its object and form, 325. the common-law general issue, 324, and note 3. denial of knowledge, 326, and note 4. facts inconsistent with statement may be proved under a denial, 327. instances, 328, 329, and notes. some contradictory rulings, 329. instances of what may not be thus proved, 330. the denial should be specific, whether general or special, 331. instances, 331, and notes. must be so unequivocal that perjury would lie, 331. negatives pregnant to be avoided, 332. See Negatives Pkeonant. argumentative denials, 333. See Akqumbntativk Plkadino. a denial goes to the facts alleged and not to the liability, 353. DUPLICITY. defined at common law, 288. defined under the Code, 290. not the same as misjoinder, 290. is only a formal defect, 290. how apparently viewed in Wisconsin, 291, and note. how in New York, 292, and notes. in other courts, 293, and note. certain rules concerning it, 294. additional counts not duplicity, 295. rule in Iowa, 295. EJECTMENT, claims to recover real property may he united, 132. plaintiff may elect whether with or without damages, 132. in Missouri the allegation of title to land a conclusion of law, 223. the allegations of title required in other states, 222-226. title in the common-law action, 222. rule of court as to, in St. Louis, Mo., Circuit, 223, note 1. statute as to, in Arkansas, 225, note 7. ictions of, are local, 284, 285. ■when defeated by a counter-claim for specific performance, 349, 351. 548 INDEX. ELECTION. between actions, 11-19. See Actions, ante. allowed when there are two or more remedies, 11. right of, how changed by the Code, 12. the right to waive the tort and sue as upon contract, 13, 244. in conversion and sale, or in conversion of personal property, 13, 244. where there is both a contract and legal duty, 14. as against carriere, innlceepers, attorneys, etc., 14. but not where there is no duty outside the contract, 14. in fraudulent sales and for money obtained by fraud, 15. where there has been an intentional destruction or injury to property by a bailee, 16. or when it has been used for a different purpose, 16. different kinds of actions may lie upon the same contract, 17. as, by a discharged servant, or a contractor who is interfered with, or by a landlord, 17. when one may elect between remedies of a legal and equitable nature, 18. or one may rescind or enforce a contract, 18. or may bring replevin in an action for damages only, 18. considerations that should control the election, 19. bow election between contract and tort to be indicated, 153, 155. right of election not based upon an implied agreement, 154, and notes. EQUITABLE ACTIONS, when no remedy or adequate remedy at law, 3. no technical names applied to, 3, 7. no original writ in, but a subpoana issued, 3. classification of, existed in fact, not in form, 7. distinction between, and actions at law abolished, except, etc., 4, 5. but the remedy in, same as before the Code, 9. we may call them actions for equitable relief, 10. the distinctions between, and actions at law preserved in the mode of trial, 10. EQUITABLE RELIEF. distinction between equitable and legal actions abolished, 4, 5. but equitable relief still given, 10. election between actions for, and for money, 18. injunction only remedy for waste by remote remainder-man, 33. trusts in favor of married woman to be enforced by her, 35, 37. See Parties, 72-81. in seeking it, full relief will be given, 166-171. it must appear that a money judgment will not suffice, or cannot be obtained, 280, 281. ESTOPPEL, a tort-feasor estopped from setting up his wrong, 244, 154 and notes, where defendant estopped from denying plaintiff's incorporation, 252-255. the doctrine discussed as applied to corporations, 255. EVIDENCE NOT TO BE PLEADED, the rule at law still in force, 140, 206-209. distinction between evidential and ultimate facts, 206. no issue can be taken upon the former, 206. cases illustrating the difference, 207. 549 INDEX. EVIDENCE NOT TO BE FXjEADm) — Continued. facts may be stated substantially as in special counts in common-law pleading, 206, note, pp. 254, 255. difficulties in applying the rule, 208. conclusions of fact are not conclusions of law, 209. EXECUTORS AND ADMINISTRATORS, actions for personal injuries to the wife survive to her's, not to her husband's, 27. as to plaintiff's, and to whose use, under Lord Campbell's act, etc., 31, 32. actions for injuries that affect the estate survive to, 38.. sundry statutes on the subject, 39-42. their construction, 43. may assign choses in action, 49. if for the estate, should sue as executor, etc., 53, 145. should so sue upon all contracts of decedent, 53. as to subsequent contracts, may sue personally or as executor, etc., 53. rights of joint obligees descend to, 62. cannot sue for injuries to the realty,' 53. unless done before death of decedent, 53. or unless authorized by statute, 53. must set out the facts in a pleading showing authority, 264. mode of setting them forth, 264, and note 5, pp. 311, 312. as to joinder of executors, etc., of joint obligors and obligees, 62, 106, 107, 266. See JoESTT Obligations and Rights. want of title as such, ground of demurrer for want of capacity to sue, 408. FACTORS, may sue in their own name as trustees, etc., 46, 57. the right not changed by the Code, 59, and note 2. FALSE IMPRISONMENT, the injury for, usually several, 26. held sometimes to be joint, 26. FATHER. See Parent. FICTIONS. are they abolished by the Code, 151-157. See Statement. FRAUD, to charge fraud in general terms is a conclusion of law, 211. it will not be presumed unless the facts are shown, 211. contracts tainted with, illegal, 274. FRIVOLOUS PLEADING, to be stricken out on motion, 421. or wholly disregarded, 421. instances of, 421. not frivolous if put in in good faith. 421. counter-claims not treated as frivolous, 421. unless in Missouri, note 1, p. 505. GUARDIAN, when authorized to sue, should show appointment, 267. 550 INDEX. HUSBAND AND "WTPB. when to join in actions, when not, 34-37. See Married "Woman; Parties to Actions. liable for torts of the wife, and must be joined with her, 85. liability survives against the wife only, 85. if injury committed in his presence, presumed to be his act, 85. wife only liable if the tort springs from her separate estate, 86. as, in injuries by her cattle, 86. misrepresentations in sale of her property, 86. husband suing in right of the wife must show the relation, 267. HYPOTHETICAL PLEADING, condemned, 317. IMPLIED CONTRACTS, what are, and have been so called, 9, 128, 152, 154, and notes, generally, an actual understanding, 9, 128. the term then legitimate, 128. otherwise, it is a fiction, 128, 152-154. the fictitious promise should not be alleged, 152, note, how should a tort be pleaded as an implied contract, 153, 155. the right to treat a tort as a contract doubted, 154, and notes, arising from duty, 128, 241, 242. from domestic obligations, 243. from acceptance supra protest, 239. IMPLIED PACTS. need not be stated in a pleading, 176. in certain things, when required to be in writing, that they are in writing is implied as guaranty or acceptance of a bill, 176. to say that a bill or note is payable to or has been indorsed to the plaintiff implies that he is the owner, 176. notice implied in a revocation of a submission to arbitration, 176. to say that a judgement, etc., of an inferior court has been duly given implies juris- diction, 176, 303. a conveyance implies livery of seizin, 176. the execution of an instrument implies delivery, 176. INCUMBRANCERS. as to making them parties in actions to foreclose mortgages, 100, 101, 103. INDUCEMENT. what is matter of, 150. fictitious, abolished, 149. the distinction between, and the gist preserved, 149. less particularity in the statement of; required, 311. INJURIES, causes of action arising from, may be united, except, etc., 129. from injuries to character to be united, 131. See Torts. INTENDMENT AFTER VERDICT, the common-law doctrine, 438. instances of its application, 438, 439. 551 INDEX. rNTERNATIONAL LAW. courts will take judiciiU notice of it, 178. defined, 178. See Judicial Notice. IRRELEVANT MATTER, same as impertinence in equity pleading, 214. is necessarily redundant, 214. has no connection with the cause of action, 423. will be stricken out of a pleading, 423. .if left in, to be treated as surplusage, 423. ISSUE OE LAW. See Demurrer. ISSUE OP FACT. See Denial. JEOFAILS. statutes of, 440, 441. their substance in the Codes, 440. given in detail in Missouri, 441. JOINDER OF CAUSES OF ACTION, in one complaint, 112-134. language of the Codes in the different states, 112, and notes, "cause of action" defined, 1, 113. a wrong always supposed, 113. different modes of relief do not make different causes of action, 114-116, 166-171. See Relief. illustrations, 115, and note, decisions in regard to, 116, and notes, the causes must be between the same parties in the same right, 117. one cause of action must not be split, 118. all demands already due upon one contract make one cause of action, 118. a running account makes OJie cause of action, 118. but parties may agree to divide the account, 118. a portion of a demand assigned by consent makes a separate cause of action, 118. moneys fraudulently obtained at differenttimes make but one cause of aQtion, 118. the view in Missouri, 118, note 6. each cause must be stated separately, 119. in Iowa, two or more notes may be joined in one statement, 295. each statement must, in general, embrace a new cause, 119. aliter in Indiana, Wisconsin, and Iowa, 119. when necessary, a restatement may be made in New York, 119, and note 3, p. 159. when there are two grounds of action, two statements should be permitted, 120, and notes, each statement must be complete, 121. the causes of action must be consistent, 122. each party must be affected, and in the same right, 123. joinder under common-law and equity pleadings, 124. classification of causes of action that may be united, 125-134. subdivision first — those that arise out of the same transaction or transactions, connected with the same subject of action, 125, 126. the term "transaction" may include a tort, 125. 552 INDEX. JOINDER OF CA.USES OP XGTIOT^ - Continued. a single one may authorize double relief, 114, 125. two transactions may^ccur at the same time, 125. the subject of the action defined — as, the matter or thing concerning which the controversy has arisen, 128. as applied to counter-claims, 373-375. its application to different causes of action, 126, and note, subdivision second — those that arise out of contract, express or implied, 127-130. it includes specialties and simple contracts, 127. an implied contract arises (1) where there is a tacit understanding, and (2) where the law creates an obligation, 128. subdivision third — causes of action arising from injuries, 129, 130. classes of injuries included, 129. all for which trespass or case would lie, 129. when the tort may be waived, 130. subdivision fourth — injuries to character, 181. embraces libel, slander, and malicious prosecution, 131. subdivision fifth — ejectment, 132. subdivision sixth — replevin, 133. subdivision seventh — actions against trustees, 134. different classification in Indiana, California, Oregon, and Nevada, 131. Kentucky omits the first class, 127, note 1. Bee Misjoindek. JOINDEK OE PARTIES PLAIN TIFF, as to joint owners in actions for injuries to property, 24, 25. joinder in personal injuries, 26. husband should join for injuries to wife's property, when, 26. See Pakties to Actions — plaintiffs in actions ex delicto. Code provisions as to joinder of plaintiffs, 61. when permitted and when required, 61. joinder in common-law proceedings, 62. joinder imperative as to joint obligors and their survivors, 62. whether the right is joint or several, 63. as to joinder by tenants in common in an action for rent, 67-69. distributees and legatees may join, 70. parties having a common interest, 73-76. See Pakties to Actions ^plaintiffs in actions for equitable relief, an unwilling plaintiff" to be made defendant, 77, 78. representation — equity rule and the statute, 79. its application, 80, and notes. See Parties to Actions — plaintiffs in actions for equitable relief. JOINDER OF PARTIES DEFENDANT, defendants in actions founded on torts, 82-89. See Parties to Actions — defend- ants in actions founded on torts, defendants in actions founded on contract, 90-95. See Parties to Actions — • defendants in actions founded on contract, defendants in actions for equitable relief, 96-111. See Parties to Actions — defendants in actions for equitable relief. JOINT TENANTS, must join in real actions, 25. liable for a duty imposed upon them as owners of land, 87. 553 INDEX. JOnSTT OBLIGATIONS AND EIGHTS. as to what obligations are joint, 91. in actions on, all must be sued, 92. the doctrine of survivorship, 92, 105. certain states make such obligations several, 93. where several obligors are subject to a joint action, 94, 95. See Parties to Actions — defendants in actions on contract, survivorship unknown in equity, 105. how the legal rule evaded and contribution enforced, 105. the rule upon principle, under the Code, 106, 107. but not recognized in New York and some other states, 107, and notes. See Parties to Action's. joint obligees and their survivors must join in bringing suit, 62. survivorship in actions not justified on principle, 62. survivors must show death of co-obligee, 266. if executor, etc., be allowed to join, his appointment must be shown, 256. JUDGMENT, does not abate by death, 44. sometimes entered after death, if verdict given before, 44, and note, of an inferior court, may be alleged to have been duly given, 303. rule does not apply to foreign j udgments, 303. JUDICIAL NOTICE, facts of which the courts take notice not to be pleaded, 177-199. courts will take notice of laws, 178-186. of international law, 178. of the commercial law in general, 178. but not of particular statutes bearing upon it, 178. of ecclesiastical laws, so far as part of the public law, or matter of notoriety, 178. of the common law, 179. of its changes and modifications, 179. assumed to be the same in other jurisdictions as in that of the forum, 180. when otherwise held, to be pleaded and proved as facts, 180. common-law felonies assumed to be crimes everywhere, 180. of old English statutes, 179. of domestic public statutes, 181. statutes, when public, 182. not private because local, 182. public when applicable to all within a district named, 182. public when applicable to a town or county, 182. town charters are public, 182. acts creating banks or other corporations, 182, 246, 259. imposing duties upon public olEoers, 182. in Ohio, all statutes called public, 182. of foreign laws and statutes operative within their jurisdiction, 183. as, certain laws of Virginia in Kentucky, 183. as, certain laws of Virginia in Indiana, 183. former municipal governments in California, 183. certain laws of Prance and Spain in Missouri, 183. same in the Pederal courts, 183. North Carolina land grants in Tennessee, 183. 554 INDEX. JUDICIAL JHOTIC'E — Continued. the public United States statutes will be noticed by all the state courts, 183. and all the public statutes of the states by the Federal courts, 183. private domestic statutes will be noticed by pleading their title and date, 184, 304. foreign statutes will not be judicially noticed, 183, 184. nor private statutes not thus pleaded, 183. except in Kentucky, Ohio, 182. will take notice of treaties, 185. of proclamations, 185. of civil divisions created by law — as, counties, towns, school districts, etc., 185, 198. but not when created by private acts or proceedings, unless their existence is notorious, 185. of the existence and boundaries of judicial districts, 185. courts will take notice of matters of general notoriety, including recognized facta of science, 187-191. of the course of nature, and more obvious facts of natural science, 188. as, the period of gestation, 188. the maturity of crops, 188. the variation of the magnetic meridian, 188. the general laws of nature, 188. facts of unvarying occurrence, 188. of certain facts of geography, 189. as, the general geography of the country, 189. its lakes, rivers, and mountains, 189. its navigable rivers and great falls, 189. the tide-water rivers of England, 189. the great distance between known places, 189. but courts will not assume that a foreign city named is in any particular state or country, 18)3. or that New York is in the state of New York, etc., 189. or that New Orleans is in Louisiana, 189. or that Dublin is in Ireland, 189. of facts of current history, 190. as, the existence of war before oflBcially proclaimed, 190. the common source of title to land, 190. that certain public lands are held under the United States, 190. that slavery was abolished by the war, 190. that certain states recognized it, 190. that the Methodist Episcopal Church was separated, 190. that a certain currency was depreciated, 190. of facts of general history affecting the whole people, 190. of the popular meaning of words and abbreviations, 191. of the ordinary computation of time, 191. courts will take notice of certain facts of a mixed legal and public nature, 192-198. of the existence and general external relations of nations, 193. their flags, seals, and titles of the head, 193. but this does not apply to unacknowledged powers, 193. of legislative bodies under the same jurisdiction, their legal privileges, time of session, etc., 194. 555 INDEX. JUDICIAL -NOTICE — Continued. as to their journals, 194. of general officers of stute, 195. including judges of courts, sheriffs, state attorneys, 195. of local officers within the court's jurisdiction, 195, 19ij. of all courts of general jurisdiction, 195. of inferior courts within their jurisdiction, 195. of same, outside of jurisdiction, so far as is established by law, 19S. of the rules of its own court, but not of other courts, 196. judicial notice of oflRcers is to officers de facto only, 193. of the official seals of all nations, and of our states and territories, 197. of the seals of the courts of admiraltj'' of all nations, 197. but not of other foreign courts, 197. of the seals of notaries public as to acts under the law-merchant, 197. as to judicial proceedings of other states under the Federal Constitution, 197. of the public survej's and subdivisions of the public land, 197. of tlie coinage and legal weights and measures, 197. courts will take notice of matters peculiarly within their own knowledge, 199. of its records, its officers and their deputies, its roll of attorneys, and the official signatures of each, 199. LANDLORD AND TENANT, as to parties in an action for waste, 33. as to joinder by tenants in common in actions for rent, 67, 69. coparceners may sever, 68. in actions on lenses the lessor need not show title, 228. otherwise with his heir, assignee, or executor, 228. between lessor and lessee there is privity of estate and of contract, 236. between either and an assignee, only of estiite, 236. between original parties, after assignment, only of contract, 236. LAWS, will be judicially noticed, 178-186. the common law and old English statutes, 179, 180. public domestic statutes, 181, 182. but not private or foreign acts, 183. otherwise in certain states, 182. when foreign laws noticed, 183. how private statutes noticed under the Code, 184. See Judicial Notice. as to exceptions and provisions in statutes, 202, 203. LIBEL AND SLANDER, the injury is personal and several, and two cannot unite as plaintiffs unless it is to their partnership business, 26, note 7, p. 26. in a slander of the wife by words actionable per se, the cause of action is hers, 27. if not so actionable, the injury, as affecting her estate only, is, at common law, to the husband alone, 27. no joint liability for slander, 84. otherwise in a libel, 84. as to the application of the words to the plaintiff, the Code rule, 305. in what does it change the common-law rule, 305. 556 INDEX. MBEL AND SLANDER— ConiStmferf. del\-nses in justification and mitigation — the old law, 359. how changed by the Code, 360. facts tending to justify admissible in mitigation, 360. answer in justification mala, fide, still an aggravation, 360. justifiiation still to be pleaded, 861. must be specific, 361. pleader should show his object, whether to justify or mitigate, 362, 363. facts in mitigation are new matter, 363. both jvistification and mitigating circumstances may be pleaded, 360. LORD CAMPBELL'S ACT. as to liabilitj- when injuries cause death, 331, and note 1. MARRIED "WOMAN— AT COMMON LAW. actions by husband and wife are actions by the wife, 27. the husband joins for her salce, 27. if personal, they abate by her death, 27. if cause of survivor to the wife, she must join, 27. thus, if the injury be to her personally or to her property, 11. she must join in actions that survive to her personal repre-ciitntives, 27. she does not join in actions concerning her personal property, 27. nor to the possession merely, or to the crops, 27. common-law right of husband to her property, 35. MARRIED WOMAN — IN EQUITY, property may be held to her separate use, 35. always held in trust for her, and should be protected by the trustee, 35, 37. the trustee should ordinarily sue, although she may enforce the trust, 35, 37. the statutory permission to sue alone in respect to her separate property can only be available to enforce the trust, unless to protect her possession, 35, 37. MARRIED WOMAN — BY STATUTE. is authorized to sue alone in respect to her separate property, 34. this does not refer to property held to her separate use, 85-37. has special reference to property held under the Married Woman's Acts, 37. may sue alone in New York for injuries to person or character, 35. MASTER AND SERVANT. right of action by the master for injuries causing loss of service, 28. the remedy for seduction is for loss of service, 28. the father, or upon his death the mother, may sue for such loss of service, 28. the loss of service the gist of the action, 28. statutory changes as to, 30. the servant or child has. also a right of action for personal injuries, 29. master liable for negligence of servant, 83, p. 108, note 5. master and servant jointly liable, 88. sheriff liable for acts of deputy as his servant, 83. MECHANICS' LIENS. as to parties in action to enforce, 103- MIS.JOINDER. difference between, and duplicity, 290. 557 DfDEX. MISJOINDEE— Continued. an improper union of causes of action, however stated, 290, 412. a ground of demurrer, 412. MISTAKE. a counter-claim of, may operate as a defense, 349, 350. in an action to correct, full relief will be given, 167-169. MORXaAGES. defined, from Kent, 98. equitable mortgages, 98. parties in suits to redeem, 99. parties in suits to foreclose, 100-104. See Parties to Actions — defendants in actions for equitable relief. MOTHER. See Pabent. MOTIONS. remedy for most defects of form, 420, 426. is an application for an order, 420 must specify the reasons for it, 420. frivolous pleading to be stricken out on, except when treated as a nullity, 421. instances of frivolous pleading, 421. See Ekivolotts Pleading. sham answers to be stricken out on, 422. See Sham Pleading. irrelevant matter to be stricken out on, 423. See Irrelevant Matter. redundant matter to be stricken out on, 423, 424. See Redundant Matter. pleadings to be made definite and certain on, 425. See Uncbbtaintt. when motion will lie for failure to file papers, 426. whether it will lie for misnomer, 427. See Misnomer. MULTIFARIOUSNESS, defined as to parties, 110. not multifarious if there is a common point of interest, 110. defined as to the subject-matter of the bill, 289. synonymous with misjoinder under the Code, 290. NAMES OP PARTIES. to be given in the title, 145. the true name to be given, 146. how, if name is unknown, 147. the representative character should appear, 53, 145. NEGATIVE PREGNANT. a denial that implies an afiirmative, 315, 382. illustrations, 332, and note. a species of ambiguity, 332. it makes no issue, 332. instances of, 332, and note 1, p. 382. in Missouri and Iowa, treated as an informality merely, 332, and note 1, p. 383. NEGLIGENCE. may be charged generally, 211. NEW ASSIGNMENT. what, at common law, 394. how the end to be reached under the Code, 394. 558 INDEX. OATH. its object, 172. in what states required, 173. ORDER, defined, 420. applied for by motion, 420. PARENT, the father, or, in case of his death, the mother, may sue in seduction, 28, 30. the daughter in such case treated as a servant, 28. statutory changes as to, in certain states, 80. when father or mother may sue, under Lord Campbell's Act and similar acts, 31, 32. PARTIES TO ACTIONS. the true names to be stated in the title, 145. parties plaintiff in actions ex delicto, 20-44. in general, those who have suffered the injury, 21, 29. for trespass, those whose possession is disturbed, 22. the reversioner a remainder-man, when, 22. when by the general owner of personal property, if injured or converted, and when by the one in possession, 23. joint owners must join in the action, 24. rule as to joint tenants and tenants in common, 24. rule as to same in real and mixed actions, 25. in ejectment, a joint demise by tenants in common was allowed in New York, note, I 25. all should join or all sever, 25. custom in Missouri, California, and Nevada, 25, and note, in libel, slander, assault, and false imprisonment, the injuries several, 26. partners and others may join for an injur3' to their joint business, 26, 24. for injuries to the wife, when at common law, the husband should join, 26. for injuries to her property, when to sue alone, 26. when by statute, in respect to her separate property, 34. when, if such property is held for her use, 35, 37. if held under the Married Woman's Acts, 36, 37. for injuries to servants, 28. for seduction, at common law, 28. by statute in certain states, 30. when the injury causes death, under Lord Campbell's Act, 31. under certain other acts, 32. in actions for waste, at common law and by statute, 33. as to assignees of rights of action arising from a tort, 38. those which survive are assignable, 38. what survive under statute 3 Edward III., 39. what in New York, Missouri, and Arkansas, 40. what in Ohio, Kansas, Nebraska, Indiana, and Iowa, 41. what in Wisconsin, Kentucky, Oregon, and Minnesota, 42. rulings in New York, Missouri, Kentucky, and Kansas, 43. PARTIES TO ACTIONS, plaintiffs in actions ex contractu, 45-71. 559 INDEX. PARTIES TO ACTIOI^S — Continued. at common law, suit brought by the one holding the legal interest, 45. by the Code, by the real party in interest, 45. things in action at common law not assignable, 47. but are assignable in equity, 47. nothing assignable under the Code not before assignable in equity, 47. survivorship the test of assignability, 47. contracts of a personal nature not assignable, 48. this includes contracts of apprenticeship, of marriage, and of mere personal service, 48. executors and administrators may assign, 49. but only on behalf of the estate, 49. as to the effect of assignment without actual sale, 51. generally held to authorize the assignee to sue, 51, and notes, plaintiff's other than parties in interest, 52. executors and administrators, 53. when on behalf of the estate, and when not, 53. when the chose may pass to the representative of the executor, etc., and when to the administrator de bonis non, 53. trustees of an express trust, £4. must be created by express act of the parties, 64. instances, 54. "persons with whom or in whose name a contract is made for the benefit of an- other," 55-58. an agent, merely, not authorized to sue, 56. otherwise if the contract is in his own name, 57. although the name of the principal is disclosed, 57. instances, 57. when there is no express trust, the principal may also sue, 58. extent of change made by the Code, 59. rule at common law, and instances, 59, and note, persons expressly authorized by statute, 60. joinder of plaintiffs, when permitted and when required, 61. joint obligees, and those who have a joint interest, must unite, 62. survivors only brought suit at common law, 62. whether the right be joint or several, 63. the assignee of one joint obligee may unite with the coobligee, 64. and so when a single obligee assigns a part of his interest, 65. tenants in common should join in an action to recover rent upon a joint de- mise, 67-69. action for use and occupation will not lie in such case, 69. they should sever upon a separate tender of rent, 67. joint tenants must always join, 67. coparceners should join at common law on a demise by the ancestor, 67. but in the United States are generally treated as tenants in common, 67. tenants in common in such demise may sever, 68. California Code authorizes joint or several actions, 69, note, distributees and legatees should join in an action against the executor, etc., if the fund is to be apportioned, 70. not necessary if each distributee, etc., is entitled to a specific sum, 70. 560 INDEX. PARTIES TO ACTIONS — ConHnued. in actions concerning sepiirate estate of mamod women, same rule holds as in actions ex delicto, 71, 34, 37. plaintitfs in actions for equitable relief, 72-81. joinder of those having a common interest, 73. instances in equity, 73. applied to demands called legal, 74, 75. instances as to such demands, 75. the equitable rule as to judgment facilitates the joinder, 74. the interests which govern the jninder, 76. those who are united in interest must join, 62. an unwilling plaintiff maj' be made defendant, 77, 78. the rule the same in actions for legal and equitable relief, 77, 78. when one may sue or defend for the whole, 79-81. all must have a joint or common interest, 70. the equity rule, as given by Story, 79. its application, 80. a part of a prize crew, 80. creditors against the personal representative, 80. members of :'. joint-stock company, 80. of a voluntary association, 80. tax-payers, when, 80, 81, and note, defendants in actions founded on torts, 82-89. in injuries by many, all are jointly and severally liable, 82. those who only counsel or aid are so liable, 82. but it must be their joint work, 83. instances where it is joint, and where not joint, 83. slander necessarily single, 84. for injuries by the wife, the husband liable, 85. but the action survives against the wife only, 85. if done in his presence, supposed to be by his command, 85. not responsible for injuries resulting from her separate property, 86. joint owners of laud jointly liable for neglect of duty imposed upon such owners, 87. but one satisfaction allowed upon judgments against tort-feasors, 88. no indemnity or contribution among them, 89. exceptions as to indemnity in favor of sheriffs, 89. of masters for negligence of servants, 89. of auctioneers, 89. of one who acts in good faith for another, 89. the rule by Best, J., 89, note. defendants in actions founded on contract, 90-95. the general rule — those who obligate themselves, 90. joint obligors must at common law be joined, 91, 92. who deemed such, 91. contracts of partners and joint-stock companies, 91. express words necessary to make it several, 91. implied obligations, when the facts apply to more than one, 91. the doctrine of survivorship as to joint obligations, 105, 92. its evasion in equity, 105. »• 561 INDEX. PAKTIES TO ACTIO'SS — Continued. joint obligations are made joint and several in Kentucky, Arkansas, Iowa, Mis- souri, North Carolina, and Colorado, 93. parties to instruments in writing, etc., may be joined in one action, 94. statutes in different states, 94. but a guarantor cannot be united with the maker, 95, and note, in Ohio an original guarantor held to be a maker, 95. all may be made defendants who are in privity. See Pkivitt. defendants in actions for equitable relief, 96. the general rule in equity, 96. the statutory rules, 97. they apply to actions for legal relief as well, 77, 78, 97. in actions concerning mortgages and liens, 98-104. in actions to redeem, 99. heirs and personal representatives of the mortgagee, 99. personal representative of mortgageor, 99. when assignee of equity of redemption should make the assignor a party, 99. subsequent mortgagees, creditors, and lien-holders to be made parties, 99. the latter may pay off previous liens and redeem, 99. if demand secured be assigned, when should assignor be made a party, 99. in actions to foreclose, 100-104. all interested in the equity of redemption, 103. as heirs, devisees, assignees, beneficiaries, 102, 100. personal representative, when interested, 102. prior incumbrancer, etc., proper, but not necessary party, 100. necessary if a complete title is to be given, 100. subsequept incumbrancers should be parties, 101. also, judgment-creditors and other lien-holders, 101. collateral mortgageor should be a party, 101. upon sale by mortgageor, when he is a necessary party, 102. when remainder-men and reversioners to be made parties, 103. parties in statutory foreclosure, 104. in suits against joint obligors, 105-107. equity makes each joint obligor responsible, and enforces contribution, 105. the representative of deceased coobligor compelled to contribute, 105. may be joined as defendant with the survivors, 105. mode of obtaining jurisdiction in equity, 105. reasons why this rule should b^ adopted under the Code, 106. the statute in Kentucky, Arkansas, Missouri, and Iowa, 108. decisions elsewhere generally adverse to the joinder, 107, and notes. opinions examined, 107, notes, in suits for specific performance, 108, 109. the original parties the only parties, 108, 109. the heir, devisee, and personal representative of vendor and vendee to be made parties, 108. neither to be made parties unless they have an interest, 108. outstanding titles not to be investigated, 109. but assignees of vendor, after contract of sale, to be made parties, 109. multifariousness by improper parties, 110. whether one should be made plaintiff or defendant, 111. 562 IKDEX. PAETXERS. must jiiin in actions nffccting the partnership estate, 24. in slander and libel to the partnership business, 26. surviving partner must set out the death of copartner, 265. same in suing a survivor, unless the obligation is made several, 265. PAYilEXT. to be specially pleaded, 357. allegation of non-payment not traversable, 357, 358. otherwise in California, 358, and note 2, p. 419. PETITION. See Complaint. PLACE. See Venue. PLEADING BY COPY, in certain states, a copy of the instrument sued on may be filed with a statement of indebtedness upon it, 306. construction of this provision, 306, 307. the essential facts must appear, though by copy instead of averment, 308, 807. PLEADINGS. detinition,of, 135. they include demurrers, 135. a pleading stating facts includes a proposition of law, 136, 137. the logical formula, 187. object of written pleadings to ascertain the real issue, 138. they should not raise an issue upon facts not disputed, 138. this end not secured by common-law pleadings, 139. consist of the complaint or petition, 143. See Complaint. the demurrer. See Demurkbb. the answer. See Answer. the reply. See Eeply. PKESUilPTIONS OF LAW. they are not to be pleaded, 175. consideration presumed in sealed instruments, 175, 268. also in negotiable notes and bills, 175, 268. also by statute, in certain other writings, 175, 269. good character presumed, 175. innocence of crime presumed, 175. of fraud, 175. capacity to contract, 175. that one is free, 175. that he is not indebted, or a bankrupt, 175. PRIVITY. should be shown in actions upon contract, 234-245. meaning of the term, 234. different kinds of, 235. privity of blood and representative, 235. of estate and of contract, 235, 236. between landlord and tenant at common law, 236. statutory privity, 237. none between owner and adverse holder of land, 238, 245. the exception, 248. 563 INDEX. 'PRTVITY — Cmiinued. as to acceptor supra protest of a bill, 239. statutory, in favor of assignees of non-negotiable contracts, 239. arising from receipt of money for use of the plaintiff, 241, 242. or from promising a third person to pay him, 241, 242. from accepting a devise conditioned, 242. from the implied contract to provide for one's family, 243. ■when a tort is waived and a contract charged, 244. PROCLAMATIONS. will be judicially noticed, 185. See Jtidicial Notice. PROJUSE. See Implied Contkacts; Assumpsit; Statbmbitt. RECEIVER, may sue in his own name, as trustee, 263. but must plead the facts showing his title, 263, note 2, p. 311. for invalid appointment, demurrer lies for want of capacity to sue, 409. distinction between, and assignees in bankruptcy as to title, 409, and note 4, p. 487. RECITAL. facts not to bo given by way of recital, 318. • RECOUPMENT. See Counter-claim. REDUNDANT MATTER, to be struck out on motion, 423. not necessarily irrelevant or frivolous, 214. statement of evidential facts is redundant, 423, 424. so are unnecessary counts, 423. and matter in one count making more than one ground of action, 423. how to treat statements not necessary to a single cause of action, note 1, p. 509. instances of redundant matter, 423. unnecessary words to be treated as surplusage, if not stricken out, note 5, p. 510. as to redundant matter in answers to be stricken out, 424. answers not to contain evidential matter, 424. duplicity involves redundant matter, 424. RELIEF, lang'uage of Code, 159. upon default of answer, the plaintiff confined to the relief asked, 160. appearance by demurrer will not authorize greater relief, IBO. upon answer, entitled to any consistent relief, 161. the general prayer unnecessary, 161. one who seeks equitable relief and fails may have a money judgment if the facts stated warrant it, 162. but the case must be tried by court or jury, according to the relief which is sought, 163. the different kinds of relief prayed for must be consistent, 164. the verdict should not be for more than the pleader claims, 165. unless the pleading showed facts which warrant the verdict, 165. in actions for equitable relief full relief should be given, 166-171. the equitable rale in such cases, 166. the obligation increased under the Code, 167. the judicial view, 168, 169. same in Missouri, 170. objections to the Missouri view, 171. 564 INDEX. RE:\r.\TXDER-:MAN OR REVERSIONER. mi\y sue for a permnnent injury to the land, or such as affects his interest, 22. also as to personal property, 23. but if the one in pmseision recover? the full value, he cannot sue, 23. should be a party in actions to foreclose mortgages, 103. REPLY. when and in what states required, 393. the statute, 393. now assignment, is it still allowed, 394. what at common law, 394. to defenses of fraud in, or loss of, negotiable paper, 395. failure to reply only admits matter really new, 393. plaintiff may waive a reply — the practice when, 396. REPRESENTATION. when one may sue or defend for the whole, 79-81. See Parties to Actions — plaintiffs in actions for equitable relief. REPUGNANCY. defined, and where usually found, 315. REVERSIONER. may sue for a permanent injury to the land — a=:, by cutting down trees, 22. so as to personal property, if the injury affect his interest, 28. should be part}' in actions to foreclose mortgages, 103. SEDUCTION. the action is by the master or parent for loss of service, 28. the person seduced has no right of action, 28. if she be a minor, the loss of service presumed, 28. if not a minor, very slight service will suffice, 28. in certain states the person seduced is authorized to sue, 30. in certain states the parent or guardian may sue, although there be no loss of ser- vice, 30. SEPARATE PROPERTY. See Married Woman. SEP ABATE STATEMENT. causes of action in one pleading to be separately stated, 119. in general, each statement must embody a new cause of action, 119. when there are two causes of action and but one relief, 120, and notes. each statement to be complete, 121. to affect each party, 123. to be consistent, 122. See Joinder of Causes of Action. SET-OPE. See Counter-claim. SHAM PLEADING, defined as good in form, but false in fact, 422, and note 2, p. 507. practice at common law, 422. sbam answers to be struck out in certain states, 422. in other states common-law practice believed to prevail, 422. denials not treated as sham, 422. SHERIFFS, responsible for acts of deputies, 83. 565 INDEX. SKERIFFS—ConHnued. otherwise in Massachusetts, 83. entitled to indemnity from the execution-plaintiff, 89. are officers of state, and their existence and signatures will be judicially noticed, 195. SPECDFIC PEEPOKMANCE. parties in actions for, 108, 109. See Pabties to Actiom — defendants in actions for specific performance, previous outstanding titles not adjusted, 109. interests subsequent to contract are passed on, 109. ■when sought as a defense in ejectment, 349-351. STATEMENT, THE. general considerations, 148-158. the introductory words, 148. classification — as, inducement and gist, 149. what is matter of Inducement, 150. allegations of incorporation, 150. of phiintiffs' or defendants' representative character, 150. of extrinsic facts in slander and libel, 150. when charged with a duty resulting from a particular character or capacity, 150. as to fictitious allegations, 151-158. on principle, only the facts that constitute the cause of action should be stated, 151. the fictitious promise not to be stated, 152. in waiving a tort, how are the facts staled, 153-155. See 2 381, note 8. origin of the right to waive the tort, 151. some English cases cited, 151, note 1, p. 197. no contract in fact assumed, 151, note 1, p. 199. the implied agreement in torts inconsistent with the Code, 151, and notes, different ways-to indicate the intention to waive the tort, 155. as to permitting the common counts, when they do not show the true foundation of ■■ the action, 156, 157. one who has wholly performed a special contract may sue on an implied promise, 157. this view inconsistent with the requirement to file the agreement or a copy, 156. may do the same when its full performance has been prevented, 157. this view not inconsistent, 156. matters may still be pleaded according to their legal effect, 158. this not a fiction, 158. STATEMENT — RULES GOVEPvNING- IT. what should not be stated, 174-215. facts which the law presumes should not be stated, 175. See Pkesumptions or Law. facts necessarily implied not to be stated, 175. See Implied Facts. facts not to be stated of which the court will take judicial notice, 177-199. certain statutes alluded to in New York and California, 181. See Judicial Notice. ' one should not anticipate a defense, 200, 205. See Defense not to be Antici- pated. evidence should not be pleaded, 206-209. See Evidenci! not to be Pleaded. 566 INDEX. STATEMENT — RULES GOVEKINU IT — Continued. conclusions of law not to be pleadoa, 210-213. Soo Conclusions of Law. no unnocossnry or imiHTtineiit fftct to be stated, 214, 215. See Irrklkvancy; Rt;iit'XP.V.NT ilATTER; SritPLUSAGE. ■what facts must be stated, 220-2^7. must show title, 221-2:^':. See Title to Property. in actions on contract, must show privity, 234-245. See Privity. the legal existence of a corporation must be shown, 240-260. See Corporation. authority of persons suing or sued in representative capacity, 261-267. See Trus- tees ; AssiGN-EE ; Keceiver ; Executors and Administrators ; Partners ; Joint Obligations aud Rights; JIusuand and Wife; Guardian, and Com.mittees. consideration must be shown, 268-279. See Consideration. as to showing insuflBciency of ordinary relief in seelcing other relief, 280, 281. See Equitable Relief. when time and place to be truly stated, 282-287. See Ti.me; Place. as to the manner of stating facts, 288-319. the statement must not be double, 288-295. See Duplicity ; Multifariousness. facts should be stated with certainty, 296-312. See Certainty. statutory exceptions, 301-307. See Conditions Precedent; Judgments; Statutes; Libel or Slander; Pleadlng by Copy. other exceptions, 308-312. consideration, when to be alleged generally, 308. inconvenient particularity unnecessary, 309. instances, 309. less required when the facts are better known by the other party, 310. instances, 310. less required in matter of inducement, 311. as to allegation of acts embraced by the statute of frauds, 312. modification of the old rule by the requirement to file contracts or copies, 312. rule repudiated in certain states, 312. every statement should be direct and positive, 313-318. See Ambiguity; Re- pugxan-cy ; Negatives Pregnant ; Hypothetical Pleading ; Recital ; Uncertainty. facts to be stated in plain and concise language, 319. the old formulas abolished, 319. also details in equity pleading, 319. STATUTES, what will and will not be judicially noticed, 181-184. See Judicial Notice; Laws. exceptions in, to be pleaded, 202, 203. a proviso to be left to the defendant, 202, 203. private, may be pleaded by referring to title and date, 184, 304. they will then be judicially noticed, 184, 304. the provision refers only to domestic statutes, 304. foreign, to be pleaded where contract to be enforced according to, 287. STATUTE OF FRAUDS, whether matter of defense, merely, 204. rule as to pleading contracts covered by, 812, 354. modified by certain statutes, 312. 057 INDEX. STATUTE OF 'F'R&XrDS — Coniinued. not to be pleaded as a defense, but on denial plaintiff must show a legal contract, 353. in Iowa the pleading must show the contract to be in writing, otherwise demur- rable, 415. demurrable in equity, if shown to be obnoxious to the statute, 353. STATUTE OP LIMITATIONS. plaintiff should avoid its elfoot, 205. otherwise, if the period is shown to have expired, the pleading is demurrable, 205, 355, 414. ordinarilj', the statute to be pleaded, 355. in ejectment not pecessary, except in certain states, 356. STATUTE OP USES. bargain and sale, executed by, must show consideration, 278. also covenant to stand seized to use, 278. SUB.JECT OP THE ACTION. meaning of the phrase, 126, 373. cases which recognize this meaning when applied to counter-claims, 374, and notes, when applied to joinder of causes of action, 126, note. this meaning rejected in New York, 126, note, 375. SUKPLUSAUE. not synonymous with redundant matter, 215. distinction between the terms, 215. will be disregarded by the court, 115. if to be stricken out, is called redundant, 215. is not surplusage if it cannot be stricken out and leave sufficient sound matter, 215. SURVIVORSHIP. See Abatement by Death. as to survivorship of joint rights, 62. rights of each joint obligee survives to the survivor at common law, 62. not so in equity, 62. TIME, when material, must be stated, and truthfully, 282, 283. instances, 283. TITLE OP THE COMPLAINT OE PETITION, must show the court in which the action is brought, 143. and the county in which it is triable, 144. the only venue in transitory actions, 144. must show the names of the parties, 145. the full names to be given, 145. in partnerships, all the parties are named, 145. except when authorized by statute to sue or be sued in partnership name, 145. the title should show the relation of those who sue or are sued in a representative- capacity, 145. the true name must be given, 146. practice where the name is unknown, 147. TITLE TO PROPERTY. the complaint or petition must show, 221-233. how described in real actions, 222-226. 568 INDEX. TITLE TO 'P'ROF'E.RTT— Continued. in the writ of right, 222. in ejectment at common law, 222. in statutory actions in the several states, 223-226. title not shown in Ohio, Missouri, Kansas, and Nehraska, 223, and note, provisions as to, in New York, 224. in Indiiina, "Wisconsin, Iowa, Oregon, and Arkansas, 225, and note. in Kentucky, California, North Carolina, South Carolina, Nevada, and Minne- sota no express provision, 226. title to realty in other actions, 227-229. in trespass, raised by plea of liberum tenementum, 227. 80 in an avowry, in distress damage feasant, 227. modified in certain states, 227. the heir, in enforcing a forfeiture, must show title of ancestor, 227. not to be shown between landlord and tenant, 228, 229. otherwise between the assignee, heir, or executor of the lessor and the tenant, 228. in trespass quare elausum not necessary, 229. general ownership of personal property only to be stated, 230. title to choses in action, how shown, 231-233. one not an original party must show his title, 232. when title reverts, indorsements may be stricken out, 232. when title must be traced through the indorsements, 232, note 2. as to the mode of alleging title, 233, 176. TORT, may be waived when, 13, 130, 154, 15, 16. the right based upon a fictitious promise, 154. parties in actions for, 20-44, 82-89. See Pabties. when both a contract and legal duty, one may bring an action of tort or «iip on the contract, 14. applied to carriers of passengers and goods, innkeepers, attorneys, physicians, skilled mechanics, 14. causes of action arising from, may be united, except, etc., 129. from injuries to character, to be united, 131. in treating it as a contract, how the facts to be stated, 153, 155, 381, and note 3. from what is the right to so treat it derived, 154, and note, no implied agreement can upon principle arise from, 154, and notes, no privity in, 240. TEESPASS. upon land is an injury to the possessor, 22. title need not be shown in, 227. but the issue of, may be raised in a plea of liberum tenementum, 227. also in an avowry as to cattle distrained damage feasant, 227. TREATIES. will be judicially noticed, 185. See Jubiciai, Notiok. TRUSTEES OP AN EXPRESS TRUST, who are, 54. may sue in their own name, 52, 54, 262. must protect the separate trust estate of a married woman, 35. must show the facts which create the trust, 2J2. not necessary if contract sued on is made with the trustee, 262. 569 INDEX. TRUSTS AND TKUST ESTATES, the plaintiff in actions to protect tlie separate trust estate of a married woman, 35, 37, difference between separate trust estate and separate estate by statute, 35-37. who are trustees of an express trust, 54. See Paktibs to Actions — plaintifff in actions ex coniractu. express trusts defined, 54. TAX-PAYERS, when proper to unite, may be represented by a part, 80. pro and con as to whether tax-payers on distinct parcels may unite to prevent an illegal assessment, or other act rendering a future assessment necessary, 80, and note 1. as to whether they may unite to prevent a public wrong, 81-. the distinction between an ordinary illegal act and one that must result in increased taxation, 81. TENANTS IN COMMON, must join in personal actions in trespass, 24. but not if the injury does not affect all, 24. must sever in real actions, 26. rule in ejectment, 25, and note 3, pp. 26, 27. may join under the Code, or sever, 25. should all join or all sever, 25. otherwise in Missouri, California, and Nevada, 25. liable for a duty imposed upon them as owners of land, 87. UNCERTAINTY, pleadings to be made definite and certain by order, 425. want of, ground of demurrer in California, Nevada, and Colorado, 425, 415. pleading may be good on demurrer, and still uncertain, 425. citations of cases, when it is so held, note 1, p. 514. VENUE. the common-law venue obsolete, 284, 296. the court and county to be shown in the title, 144. no other venue designated in transitory actions, 144, 296. in local actions the venue must be shown, and trulj', 284-286. what are local actions, 284-286. when place material in enforcing contracts, 287, 296. WASTE. who could sue for, at common law, 30. others, as authorized by statute, 30. 570