^ ^ i1 1 ^ ^:wm;\ ^:m. ' ^ pfV"! f. r- rr rr 1 rr ,rr 1 \ El 11 ^^ 1 Jl. ^ rrn I rr <|tft of Siymatt 3^. Milaon Prnfeasnc, Cflornrll JCam ^rtjoal, 1921-1951 ^teSSISfendofme Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024508123 A QUIZ COMPEND OF THE PRINCIPLES OF COMMON LAW PLEADING BASED UPON STEPHEN ON PLEADING BY CHARLES A. GROOM (OF THE CINCINNATI BAR) CINCINNATI THE W. H. ANDERSON COMPANY LAW PUBLISHERS B^^^ COPYEIGHT BY THE W. H. ANDERSON CO., 1906. PREFACE THE object of this work is to set forth the general principles of the foremost treatise on the subject of pleadings at common law in the fewest words possible and as nearly in the order that each step should be taken as convenience will admit. The purpose of the book is to place before the student an orderly and concise outline of the subject for ref- erence and review. C. A. G. Cincinnati, January 17, 1906. A Quiz Compend of the Principles of Common Law Pleading Based upon Stephen on Pleading. COURTS. 1. King's Bench. Originally the King's Bench, had jurisdiction of crim- inal actions alone, but later acquired jurisdiction of all personal actions. Present jurisdiction extends over crimes and personal actions. 2. Common Pleas. Originally the Common Pleas had exclusive jurisdic- tion of real, personal and mixed actions between subject and subject. The present jurisdiction is exclusive in real and mixed actions, but concurrent with the King's Bench and Exchequer in per- sonal actions. Has jurisdiction only of real, personal and mixed ac- tions. 3. Exchequer. Originally the Exchequer had jurisdiction only in mat- ters pertaining to the royal revenue, but later ac- quired jurisdiction of all personal actions. Present jurisdiction extends over revenue and personal actions. TERMS OF COURT. 1. Hilary. Began January 3rd. Ended February 12th. 2. Easter. Began Wednesday fortnight after Easter Sunday, and ended the Mondey next after Ascension Day. 3. Trinity. Began Friday next after Trinity Sunday, and ended the Wednesday fortnight after. b QUIZ COMPEND OP COMMON LAW PLEADING. 4. Michaelmas. Began October 9th. Ended November 9th. Return Days. There were four general return days in each term, except Easter, in Which there were five. An original writ could be returned only on a general return day. REAL ACTIONS. 1. Right. For the specific recovery of corporeal hereditaments claimed in fee simple. No general issue. 2. Formedon. For the specific recovery of lands and tenements claimed as issue in tail, remainderman, or rever- sioner upon the determination of an estate tail. General Issue. Plea of We dona pas or non dedit. Under which may be proven merely a denial of the making of gift in tail in the manner and form alleged. 3. Dower. An action by a widow for the specific recovery of her dower, when no part of it has yet been assigned to her. No general issue. 1. Quare Impedit. For the recovery of a right of presentation to a benefice. General issue. Plea of Ne disturba pas. Defense under this plea is confined to a simple de- nial of the defendants' obstructing the presen- tation. PERSONAL ACTIONS. EX CONTRACTU. 1. Debt. For the recovery of a sum certain in money. a. On a specialty, or contract under seal. QUIZ COMPEND OP COMMON LAW PLEADING. i General issue. Plea of Non est factum. Under which, may be proven: 1. Non-execution of the instrument. 2. That the instrument is void in law on account of alteration, or was executed by a married woman, an infant, or person of unsound mind. 6. On a judgment. General issue. Plea of Nul tiel record. Under which may be proven non-existence of the record alleged. c. On a simple contract. General issue. Plea of Nil debet. Under which may be proven any matter showing present non-existence of the debt, as well as release, satisfaction or arbitrament, and the statute of limitations. Exception. Tender, which requires a special plea. 2. Covenant. For the recovery of damages for breach of a contract under seal whether tbe sum be certain or uncertain. General issue. Plea of Non est factum. Same defenses as debt on a specialty, which see. 3. Assumpsit. For the recovery of damages for breach of a simple con- tract, whether the same be express or implied. a. General assumpsit. An action on a contract implied in law. A quasi-contract. 6. Special assumpsit. An action on an express promise or contract. General issue. Plea of Non assumpsit. Under which may be proven: 8 QUIZ COMPEND OF COMMON LAW PLEADING. 1. No promise made or that circumstances were such that the law would not imply a promise. 2. That the promise was not valid according to law. 3. Generally' anything tending to negative present liability. Exceptions. Discharge in bankruptcy or insolvency, tender and refusal to accept, statute of limita- tions, release, performance or set-off which should be specially pleaded. EX DELICTU. 1. Trespass. For the recovery of damages as the result of a direct in- jury done with force, actual or implied, to the per- son or to tangible corporeal property, a. Vi et armis. Actual injury to the person. 6. Quare clausum fregit. Damage to real property. c. De ionis asportatis. Damage to personal property. General issue. Plea of Not guilty. Under which may be proven: 1. A denial of the trespass alleged, which is also allowed in (6) and (c), even if the defendant did commit the particular act alleged, but is not guilty as to the particular plaintiff on account of the fact that the property was not in plaint- iffs' possession, or not lawfully in plaintiffs' possession as against the defendant's better right. Matters of excuse or justification were not al- lowed to be proven under this plea; such defenses should be specially pleaded. QUIZ COMPEND OF COMMON LAW PLEADING. 9 2. Trespass on the Case. For the recovery of damages for injuries committed with- out torce, or with fores where the injury is purely consequential, as through negligence, or to intan- gible property or property not in the actual pos- session of the complainant. General issue. Plea of Not guilty. Any defense showing no present right of action could be proven under this plea, subject to the following exceptions: Exceptions. Contributory negligence, statute of limitations and justification in slander or libel. 3. Trover. For the recovery of the value of personal property as damages tor its conversion. Based on the fiction that defendant found the property and refused to return it after demand made therefor. General issue. Plea of Not guilty. Under which may be proven all defenses subject to the following exceptions: Exceptions — Release, statute of limitations, that the plaintiff was not the owner or had not the right to possession. 4. Replevin. For specific recovery of personal property wrongfully ta- ken and wrongfully detained, together with dam- asv's for the wrongful detention. General issue: Plea of Non cepit. Under which may be proven: 1. Denial of the talking. 2 Denial of the taking or having the goods in the place alleged. 10 QUIZ COMPEND OP COMMON LAW PLEADING. 5. Detinue. For specific recovery of personal property rightfully ob- tained but wrongfully detained, or its value, to- gether with damages for wrongful detention. General issue: Plea of Non detinet. Under which may be proven: 1. Denial that the plaintiff has any property rights in the goods. 2. Denial that defendant detains the goods. 6. Ejectment. An action in the nature of trespass in which damages are claimed by a tenant for a term of years on account of forcible ejection and under which recovery of the land itself was allowed as collateral relief. This action took the place of Right and Formedon. No general Issue. MIXED ACTIONS. Mixed actions are those which partake of the qualities of both real and personal actions, and therefore are not property reducible to either class; such as actions for the recovery of lands, tenements or hereditaments, together with damages for injuries thereto. All actions except replevin were originally commenced by original writ. PROCEEDINGS IN AN ACTION ACTIONS ARE COMMENCED BY. 1. Original Writ. Used originally to commence an action In the King's Bench and Common Pleas Courts. Purposes of an original writ. 1. Authority to Institute suit. 2. Authorized the court to entertain the action. 3. Commanded the defendant to appear and defend the action. QUIZ COMPEND OF COMMON LAW PLEADING. 11 An original writ is a mandatory letter obtained from the Court of Chancery. 1. Issued in the King's name. 2. Under the great seal. 3. Directed to the sheriff of the county in which the cause of action allegedly arose. 4. Contained a summary statement of the cause of action. 5. Commanded the sherift to require the defendant to satisfy the claim, and on refusal, to summon him to appear in court and account for non-compliance. An original writ, with an account of the manner of serv- ice indorsed thereon, must be returned into court on a regular return day in term time. 2. Bill. •Actions in the Exchequer were commenced by bill, and finally in the King's Bench and Common Pleas per- sonal actions might be so commenced, by fiction, in the following instances: (o) Founded on the privilege of the defendant. 1. Against an ofBcer or prisoner in the King's Bench and an ofiicer of Common Pleas. 2. Against an accountant or officer in the Exchequer. In each instance, since the defendant was already in court, no original writ was deemed necessary to give the court jurisdiction or enforce appearance. In the Exchequer all officers of court and all persons who had revenue accounts therein were deemed in court. In the Common Pleas such privilege applied to of- ficers of the court alone. In the King's Bench, if the defendant was not an officer of the court, he was arrested on a fictitious charge of trespass, and being thus brought into court, the bill was filed against him. The ju- dicial process for arrest was called a bill of "Middlesex and latitat;" the arrest, however, in the latter-day practice was also a fiction. The service on such bills was returnable on any day in term time except Sunday or a holiday. 12 QUIZ COMPEND OF COMMON LAW PLEADING. (6) Founded on the privilege of the plaintiff. 1. By an officer of the King's Bench or Common Pleas in the court be served. 2. By an officer of the Exchequer and by the King's debtors, or accountants, in the Exchequer. In the King's Bench and Common Pleas, an officer, by virtue of his office, was accorded the privilege of commencing his action without first obtaining an original writ. In these instances the appearance of the defendant was obtained by means of a judicial writ in the nature of a bill of "Middle- sex and latitat" called an "Attachment of Privi- lege" which was returnable in the same man- ner as the Middlesex. In the Exchequer an officer was accorded the privi- lege of commencing actions without original writ and compelling appearance of the defendant by a judicial writ called a "Yenire facias ad respon- dendum" and "capias of privilege" ; likewise the King's accountant or debtor could commence ac- tions by similar writ called a "Quo Minus"; this latter course of commencing actions was countenanced by the Exchequer on the theory that such plaintiff was less able to pay the King's revenue on account of the defendant's withholding the relief to which such plaintiff deemed he was entitled. If the plaintiff was not actually an accountant, the bill contained a fic- titious allegation that he was such. The process in all these cases, unlike the original writ, was returnable on any day in term time except Sundays and holidays. 3. Praecipe. Actions at common law, of the real, personal and mixed classes, were originally commenced by original writ, and if the defendant failed to appear upon service and return of the original, the proper manner of en- forcing appearance was to cause the issue of a judicial writ, or writ issuing from the court in which the QUIZ COMPEND OF COMMON LAW PLEADING. 13 original had been returned, called a "capias ad re- spondendum" or "capias." Finally the practice of suing out the original fell into disuse, and a mere draft of the original, called a "Praecipe," was drawn and filed by the attorney with the clerk of the common law court, whereupon the "capias" issued at once and the defendant was served. In all such instances the defendant could, if he so desired, demand that an original writ be sued out, which, when done, was allowed to be filed in the action, and acted retrospectively. Thus it will be seen that actions at Common Law were com- menced. 1. By suing out an Original Writ. 2. By filing a Bill. 3. By filing a Prsecipe. The object of each being, primarily, to obtain service on the defendant and compel, finally, his appearance. Appearance. Appearance was — 1. Personal — as by voluntarily attending in person or being arrested and brought into court. 2. By attorney, in lieu of voluntary appearance in persor . Appearance by attorney could be made only by a regularly admitted practitioner. Pleadings. After appearance the pleadings of course commenced. The pleadings are the statements of the parties' claims or defenses, and were originally delivered orally in Nor- man-French, and called "Loquela." The object of pleading being to produce an issue, or dis- puted point for decision. An issue is "a single, certain, material point affirmed on one side and denied on the other." 14 QUIZ COMPEND OF COMMON LAW PLEADING. Pleadings always purport to be delivered in term time. Record of Pleadings. During the time pleadings are being delivered, they are supposed to be copied on the court rolls, called the "Record." Continuance. For certain causes proceedings might be adjourned from term to term. When this v?as done by order of court first obtained, the cause was said to be continued, and an entry of the fact was put in the record. Discontinuance. If there was an interval without authority or record of same, the case was discontinued or out of court. 1. The first pleading is filed upon the appearance of the de- fendant and is called — (o) Declaration in Personal Actions, and, (6) Count in Real Actions. The next pleading is the — 2. Plea. Pleas are — (a) Dilatory. (B) Peremptory. A. Dilatory pleas are (a) To the jurisdiction of the court over the subject matter or person. (&) In suspension of the action (Parol Demurrer). Shows some ground for not proceeding with the suit at present, such as infancy. If sustained, the result of this plea is to suspend further proceedings until the disability is removed. (c) Abatement of the writ. (1) For disability of the plaintiff, such as, that the plaintiff is an alien. In this instance the prayer is not that the writ be quashed, as in other cases, but asks judgment "whether the plaintiff ought xo be answered." QUIZ COMPEND OF COMMON LAW PLEADING. 15 (2) For disability of the defendant or privilege suci. as precludes right of action against him. (3) To the count or declaration. Such as a variance between the writ and the count or declaration. Affects the writ only by con- sequence of the variation. (4) To the writ. (a) To the form of the writ on account of misno- mer, mis-joinder, or non-joinder of parties. This plea arises on account of matter de hors the writ. (6) To the form of the writ on account of matters apparent on the face of the writ. Such as a writ defective in substance or containing era- sures or improper additions. (c) To the action of the writ such as defective service, pendency of another action, etc. The effect of a plea in abatement is merely to defeat the present action, and allows the plaintiff the right to file a better writ or bill, if the matter was strictly in abatement, or to proceed with an action when the disability is removed, if in suspension. B. Peremptory pleas (in bar) are 1. By way of traverse; that is, a denial of the matters alleged in the declaration. Traverses are (1) General issue. A short, set form of words allowed by usage. (See actions.) Does not follow exact terms of pre- vious pleading. (2) Common Traverse. An exact and specific denial of each material alle- gation as it appears in the previous pleading. (3) Special traverse. Contains an inducement of new matter followed by an absque hoc and an exact denial of the alle- gations of the previous pleading as the same appear therein. 16 QUIZ COMPEND OF COMMON LAW PLEADING. Pleas by way of traverse always tender issue; i. e., propose a method of trial, except the common travei-se, which concludes with a verification and is an exception to the rule that "upon tra- verse issue must be tendered." 2. By way of confession and avoidance. 1. In justification and excuse — which attempt to show that the plaintiff never had a right of action, because the defendants' acts were lawful; such as a plea of son assault demesne. 2. Discharge — which attempt to show that the right has been released by some matter subsequent, as payment, limitation, or release. All pleas in confession and avoidance must confess the right set up by the plaintiff, but avoid it by new matter of either justification, excuse or discharge. The confessing of such right is called "Colorable" when not a genuine confession. Color is. 1. Express. — Feigned matter expressly set forth by the defendant from which the plaintiff seems to have a good cause, whereas, in fact, he has only an ap- pearance of right. 2. Implied. — That which arises from the very nature of the defense, as by admitting the facts but deny- ing their sufficiency to constitute a legal right of recovery by alleging further facts. Pleas by way of confession and avoidance do not tender issue, but conclude with a verification, and conse- quently put off the issue at least one step. Pleas should be pleaded in the following order. 1. To the jurisdiction of the court. 2. In disability of the person of the plaintiff. 3. In disability of the person of the defendant. 4. To the declaration or count. 5. To the form of the writ on account of matter apparent on its face. 6. To the form of the writ on account of matter de hors the writ QUIZ COMPEND OF COMMON LAW PLEADING. 17 7. To the writ on account of the action thereof. 8. By way of traverse or confession and avoidance; i. e., in bar. Extraordinary Plea. Plea puis darreign continuance. If, after a continuance is granted, the defendant dis- covers some new matter of defense which has happened since the granting of the continuance, he may, at the end of the continuance, plead this matter by substituting a new plea for the pre- vious one. Pleas are always founded on matters collateral. Replication or second pleading of the plaintiff. May contain — 1. A traverse of any new matter set forth in defendant's plea. 2. A confession and avoidance of any new matter set forth in defendant's plea. 3. New assignment — if, by reason of the declaration being in very general terms, the defendant is not sufllciently guided as to the real cause of com- plaint and is therefore led to plead to a differ- ent matter than that the plaintiff had in view, the plaintiff may re-assign in his replication, by particularly setting forth the exact cause of ac- tion, for the purpose of forcing the defendant to plead to it. 4. Traverse "de injuria." In trespass or trespass on the case where the defendant pleads such matters as self-defense, or justifies his trespass under some authority, the plaintiff may traverse such plea by replication "de injuria sua propria, abs- que tali causa," which tenders issue. In assault and battery, if defendant pleads self-defense, such replication would be that the defendant of his own wrong started the fight, or if the defendant justified his trespass, by authority of law, the plaintiff might reply that he exceeded his authority. This form of traverse appears only in the replication. 18 QUIZ COMPEND OF COMMON LAW PLEADING. Rejoinder. The rejoinder or second pleading of the defendant may contain either a traverse or a confession and avoid- ance of the matters alleged in the replication. 8ur-re joinder. The sur-rejoinder or third pleading of the plaintifE may be either a traverse or confession and avoidance of matter contained in the rejoinder. ReTyutter. The rebutter is the third pleading of the defendant and follows the same rule, except that it must present some defense to matter in the sur-rejoinder. Siir-reiiitter. The sur-rebutter is the fourth pleading of the plaintifE and is in answer to the rebutter. Sur-sur-rebutter, etc. The pleadings after the sur-rebutter follow the same rule, being matters of traverse or confession and avoidance of the previous pleading, and are merely designated by an additional "sur" each time until an issue of fact is produced or a demurrer is inter- posed. Demurrer. In effect a demurrer is a statement that, admitting the facts alleged in the previous pleading to be true, as therein stated, there is no cause shown why, in law, the party demurring should be compelled to proceed further, i. e., that the pleading demurred to does not state facts sufficient to constitute a cause of action or defense. Demurrers are. 1. General — A general demurrer is an objection that the substance of the previous pleading does not state a cause of action or defense, without specifying why it does not do so. QUIZ COMPEND OF COMMON LAW PLEADING. 19 2. Special. A special demurrer is an objection to the form of the previous pleading and must specify with particu- larity wherein it is defective. A demurrer admits all matters of fact sufflciently pleaded. A demurrer, as it is said, "searches the record," and the court will give judgment thereon against the party who first filed a defective pleading, regard- less of which filed the demurrer. A general demurrer attacks matters of substance and searches the record on matters of substance. A special demurrer objects to some specified formal de- fect In the previous pleading and as to form goes no further, it does not search the record as to form or affect matters of form not specified, but, like the general demurrer, covers all matters of substance in the record and for matters of sub- stance searches the record with like eifect as a general demurrer. Matters of form will be disregarded if passed over with- out- demurrer. Matters of substance, if not cured, are not waived by failure to demurrer, but can be taken advantage of afterward. A demurrer is founded only on matter appearing on the face of the pleadings and never on matters collateral. ISSUE. An Issue is a single, certain, material point affirmed on one side and denied on the other. Issue of Law. An issue of law arises on demurrer and presents a dis- puted legal question for trial. Issue of Fact. An issue of fact arises on a traverse and presents a dis- puted question of fact for trial. 20 QUIZ COMPEND OP COMMON LAW PLEADING. JOINDER IN ISSUE. Joinder in demurrer. Upon a demurrer the opposing party has no choice, but must join In the issue of law tendered by such de- murrer, since there is but one mode of trial for dis- puted questions of law. Similiter. A traverse must tender an Issue, that is, propose a method of trial, and if the method of trial proposed is appro- priate to the action, the opposing party must join in the issue so tendered. The set form of words by which the issue is accepted is called a "similiter." However, If the traverse proposes an Inappropriate method of trial, the opposing party may demur. Record. As soon as an issue is produced, a record, or orderly statement of the various steps in the action, is made up and delivered by the attorney for the party ten- dering issue to the opposing counsel for his inspec- tion, and upon his approval such record Is returned into court; if the record be incorrect, the proper course is to apply to the court to have the same cor- rected. These records are the exclusive evidence of the judicial transactions therein contained, and comprise all steps in the case, including the various continuances and warrants of attorney. Demurrer Book. The record on demurrer Is called the demurrer book. Issue or Paper Book. The record on an issue of fact is called the issue or paper booh In the King's Bench and the issue In the Com- mon Pleas. ENTERING THE ISSUE. When the issue, paper book or demurrer book is returned into court as correct. It is entered upon the rolls of the court. QUIZ COMPEND OF COMMON LAW PLEADING. 21 Issue Roll. The record, when, finally entered upon the rolls of court, is called the issue roll. Amendments. If at any time before judgment a party conceives that he has made a mistake in his pleadings, he may re- quest the court, by a motion, for leave to amend, which will be granted, if the court, in its sound discretion, concludes that it is proper and in furtherance of justice. TRIAL OF ISSUES. Issues of Law. Issues of law, arising on demurrer, are always tried by the court, consequently the proper course, when the issue is made up and entered, is to move for a "con- cilium," or day when the court will hear the argu- ments of counsel. When a concilium has been granted and the day set, the attorneys appear in court and argue the demurrer, and the judges then or thereafter pronounce their judgment thereon. If the judgment is for the party demurring, the demurrer is said to be sustained, and in theory the party demurring should be entitled to judgment; this, however, seldom occurs in practice, since the court usually, on application, grants leave to amend the pleading demurred to. If the judgment is against the party filing the demurrer, the demurrer is said to be overruled, and in theory a judgment should be granted the opposing party on his pleading; in practice, however, the demurrant, on application, is given leave to plead further. Thus it will be seen that in cases where a party has ad- ditional facts to plead to cure the defect complained of, or the demurrant has a defense in fact, the actual effect of a demurrer is merely to delay the pleadings until after the demurrer is decided, and that there- upon the pleadings again continue until an issue of fact is produced. 22 QUIZ COMPEND OP COMMON LAW PLEADING. Issues of Fact. Issues of fact always arise upon traverse and were origi- nally tried in various ways, as by "wager of law," "wager of battle," "certificate," "inspection," "jury," etc. Of tbe various modes of trial, that by "Jury" alone survives. Venire of Facias. When the parties have mutually referred the issue to a jury, i. e., have put themselves "upon the country," there is entered upon the record an "award" of trial by jury. This "award" directs the issue of a "venire of facias," or command to the sheriff of the county where the facts are alleged to have occurred to summon a jury. Thereupon such writ of venire is sued out and the jurors are directed to be summoned thereby into the "superior court," or court in which pleadings have taken place. However, the cases are seldom tried in the superior court, but usually in the court of "Nisi Prlus," or court in the county to which the writ of venire is issued, and is presided over by persons ap- pointed by the Crown for such service. When the case is to be tried at nisi prius, the usual course Is to Issue with the venire another writ for com- pelling the attendance of the jurors, called In the King's Bench a "Distringas" and in the Common Pleas a "Habeas Corpora." When this Is done, a transcript of the issue roll or paper book is made up, ( called the "recordjof nisi prijis," which is sent to the/ judge of nisi prius for his guidance, and the case isi then ready for trial by the jury under the supervision of such judge. A jury at common law was composed of twelve men. Before proceeding with the trial and its incidents we will notice the INCIDENTS OF PLEADING. 1. Demand of View. After the demandant had counted, or, in other words, filed his first pleading, in real or mixed actions, the QUIZ COMPEND OF COMMON LAW PLEADING. 23 tenanl had the right to demand a view of the land claimed in order to ascertain its identity with that in his possession. The view being granted, upon re- turn into court the plaintiff or demandant was re- quired to plead de novo; i. e., declare again. 2. Voucher to Warranty. A warranty is a covenant real, appearing in deeds, whereby the warrantor covenants and agrees to defend the title against all claims and is thereby bound to defend the same, and, in case of eviction, to give the tenant lands of equal value. The voucher to warranty is the calling the warrantor into court by the tenant to defend the title when the tenant is sued. When the voucher is made, the warrantor either volun- tarily appears or is brought in by a "summons ad warrantizandum" and takes the place of the tenant originally sued, whereupon the plaintiff counts or files his declaration de novo. The time of filing the voucher is after the defendant has filed his plea. Applies only to real and mixed actions. 3. Demand of Oyer. Where either party alleges a deed, he is generally obliged to make "profert;" i. e., produce it in court simulta- neously with his pleading; when this happens, the other party, before he pleads, is entitled to hear it read verbatim; that is, to have "oyer." Oyer is de- mandable in actions real, personal or mixed, of deeds, probates and letters of administration, but not of private writings not under seal. Oyer can be de- manded only when "profert" is made. When no profert is made, the proper course is to demur. You are not obliged to demand oyer or after oyer to notice the deed in your pleadings, except when you allege a variance between the instrument and the contents of the same alleged in the pleading making profert. If a variance occurs, you should set forth the instru- ment verbatim in your pleading. 4. Prayer of an Imparlance If a party found he was not prepared to answer his op- ponent's pleading, he should pray for further time 24 QUIZ COMPEND OF COMMON LAW PLEADING. to do SO, which was granted on the theory that the parties go out and talk over the matter and endeavor to settle the same; this is called an imparlance. This, it" granted, is cause for a continuance, and is grantable in all actions. When made by a defendant before plea imparlances were — (o) General. Which deprived the defendant of demand of oyer or view, or of pleading to the jurisdiction or in abate- ment. (&) Special. It defendant desired to save the privilege of using any of the foregoing, he asked for an imparlance, reserving the right to plead some one of them, called a "special imparlance." (c) General special-. If defendant desired to afterward plead without re- striction, he asked for an imparlance saving him "all advantages and exceptions whatsoever," called a "General special" imparlance. Counter-pleas. If you deemed that your opponent had not set forth suf- ficient cause in law for the granting of the incident demanded, the proper course was to demur, and, on the other hand, if you had some fact you could plead showing cause, in fact, why he should not have the incident, the proper course was to "counter-plead" to the oyer, view, etc. The side issue thus raised would proceed to issue the same as the main point and be tried accordingly before further proceedings would be had in the main branch of the action. Before noticing the "incidents" of pleading we have ob- served that issues of law, arising on demurrer, are tried by the court and judgment given thereon, and have carried a case to an issue of fact, made up and entered the issue, and prepared a record for nisi prius, together with the "venire of facias" for impaneling a jury, and issued the writ of "distringas" or "ha- beas corpora" to compel attendance of the jurors, and have transmitted the nisi prius record to the justice QUIZ COMPEND OF COMMON LAW PLEADING. 25 Of assize and nisi prius, so that we are now ready to proceed with the course of the — TRIAL BY JURY. Trial by jury takes place under the supervision of the judge or judges, who decide all matters of the ad- mission or exclusion of evidence, conduct of the parties and attorneys, and jurors, and charge or di- rect the jury on matters of law arising at the trial. The case is opened by a short statement to the jury by the attorneys for each side; the evidence of witnesses is then heard; counsel address the jury next; the judge gives his charge and the jury then render their verdict, which must be unanimous. The verdict is usually in general terms "for the plaintiff" with the amount of damages, if damages are prayed for, or "for the defendant." In arriving at their verdict the jury are — 1. To consider nothing but the question in issue. Under this head comes the doctrine of Variance. If the testimony offered varies from the statements made in the pleadings, there is a variance. Such disagreements between the allegations and the proof, if on a material point, is fatal to the party whose evidence varies. Immaterial matters and matters of mere form, are, however, to be disregarded. 2. The jury are bound to give their verdict for the party, who, upon the proof, appears to have estab- lished his side of the issue. 3. The burden of proof of the issue is, generally, upon him who asserts the affirmative of such issue. The burden of proof always rests upon the party against I whom judgment would go if no proof were offered./ If the party having the burden of proof upon him fails to prove his side of the issue, the jury are to con- sider that the opposite side, or negative, of the issue is proven, and give their verdict accordingly. 26 QUIZ COMPEND OF COMMON LAW PLEADING. VERDICT. As we have seen, verdicts are usually 1. General. That is, for the plaintiff or for the defendant in general terms. But may be 2. Special. The jury have an option, instead of finding in general terms for the plaintiff or for the defendant, to set forth the facts of the case as disclosed by the evi- dence and conclude that they "are ignorant, in point of law, on which side they ought, upon these facts, to find the issue; that if, upon the whole matter, the court shall be of opinion that the issue is proved for the plaintiff, they find for the plaintiff accordingly, and assess the damages at such a sum, etc.; but if the court are of an opposite opinion, then vice versa." This is called a special verdict. The jury in fact have nothing to do with drawing up the facts, but on report that they have agreed to find specially, they merely declare themselves on the facts In doubt and the verdict is framed by the attor- neys under the supervision of the judge. This special verdict is entered on the record in due form and the question of law, thus arising, is decided by the court in banc (court of law from which the plead- ings emanated) in the same manner as a demurrer. On the decision of the court In banc either party. If dissatisfied, Tnay prosecute error. The Jury can not be required to render a special verdict, it being entirely optional with them. General Verdict Subject to a Special Case. The special verdict caused the court in banc, i. e., the court from which pleadings were sent down to nisi prius, to pass on the case, and their judgment was review- , able on proceedings In error. If, however, the object ! of the parties is m.erely to have the court In banc pass on the question, and nothing more, the proper course QUIZ COMPEND OF COMMON LAW PLEADING. 27 is to take a general verdict subject to a special case; that is, a general finding by tbe jury either for plaint- iff or defendant with an added written statement of the facts, drawn up by the attorneys in the same manner as the special verdict, for the court in banc to pass upon. The party obtaining the verdict in his favor was not entitled to judgment until after the court in banc had passed upon the special case stated. This, unlike the special verdict, was not entered upon the record and was not the subject of error. The judgment of the court in banc could not in this instance he reviewed. Demurrer to the Evidence. As we have seen that the jury could not be compelled to render a special verdict, and that the judgment of the court in banc on a general verdict subject to a special case, could not be reviewed on error, because not entered on the record. If a party desired to compel the court to pass on the evidence, when he deemed it insufficient to sustain his opponent's side of the issue, his only course was to demur to the evidence. A demur to the evidence is analogous to the ordinary demurrer, since the party demurring de- clines to proceed further because the evidence of the opposing party is insufficient to sustain the issue. It is filed at the close of your opponent's evidence. Upon joinder in demurrer the jury is dismissed and not required to render a verdict. The demurrer is entered upon the record and ultimately decided by the court in banc and such decision is re- viewable on a writ of error. Postea. When a verdict is rendered it is drawn up in proper form by the successful litigant or his attorney and entered upon the back of the nisi prius record and is called the "postea." The record, with the postea inscribed thereon, is then transmitted back to the superior court or court in banc and the case is ready for judgment. 28 QUIZ COMPEND OF COMMON LxVW PLEADING. Pour days, however, must elapse before judgment can be given. Proceedings after verdict. During this period the unsuccessful party may take the following steps to avoid the effect of the verdict. Move the court — 1. To grant a ne^c trial. A party may be dissatisfied with the opinion of the nisi prius judge rendered during the trial, regard- ing the effect or admissibility of evidence, or may deem the evidence against him insufficient in law, and yet not have obtained a special verdict, de- murred to the evidence or tendered a bill of ex- ceptions. Under these circumstances he may move for a new trial on one or more of the following grounds: a. The judge having misdirected the jury. 6. Admitted or refused evidence contrary to law. c. That the verdict is contrary to the evidence — or that the evidence is insufficient in law to sup- port the verdict. d. That the verdict is contrary to the weight of the evidence. e. That new and material facts have come to light, since the trial, which the party did not know and had no means of proving before the jury. f. That the damages assessed are excessive. g. That the jury misconducted themselves. The granting of a motion for a new trial is entirely within the sound judicial discretion of the court and is not reviewable except for flagrant misuse or abuse of discretion. When a new trial is granted a new jury process or venire issues and a new jury is impaneled and the case is tried de novo. 2. Arrest of judgment. If the verdict is in favor of the plaintiff, the defendant may move to have the judgment arrested, on the ground that there is error apparent on the face of the record. This motion can not be made for QUIZ COMPEND 01' COMMON LAW PLEADING. 29 errors of form and must be directed against errors in the record, sucti as, that the plaintiff, on exam- ination of the whole record, has not stated a causo of action. 3. Judgment non ohstante veredicto (notv/ithstanding the verdict). If the verdict is for the defendant, and during the course of the pleadings the defendant has filed some pleading in confession and avoidance which suffi- ciently confessed hut did not contain legal matter of avoidance, and the plaintiff, instead of filing a demurrer, had traversed, the plaintiff, after verdict might move lor a judgment without regard to the verdict, since the defendant had confessed his cause of action without avoiding the result of such con- fession. 4. Motion for a repleader. If the unsuccessful party, on examination of the record, ■conceives that the issue joined was an immaterial issue, i. e., on a point not proper to decide the action, he may then move for a repleader. The issue heing on an immaterial point, the court can not know for whom to render judgment, and will therefore grant a repleader; i. e., order the parties to plead de novo for the purpose of producing a better issue. 5. Venire of facias de novo (a new writ of venire). If the jury has been improperly chosen or has given j an uncertain or ambiguous verdict, or a defective l verdict, the unsuccessful party may move for a ^ new venire or new jury to be drawn to hear the cause, which is in effect a new trial. When the required four days have passed and all of the motions last above mentioned are overruled, the next step is for the court to render judgment in accord- ance with the verdict. Judgment Roll. Such judgment is then drawn up in due form, usually by the attorney for the successful litigant, and entered upon the record, which record is then called the "judgment roll." 30 QUIZ COMPEND OF COMMON LAW PLEADING. JUDGMENTS. Judgments vary according to the nature of the plea, issue, and the result of the judgment rendered. 1. Judgments for plaintllf. (a) On a dilatory plea. Respondeat ouster, i. e., that the defendant answer over; upon such judgment the pleadings continue in the usual form to issue. (&) Upon an issue of law or fact. Quod recuperet; i. e., that the plaintiff do recover. Judgments quod recuperet are of two kinds — (1) Interlocutory. If the action is for the recovery of damages, and not for specific recovery of lands, goods, or specific sums of money, and the issue is one of law, not tried hy jury, the judgment is merely that "the plaintiff ought to recover his damages." Such judgment is interlocutory, since the matter of as- sessing damages is not within the province of the court. Upon such judgment a "writ of inquiry" issues to the sheriff of the county in which the facts are alleged to have happened, commanding him to "inquire into the amount of damage sus- tained by the oath of twelve good and lawful men of his county," and to return such inquisi- tion into court. Upon such return the piaintitt is entitled to another and final judgment that he do recover the amount of the damages so as- sessed. (2) Final. If an issue of fact he tried hy a jury and at the same time they assess the damages, the final judgment is at once rendered on the verdict without such writ of inquiry. Judgments of the last class may be also for the recovery of specific lands or tenements, goods or specific and certain sums of money, either with or without dam- ages for detention, as the jury may find; these also are final, but where such actions are decided on issues of law, the judgment, if damages are prayed for. QUIZ COMPEND OF COMMON LAW PLEADING. 31 is interlocutory until after the return of the writ writ of inquiry to assess such damages for detention. 2. Judgments for defendant. (a) On a dilatory plea. Quod hreve (or billa) cassetur; i. e., that the writ (or bill) be quashed or that the pleadings go without day. This is a judgment defeating the particular writ or bill, but allows the plaintiff to sue out a new writ or bill, or that the suit be suspended until the disability be removed. (6) On a peremptory plea or demurrer, when plaintiff does not amend after demurrer is sustained. Nil capiat per breve or Milam; i. e., that the plaintiff take nothing by his writ or bill and that the de- fendant go hence without day. Judgments not upon the decision of an issue. 1. Default judgment. If in a real or mixed action the defendant holds out against process, 'judgment may be given the plaint- iff for default of appearance. Such judgment is in- terlocutory. 2. Nil dicit; i. e., nothing said. If in personal, real or mixed actions the defendant ap- pears, but either party thereafter at any time neg- lects to plead, judgment is given against such per- son failing to plead for want of plea. This judg- ment is also interlocutory. 3. Non sum informatus ; A. e., no information. If the defendant's attorney says he is not informed of any plea or answer to give, judgment is given against him by non sum informatus. Also inter- locutory. 4. Judgment by confession. A party may at any time confess his opponent's right and judgment is then given by confession. Bars further action. 5. Confession relicta verificatione ; i. e., by confession upon withdrawing his allegations. 32 QUIZ COMPEND OF COMMON LAW PLEADING. A party may at any time withdraw his plea or other allegations and confess his opponent's right, where- upon judgment goes against him as above. Bars further action. 6. Non pros, from non prosequitur; i. e., he does not pur- sue. If the plaintiff does not declare, reply, surrejoin, etc., or does not enter the issue, judgment may be taken against him for not prosecuting his action. Car- ries costs. No bar to a further action. 7. Nolle prosequi; i. e., will no further prosecute. No bar to further action. If the plaintiff, at any time after appearance and be- fore judgment, says that he will not prosecute the action further, judgment of no further prosecution is entered against him. After jury is impaneled it can not be entered without consent of defendant. 8. Retraxit; i. e., he has withdrawn. Bars further action. This judgment is rendered when the plaintiff with- draws his suit after declaration. This must be done personally by plaintiff and can not be entered by plaintiff's attorney, and is a bar to further ac- tion. 9. Cassetur 'breve or billa; i. e., that the writ or bill be quashed. No bar to a further action. On a plea in abatement, the plaintiff himself, before action thereon by the court, may pray that his writ or bill be quashed that he may present a better one. 10. Nonsuit. No bar to a further action. If on trial by jury the plaintiff fails to appear, upon being demanded and called, to hear the verdict pro- nounced, no verdict is rendered, but a judgment of nonsuit is entered against the paintiff. So also if, after issue is joined, the plaintiff fails to bring such issue to trial in due time, judgment "as in case of nonsuit" will be entered against him. When the judgment is by default, confession, etc., and not after an issue, the record including the judg- ment is for the first time made up and entered upon the roll. QUIZ COMPEND OF COMMON LAW PLEADING. 33 Execution. When a final judgment has heen entered the successful party is entitled to a writ of execution to carry his judgment into effect. If for the plaintiii, he, of course, is entitled to have exe- cution to carry into effect the relief granted, to- gether with costs. If for the defendant, he is entitled to execution for his costs. Writ of error. After the judgment is entered the losing party either before or after execution may resort to a proceeding in error commenced by suing out a "writ of error" from Chancery. If the writ of error is resorted to before execution, it suspends execution. A writ of error is sued out of the court of Chancery and is directed to the judges of the court rendering the judgment, commanding them either to examine the record themselves in cases of error coram nobis or to send it to a court of appellate jurisdiction, in cases of errors of law, to be there examined for the purpose of correcting alleged errors. Such writs are of two kinds — 1. Writs of error "coram noiis or vobis." Here the error alleged is a matter of fact and the court rendering judgment reviews the record. 2. Writs of error generally. Here the error alleged is a matter of law, and the record is sent to a court of appellate jurisdiction. When a writ of error is sued out the whole course of the proceedings is entered upon the record and the re- viewing court can only consider, subject to some slight exceptions hereinafter mentioned, matter ap- pearing in such record. The court can not consider matters which, if they had heen pleaded, would have varied the judgment, since only matters in issue and of record can be considered on proceedings in error, except such facts as would 34 QUIZ COMPEND OP COMMON LxVW PLEADING. affect the validity or regularity of the judgment, such as — 1. The defendant, being a minor, appearing by attor- ney instead of by guardian. 2. That the plaintiff or defendant was a married woman at the time of instituting suit. These are errors, however late discovered, sufficient to maintain a writ of error coram nobis, since they are facts rendering the judgment invalid and not mistakes of law by the judges, and consequently the court rendering the judgment may pass upon the matter, since it will not thereby be reviewing its own mistakes. When the error is one of law, the general writ of error is proper, and not the writ of error coram nobis, since the latter writ would only compel the same judges to review their own judgment, while the for- mer, or general writ of error, carries the record into some other court to be there examined and cor- rected. Upon writs of error generally (for mistakes of law), the reviewing court is bound to examine the whole rec- ord and then adjudge for plaintiff or defendant as the legal right of either may appear from all mat- ters contained therein, without regard to the issue raised by the parties, since some material point of law may have been overlooked, and thus passed over by the parties, which in itself is sufficient to decide the case. If upon the whole record right appears not to have been done, there is error in law. Immaterial errors will be disregarded, and errors not of record will not be considered, since the judges rendering the judgment are supposed not to have considered them and there- fore did not make a legal mistake according to the record. For errors of law, that is, on writs of error generally, the records are carried up as follows: 1. From the Common Pleas to the King's Bench, and then by new writ of error to the House of Lords. QUIZ COilPEND OF COMMON LAW PLEADING. 35 2. From the Exchequer to the Court of Exchequer Chamber, composed of the Lord Chancellor, the Lord Treasurer and the judges of the King's Bench and Common Pleas, thence by new writ of error to the House of Lords. 3. From the King's Bench, in proceedings by bill, to the Court of Exchequer Chamber, composed in this in- stance of the Barons of the Exchequer and the judges of the Common Pleas, thence by new writ of error to the House of Lords. In proceedings by original writ the case did not go through the usual course, but was taken at once to the final court of appellate jurisdiction, the House of Lords. RULES OF PLEADING. SECTION ONE. Rules tending merely to the production of an issue. Rule 1. After the declaration the parties must at each stage demur or plead by way of traverse or by way of confession and avoidance. A litigant has but two courses to pursue; he must demur or plead until issue is produced. Demurrer. Demurrers are (a) Special, or on the ground that the pleading de- murred to is defective in point of form. The law requires all pleadings to be in proper legal form. Should be used only as to defects of form. (6) General, or on the ground that the pleading de- murred to is defective in point of substance, such as that It does not state a cause of .action or de- fense. Under the special demurrer the pleading may constitute a cause of action or defense in point of substance, and yet be defective in point of form, and is called special because the particular defect or defects must be set forth therein specifically, since under a statute 36 QUIZ COMPEND OP COMMON LAW PLEADING. the courts must disregard all errors of form not spe- cifically pointed out and objected to. The general demurrer, since it objects generally that no cause of action or defense is shown, does not require specific statements of defects, and, when appropriate, is usually adopted, since it does not apprise the op- ponent of the distinct nature of the objection, and thus enable him to prepare his argument or to amend at an earlier date. Effect of demurrer. A demurrer admits the truth of all matters of fact suf- ficiently pleaded. The matter must be sufficiently pleaded according to the rules of law, however, to be admitted upon demurrer; conclusions of law not being proper pleading, are therefore examples of mat- ters not admitted. A demurrer "searches the record," as it is said; that is, the court, on demurrer, will look over the whole record of the pleadings and render judgment for the party who, upon the whole record, appears in law to be entitled to it. This rule applies only to matters of substance, and not to form, for, unless matters of form are objected to by special demurrer before filing further pleadings, they will be disregarded thereafter. Therefore, the general demurrer searches the record con- cerning matters of substance, and the special de- murrer searches the record for substance and also attacks the particular pleading demurred to concern- ing the defects of form specifically designated and set forth therein, but as to form goes no further. The rule that the court, on demurrer, will search the record and give judgment for the party appearing to be entitled thereto is subject to two exceptions, (a) On demurrer by the plaintiff to a plea in abate- ment, if the court sustain the demurrer, and thus decide against the plea, they will give judgment of respondeat ouster (that the defendant answer) re- gardless of any defects in the plaintiff's declaration. (6) That although, on the whole record, right appears to be on the part of the plaintiff, the court will QUIZ COMPEND OP COMMON LAW PLEADING. 37 not give him judgment unless he has himself put his action on that basis. Effect of pleading over without demurrer. As has been hereinbefore stated, passing by matters of form without demurrer is a waiver of such formal defects. If the pleader passes by a defect in substance without filing a demurrer, and his own subsequent pleadings or those of his adversary contain matter supplying the omitted tacts or rectifying such defect, the fault is thereby cured, and can at no later time be taken advantage of. So, also, if the fault of substance or form is such as to be fatal on demurrer, if taken, yet if an issue be joined of such character as would necessarily require proof of such fact so defectively alleged or omitted, and without which no verdict could have been given by the jury, or be directed to be given by the judge, such defect is finally cured by a verdict of the jury. In other cases, passing by a defect of substance without objection by demurrer is not a waiver of such defect, and the pleader can take advantage of the same at any time before judgment by filing a demur- rer to some subsequent pleading, and thereby causing the record to be searched for defects, or after verdict by a motion in arrest of judgment or a motion for judgment non obstante veredicto, as the case may be. Matters of substance, except as above stated, are never cured before judgment by passing them by. Matters to ie considered before electing to demur or plead. (a) If the defect is in form only, it must be objected to at once, otherwise it will be taken as waived. (&) If the defect is as to substance and the pleader is certain that his opponent can not plead facts, by way of amendment, which will cure the defect or supply the omission, the better course is to file the demurrer at once and thus bring the case to a speedy termina.ion at his opponent's costs, (c) On the other hand, if by demurrer the pleader will apprise his opponent of some defect or omission of 38 QUIZ COMPEND OP COMMON LAW PLEADING. substance which such opponent would be able to cure, upon the same being made known to him upon the argument of such demurrer, the better course is to plead over, being careful not to cure such defect or supply such omission in his own pleadings, and take the chance of his opponent dis- covering and curing the defect, since, if the defect is not cured, the party passing over such defect can, after verdict, move in arrest of judgment oi move for judgment non obstante veredicto if the jury finds against him. This course gives the liti- gant two chances of success, as the jury may find in his favor, and if they do not, he has his remedy, as above stated, by motion. Upon such motions, however, judgment does not carry costs, since the party could have had his remedy, by demurrer, at an earlier date, and thus avoided the subsequent expense of trial, etc. PLEADINGS. 1. Nature and properties of traverses. Sufficient has been said heretofore, in the general portions of this work, concerning the traverse and its nature and properties, so that a few general remarks will here be sufficient. (a) A traverse should not be taken upon matter of law. (b) If the matter alleged is mixed of law and fact, it may be traversed. (c) It is Improper to traverse matter not alleged; subject to this exception that matter, though not expressly alleged, yet necessarily implied, may be traversed. (d) A party to a deed, desiring to traverse it, must plead the general issue, non est factum, and not that he did not grant, etc. This rests on estoppel, since a party' may well say the instrument is not his deed; while, on the other hand, if he should deny its effect or operation, it would be contradicting his own deed. 2. Nature and properties of pleadings by tvay of confession and avoidance. Pleas by way of confession and avoidance are of two classes. QUIZ COMPEND OF COMMON LAW PLEADING. 39 1. In justification and excuse; the effect of which is to show that the plaintiff never had a right of action, hecause the act charged was lawful. 2. In discharge; the effect of which Is to show tha^, although a right of action once existed, it is re- leased or discharged by some subsequent matter. This applies to pleas only, since subsequent pleadings of this nature can not be classified. A confession and avoidance must conclude with a verifica- tion and prayer for judgment. Pleadings in confession and avoidance must give color; that is, must admit or confess an apparent right in the opponent, but avoid such right by new matter. Color is an apparent or prima facia right of action. Color is of Two Kinds. (a) Express; i. e., feigned matter pleaded by a defendant from which the plaintiff seems to have a good cause of action, when in fact he has but an appearance of cause or right of/action. (6) Implied, or that which arises from the very nature of the defense itself, inherent in the pleading, grow- ing out of an admission of facts adversely pleaded. 3. Nature and properties of pleadings in general. 1. Every pleading must answer the whole of what is ad- versely alleged, except matters of aggravation or mat- ters wholly immaterial. 2. All traversable matters not expressly denied will be taken as admitted. Matters of law, not being tra- versable, are an example of matters not admitted by being disregarded. To come under the operation of this rule the matter must be traversable. Exceptions to the rule that a party must demur or plead iy way of traverse or confession and avoidance. 1. Dilatory pleas, being founded on matters of form, do not confess or deny the allegations of the declaration. 2. Pleadings in estoppel, which do not admit or deny the matters adversely alleged, but pray judgment whether the adverse party should be excluded from alleging such facts on the ground that he is estopped by some previous act or words. 40 QUIZ COMPEND OP COMMON LAW PLEADING. 3. New Assignment. A new assignment occurs only in tlie replication, anri, is neither a confession nor a denial, but is meroly a more specific re-statement of the cause of action set forth in the declaration, caused by the fact that such declaration is in such general terms that the defendant has been led to answer some other cause, of a similar nature, than that intended by the plaintiff, thereby causing the plaintiH to set the defendant right by new assigning the particular act intended to be sued on. Occurs usually in actions for assault and battery 'nd trespass, where several different and distinct acK have been committed. Rule II. Upon a traverse issue must be tendered. That is, upon traverse a method of trial mubt he pro- posed varying according to the mode of trial de- sired. When trial by jury is proposed by the plaintiff, it is in the following form: "And this the said A. B. prays may he inquired of iy the country," and by the -ie- fendant by the words "And of this the said C. D. pu'^ himself upon the country." Exception. Special traverse, on account of containing new matter, concludes with a verification and prayer for judg- ment. Rule III. Issue well tendered, must be accepted. That is, issue must be joined when properly tendered, (a) This Is done by similiter on tender of an issue of fact; (6) And by joinder in demurrer on tender of an issue of law. Issue must, however, under this rule, be well tendered, for, if the traverse he bad or the mode of trial be inappropriate, you are not obliged to file a similiter, but may demur. QUIZ COMPEND OF COMMON LAW PLEADING. 4i- However, on issues of law, since there is no demurrer upon a demurrer, issue must be accepted whether well or ill tendered. SECTION TWO. Rules which tend to secure materiality of issue. General Bule. All pleadings must contain matter pertinent and material. That is, that frivolous and extraneous matters must be eliminated. Subordinate Rules. I. Traverse must not he taken on an immaterial point. That is, the pleader should not traverse matters of aggravation or premature allegations. But where there are several material allegations, the pleader may traverse which he chooses. II. Traverse must not te too large, nor, on the other hand too narrow. That is, a traverse will be defective which denies more than is adversely alleged, or, on the other hand, which denies less than is adversely alleged. Exception. — Generally, material allegations of title may be traversed to the extent alleged, although the title need not have ben alleged to that extent. SECTION THREE. Rules which tend to produce singleness or unity of issue. Rule I. Pleadings must not be double. Duplicity in general. A declaration must not allege several distinct demands in one connected statement. The object of the rule being to produce singleness of issue, it does not, therefore, preclude the use of "counts," or separate and distinct statements of the cause of action in order to avoid an insufficient statement, or joining in one declaration several demands, by the use of separate and distinct statements of the several causes of action. The rule merely precludes stat- ing several distinct causes of action as one demand. 42 QUIZ COMPBND OF COMMON LAW PLEADING. Plea and subsequent pleadings. In regard to pleadings subsequent to the declaration, the rule means that none of them shall contain several distinct answers to the whole of that which is adversely alleged, since, if it were otherwise, several issues would result from a single claim. However, if the petition contains several distinct causes of action, the plea may contain a separate answer to each claim, subject to this restriction, that If one matter would alone be a sufficient de- fense to several or all of the separate adverse de- mands, it should be used as to those demands it answers. So where there are several defendants, each may file his separate defense or join with others in the same plea at his discretion. Subordinate Rules. 1. A pleading will &e double that contains several an- swers, whatever be the quality or class of the answer. Meaning that several matters in abatement or bar can not be joined in one, nor can a pleading be filed containing matter of both abatement and bar, nor can matter of traverse and confession and avoidance be combined, nor several matters in confession and avoidance, nor several answers by way of traverse. 2. Matter may suffice to make a pleading double, though it be ill pleaded. That Is, if the matter be such that a material issue might have been taken upon it, no matter how insufficient in law the statement may be, it will suffice to make the pleading double. 3. Matter immaterial can not make a pleading double. No issue can be taken on immaterial matter, con- sequently such matter does not cause duplicity. 4. No matter will make a pleading double that is pleaded only as necessary inducement to another allegation. That is, the pleader may set forth matters necessarily introductory, in order to explain further facts on which he relies for defense. QUIZ COMPEND OF COMMON LAW PLEADING. 43 5. No matters, hoioever multifarious, loill operate to make a pleading douile that together constitute tut one connected proposition or entire point. Meaning that, if the point be single, though com- posed of or involving several facts, the various facts may be pleaded to complete the point, since this will produce but a single issue. A traverse of this nature is termnd a "cumulative traverse." 6. A protestation loill not make a pleading douMe. A protestation being merely used, in a special trav- erse, to reserve to the party pleading the right of denying or alleging the same matter in a fu- ture suit, does not produce an issue, and can not, therefore, cause duplicity. Rule II. It is not allowable both to plead and to demur to the same matter. You must make your election of one or the other course, since to use both modes of defense to the same matter at the same time would produce two issues, one of law and one of fact, upon the same point. This rule applies only to pleading and demurring to the same matter, and does not preclude the prac- tice of pleading to one count or one plea and de- murring as to another, when separate and distinct statements are resorted to. The rule means only that one can not both demur and plead at one and the same time, and does not preclude the filing of a plea, by leave of court, after a demurrer is overruled. SECTION FOUR. Rules which tend to produce certainty or particularity In the issue. Rule I. Pleadings must have certainty of place. That is, some certain place inust be stated as the place of occurrence for each traversable fact. The place is called the "venue" of the action. As to venue, actions are 44 QUIZ COMPEND OF COMMON LAW PLEADING. (a) Local, such as concern or relate to real prop- erty or an estate or interest therein, in which the true venue, or place where the cause of action arose, must be laid or stated, since such actions must be there tried. (6) Transitory, in which the facts alleged might have happened at any place, as assault, etc., and in which the venue may be laid a sof the place in which the defendant is served with process, al- though the cause of action arose elsewhere. The place of service is called the "venue in the action," and even in this instance the venue in the action must be laid truly. In transitory actions venue is usually laid "under a videlicet;" i. e., a statement of the real place fol- lowed by the words "to wit," or "that is to say," and concluding with the venue in the action or place of trial. In form as follows: "In parts beyond the seas, at Paris, in France" (the true place), "to wit," at Wesitminister in the county of Middlesex (the venue in the action). Rule II. Pleadings must have certainty of time. In personal actions the time of day, month and year when each traversable fact occurred must be stated, and when a continuous act is mentioned, the period of its duration should be stated. (o) Time, like place, however, may be laid under a videlicit. (6) If time is not laid under a videlicit, it must be strictly proven. (c) A time inconsistent with the facts to which it re- lates should not be laid. (d) An intrinsically impossible time should not be laid. (e) If time forms a material element in the merits of a case, and a traverse be taken, the time as laid must be strictly proven, as it is then of the sub- stance of the Issue. QUIZ COMPEND OP COMMON LAW PLEADING. 45 Rule III. Pleadings must specify quality, quantity and value. In actions for injury to goods and chattels and on con- tracts relating to them, their quantity, quality and price should be alleged. In actions for recovery of realty or for Injuries to realty the quality, i. e., whether lands, houses, etc., should be stated and the quantity or amount set forth. Value should be stated in reference to current coin. Quantity, by the recognized measures of extent, weight or capacity. Quantity and value, like place and time, may be alleged under a videlicet, and need not be strictly proven when so alleged. However, a verdict can not be obtained for a larger quantity or value than is alleged. Quality, generally, is required to be strictly proven as alleged. Rule IV. Pleadings must specify tine names of persons. (a) Both plaintiffs and defendants must be described by Christian name ana surname; and if either have a title, as Earl,- etc., it must be used. Mistakes in this regard are the subjects of pleas in abatement. (6) Persons, not parties to the action, must be named truly when mentioned in pleadings, and the proof in this regard must correspond with the plea, under peril of a variance. Rule V. Pleadings must show title. That is, if some authority or right concerning real or personal property is alleged, the title to the prop- erty must be laid in the person claiming the same or in some other person from whom he derives his authority. So, also, if a person Is charged with liability concerning property, his title must be set forth, (a) Of alleging title in one's self or in some other whose authority one pleads. 46 QUIZ COMPEND OF COMMON LAW PLEADING. As against a wrong-doer, a possessory title is in general sufficient; i. e., some present interest superior to that of the defendant. Exceptions: Replevin and actions for recovery of real property in which full title should be al- leged. In alleging title to its full extent, it is generally sufficient, in cases of seizin in fee simple, to , allege that the party is so seized without show- ing the derivation or commencement of the estate, except where pleader alleges title in some one through whom he claims; in this instance he must show how It came to him. In particular estates, the commencement of the particular estate must be shown. As to derivation. If a party claims by inheritance, he must show how he is heir, and if by mediate, and not immediate descent, he must show pedigree. If the claim is by conveyance, the nature of the conveyance should be shown. The nature of the conveyance should be pleaded according to its legal effect, and not according to its form or words. If conveyance is such that no deed Is required, none need -be pleaded, even though one exists; but if conveyance is of the nature requiring a deed, the deed should be alleged. In actions of trespass to realty it is, in general, permissible to merely allege a freehold title instead of the title to the full extent. Such allegation is sufficiently sustained by proof of any freehold title whether in fee, in tail, for life or whether in possession or expectant upon the determination of an estate for years. (6) Alleging title in an adversary. In alleging title in an adversary, it is merely neces- sary to show a liability in the party charged, which is satisfied by an allegation of any estate which will support such liability or defeat his present QUIZ COIIPEND OF COJIMON LAW PLEADING. 47 Claim, since one is presumed to be Ignorant of the particulars of his adversary's title. No title in an adversary need be shown if he is estopped to deny title, nor in actions for rent. Title must be strictly proven as laid. Rule VI. Pleadings must show authority. If a party justifies his acts under a writ, warrant or any authority whatsoever, he must set it forth par- ticularly in his pleading, and should show that he pursued such authority. If the justification is under judicial process, it should be set forth with particularity that the act in ques- tion was by virtue of a certain writ or warrant, subject to these exceptions. (1) The cause of action in the suit in which process issued need not be stated. (2) If the justification is by an officer executing the writ, he is required to plead the writ, hut need not allege the judgment upon which it was issued, since he is by law obliged to execute the writ and can not question the judgment. (3) If the writ under which the officer justifies is of the class that should be returned, he must show that the writ was returned. Authority must be strictly proven as laid. Rule VII. In general, whatever is alleged in pleading, must be al- leged with certainty. In other words, loose and uncertain allegations should be avoided, since the law aims at certainty in is- sues, and certainty of issue can not be produced from uncertain allegations. Subordinate rules of certainty. (1) It is not necessary, in pleading, to state that which is merely matter of evidence. The object in pleading is to produce an issue or point to be tried, and evidence tending to prove the point is unnecessary until the time of trial. 48 QUIZ COMPEND OF COMMON LAW PLEADING. (2) It is not necessary to state matters of which the court takes notice ex offlcio. Matters, in other words, of which the court must take judicial notice, such as matters of law, public statutes and the like. (3) It is not necessary to state matters which loould come more properly from the other side. You need not anticipate your opponent's defense; he should do his own defending. Exceptions. Pleas in estoppel and the plea of alien enemy; in which you must remove by anticipation every pos- sible defense of your adversary. (4) It is not necessary to allege circumstances neces- sarily implied. To set forth matters already necessarily implied amounts merely to repetition. (5) It is not necessary to allege what the law will pre- sume. The law presumes innocence until guilt is shown, therefore it is not necessary, in an action of slan- der for calling a man a thief, for the plaintiff to aver that he is not a thief. The rule applies to all presumptions of law. (6) A general m,ode of pleading is allowed where great prolixity is thereby avoided. Thus, in an action for professional services and medicines for curing a defendant of disease, the defendant's plea was infancy; the reply was that the action was for necessaries generally, without specifying how each item became necessary, and this was held good, since it applied to each item, and to require a specific statement for each Item would merely cause a voluminous record. (7) A general mode of pleading is often sufficient, where the allegations on the other side must reduce the matter to certainty. If the action be on a bond to save the plaintiff harm- less and keep him indemnified, the defendant may plead non damnificatus (he is not injured) with- out specifying how he indemnified the plaintiff, because the plaintiff on reply can make the mat- QUIZ COMPEND OF COMMON LAW PLEADING. 49 ter certain by stating the thing or things omitted to be done. This in general produces certainty, of issue, since what is omitted to be done may be small, while what has been done may be com- posed of numerous acts, but one of which is the subject of complaint. (8) No greater particularity is required than the nature of the thing pleaded will conveniently admit. This rule applies when the quantity can not be conven- iently ascertained by weight, number or measure. Thus, in trespass against the owner on account of cattle coming onto plaintiff's property and eat- ing his corn, it could not be readily ascertained how much corn the cattle ate, and the plaintiff would not be required to specify with certainty. (9) Less particularity is required, lohen the facts lie more in the knowledge of the opposite party, than the party pleading. Applies to allegations of title in an adversary and to actions for breach of covenant when the defend- ant, on account of his position, has superior knowledge of the acts constituting his breach; in general the plaintiff may plead in general terms whenever his opponent, on account of his position, has superior knowledge. (10) Less particularity is necessary in the statement of matter of inducement or aggravation than in the main allegations. These matters are not the foundation of the action and consequently need not be stated with as great particularity as the principal grounds of action. (11) With respect to acts valid at common law, 'but regulated, as to the mode of performance, by stat- ute, it is sufficient to use such certainty of allega- tion, as was sufficient before the statute. The statute of frauds requires certain contracts to be in writing, which, before the statute, might have been by parol. In declaring on such contracts it is sufficient to state the contract without alleging that it is in writing. However, if the thing is 50 QUIZ COMPEND OF COMMON LAW PLEADING. originally made by legislative act and required by such act to be in writing, tbe pleading must contain an allegation that it is in writing. A will of lands is an instance of the latter. SECTION FIVE. Rules which tend to prevent obscurity and confusion in pleading. Rule I. Pleadings must not be insensible or repugnant. By insensible is meant unintelligible by omission of material words; by repugnant is meant that the several parts of the pleading, or the allegations therein, are inconsistent. Rule II. Pleadings must not be ambiguous, or doubtful, in mean- ing; and when two different meanings present them- selves, that construction shall be adopted which is most unfavorable to the party pleading, (o) Pleadings must be sufficiently certain to show the relation of facts with precision. Such as in a dec- laration for trespass to land or goods, the plaintiff must allege that the land or goods were his at the time of the trespass, or if the defendant pleads a release he must allege that the release concerned the thing mentioned, usually by use of some such expression as "the aforesaid" or "said" or "in the declaration mentioned." (6) Ambiguity. — A negative pregnant, or negative car- rying with it an affirmative, is ambiguous, (c) Pleadings are strictly construed against the pleader. Rule III. Pleadings must not be argumentative. The ultimate fact must be alleged and not the argument tending to establish such fact. Positive and direct allegations, and not inferential averments, are re- quired. Subordinate Rules. (a) Two negatives do not make a good issue. QUIZ COMPEND OF COMMON LAW PLEADING. 51 Two negatives make but an argumentative statement of the affirmative. (0) Two alfirmatives do not make a good issue. Ttie traverse should be a denial and not an affirma- tive statement by which it can be argued that the plaintiff has not the right because the de- fendant alleges that he has it. Illustration. — A plaintiff alleges that a party is seized in tail, the defendant pleads that the party is seized in fee. This is a denial of seizin in tail by argument only. Rule IV. Pleadings must not be in the alternative. You must use direct and positive statements and can not aver that either one thing or the other is true or has happened. Rule V. Pleadings must not be by way of recital, but must be positive in their form. Allegations by way of recital are introductory merely; matters you desire to rely upon for relief should be stated in direct form. You should not say it is "witnessed" that such a party granted, but should aver that such a party did grant, etc. Rule VI. Things are to be pleaded according to their legal effect or operation. Thus if a deed absolute is delivered with an agree- ment for re-conveyance to the grantor on payment of a loan, for which the deed was given as security, such deed is in effect a mortgage and should be pleaded as such. Rule VII. Pleadings should observe the known and ancient forms of expression, as contained in approved precedents. Thus in pleading the statute of limitations it should not be averred that the defendant "did not promise within six years," but the usual form, "the cause of action did not accrue within six years," should be used, and if the general issue be pleaded it should 52 QUIZ COMPEND OF COMMON LAW PLEADING. be worded according to the approved form. At common law the bar of the statute of limitations could not be taken advantage of by demurrer. Rule Vlli. Pleadings should have their proper formal commence- ments and conclusions. In framing pleadings the approved common law forms of commencements and conclusions, as established by precedent, must be followed. Rule IX. A pleading which is bad in part is bad altogether. If a pleading be defective in any material part, though the rest of such pleading be free from fault, the whole is open to objection by demurrer, and if the objection be good the whole pleading falls. SECTION SIX. Rules which tend to prevent prolixity and delay in plead- ing. Rule I. There must be no departure in pleading. A party can not desert the ground of action or defense taken in an antecedent pleading and resort to another. This applies to material allegation only, since a depart- ure on an immaterial point does not affect the issue in any manner. Rule II. Where a plea amounts to the general issue it should be so pleaded. Long records were not countenanced at common law, if the same result could be attained by equally effective but shorter pleadings, consequently, if the ^ plea amounted to a general issue that set form should be used rather than the longer specific de- nial of each allegation. Rule III. Surplusage should be avoided. That is, all unnecessary matter should be excluded from pleadings. QUIZ COMPEND OF COMMON LAW PLEADING. 53 (1) Matter wholly foreign to the cause should be ex- cluded. (2) Matters, though not wholly foreign to the cause, yet not required to he stated, should be excluded. Such as, matters of law, mere evidence, things necessarily implied, things of which the court takes judicial notice, etc. (3) Terse statements, allegations devoid of unnecessary words, should be adopted. Surplusage is not cause for demurrer, but is attacked by a motion to strike from the pleading. Surplusage should be avoided for another reason, important to the pleader himself. A pleader must prove what he alleges, con- sequently surplus allegations increase the burden of proving a case on the trial. SECTION SEVEN. Miscellaneous rules relating to pleadings in general. Rule I. A declaration should commence with a recital of the original writ. The commencement of the declaration in personal ac- tions consists of a short recital of the original writ, except in trespass on the case, in which instance it was sufficient to mention the action in general terms as "a plea of trespass upon the case, etc.," on account of the great length of such writs. In real and mixed actions it is sufficient to set forth simply a repetition of the tenor of the writ. This rule does not apply to proceedings by bill, since in such instances the declarations followed another set form. Rule II. The declaration must be conformable to the original writ. That is, the declaration, while more specific, must follow the general tenor of the writ. This rule is, of course, inapplicable in proceedings by bill, yet, since all forms of action were set at com- mon law, the general nature of the allegations must 54 QUIZ COMPEND OF COMMON LAW PLEADING. contorm to the particular expressions of such forms the same as if the writ had been actually issued. Rule III. The declaration should, In conclusion, lay damages, and allege production of suit. (o) In personal and mixed actions the declaration must conclaide that the injury complained of is to the damage of the plaintifE and specify the amount of damage. Personal actions are of two classes. (1) Those sounding in damages. (2) Those not sounding in damages. In the first class damages are the main relief de- manded, while in the latter some liquidated debt or chattel is specifically demanded as the main cause of action and damages are merely asked for detention of the same, usually in a small amount. Damages greater than prayed for can not be re- covered. In real actions no damages are laid because the only relief desired is the recovery of the prop- erty demanded. (6) The declaration, in conclusion, should also contain an allegation of production of suit. This applies to all actions except dower. Actions on a writ of right conclude in this set form, "and that such is his right he offers," etc. Other actions, except dower, conclude "and therefore he brings his suit," etc. In dower no allegation of production of suit is necessary. In proceedings by bill, the declaration contains the names of two persons, usually ficti- cious, as sureties for the prosecution of the action. Rule IV. Pleas must be pleaded In due order. The order of pleadings is as follows: 1. To the jurisdiction of the court. 2. To the disability of the person of the plaintiff. To the disability of the person of the defendant. 3. To the count or declaration. QUIZ COMPEXD OP COMMON LAW PLEADING. 55 4. To the form of the writ for matter appearing on its face. To the form of the writ for matters not on its face. To the action of the writ. 5. In bar of the action. In the order given each of these steps may he taken in succession until all have been used, subject only to the provision that no more than one of each class may be filed. If the order is varied, the defendant is taken to have waived the right to use any plea prior in order, to the one filed. Thus a plea in bar is a waiver of the right to use any other. Rule V. Pleas must be pleaded with defense. In this regard "defense" means a set form of words constituting the introduction of the plea, such as "and the said A. B. by C. D., his attorney, comes and defends," etc. "Comes" constitutes the allega- tion of appearance in the suit, and "defends" means that the defendant is denying the right of the plaintiff, or the force or injury charged. Dower is an exception to the rule. In dower the defendant commences his plea by "comes and says" merely. Rule VI. Pleas In abatement must give the plaintiff a better writ or bill. That is, in pleas in abatement the defendant must point out the defect and at the same time correct the mistake, by alleging the true facts, so as to enable the plaintiff to procure a corrected writ or bill. Thus if the plea is on the ground of misnomer, the defendant must allege the true name. Rule VII. Dilatory pleas must be pleaded at a preliminary stage of the suit. That is, dilatory pleas must be filed before demurrer, demand of oyer, view or general imparlance, or any plea in bar. 56 QUIZ COMPEND OF COMMON LAW PLEADING. Rule VIM. All affirmative pleadings which do not conclude to the country must conclude with a verification. Where an issue is tendered for trial by jury the plead- ing of course concludes to the country, in all other cases pleadings in the affirmative must conclude with a verification. A verification is simply the words "and this the said A. B. (or C. D.) Is ready to verify." A negative, generally being incapable of proof, needs no verification. Rule IX. In all pleadings where a deed is alleged, under which the party claims or justifies, profert of such deed must be made. This rule applies not alone to deeds, but also to letters testamentary and letters of administration. Profert means production of the instrument in court. Rule applies only in cases where a party claims or jus- tifies under the instrument and can not be involied when the deed or other instrument is mentioned merely for some collateral purpose. Exception. If the instrument be lost or destroyed or in possession of the opposite party, profert is dis- pensed with by allegation of such facts. Rule X. All pleadings must be properly entitled of the court and term. As to the court it is usual to head the pleading — "In the King's Bench;" "In the Common Pleas," or "In the Exchequer." As to the term, in general, as follows: "Trinity Term, in the fourth year of the reign of King George the Fourth." The full caption being "In the King's Bench, Trinity Term, in the fourth year of the reign of King George the Fourth." QUIZ COMPEND OF COMMON LAW PLEADING. 57 Rule XI. All pleadings ought to be true. There is no means of enforcing ttiis rule. Sham plead- ings and fictions were of common use at common law regardless of the rule and were generally coun- tenanced by the courts for the "convenience of jus- tice," as it was said. PARTIES TO ACTIONS. All parties to actions at Common Law are presumed to be citizens of the state until they are shown to be aliens. If the right claimed or redress sought be In but one person, the action must be brought in the name of that one alone. If the obligation or liability rest upon one person, the action must be brought against that one alone. If the right claimed or redress sought be in several, the action must be brought in the names of all entitled. If the obligation or liability rests upon several, the action must be brought against all similarly bound. If, however, the obligation or liability be both joint and several, the plaintiff has the option of filing an action against all, on the joint liability, or proceeding against each by separate actions. All Causes of Action are Either — 1. Ex contractu. For breach of contract. 2. Ex delictu. For injuries to the person, to character or to property. 1. In actions ex contractu, (a) Too many plaintiffs. If too many persons are made plaintiffs, and the defect is apparent on the face of the record, it may be taken advantage of by demurrer, motion in arrest of judgment, or after judgment by proceedings in error. If the defect is not apparent on the face of the record, the defendant may file a plea in abatement, stating 58 QUIZ COMPEND OP COMMON LxVW PLEADING. the defect, or upon trial, when the defect is stiown, move for a nonsuit (6) Too few •plaintiffs. The same rules apply as in case of too many plaintiffs. (c)Too many defendants. If too many persons are sued on a liability ex contractu, and the defect is apparent on the face of the record, it may be taken advantage of by demurrer, by motion in arrest of judgment, or by writ of error. If the defect did not appear on the face of the record, a nonsuit, at the trial, was the only remedy. (d) Too few defendants. If the defect appeared on the face of the record, a de- murrer, motion in arrest of judgment, or proceedings in error was proper. If the defect did not appear on the face of the record, a plea in abatement was the only manner of taking advantage of the defect. 2. In actions ex delictu. (a) Too many plaintiffs. If too many persons are made plaintiffs, and the error appears in the record, it may be taken advantage of by demurrer, motion in arrest of judgment, or by proceedings in error. If the error does not appear on the face of the record, the proper course is to take objection by plea in abatement, or motion for a nonsuit at the trial. (6) Too few plaintiffs. If too few persons are made plaintiffs in an action ex delictu, the only remedy is by plea m abatement, before trial, or an apportionment of the damages at the trial. (c) Too many defendants. This is not fatal error; in this instance the plaintiff may either enter a nonsuit as to one or more and take a verdict against the rest, or one or more may be ac- quitted by the jury, and a verdict be rendered against the other or others. (d) In actions ex delictu the plaintiff is not bound to sue all persons liable, but can select any he chooses, on QUIZ COMPEND OF COMMON LAW PLEADING. 59 account of the fact that joint tort feasors are equally liahle for the act, consequently the objection that too few are sued can not arise. An action against one joint tort feasor is not a bar to an action against another joint tort feasor unless a recovery is obtained. A recovery, however, bars all further actions. Exception. Slander, being incapable of joint commission, is an exception to the rule that all liable may be joined. If several are joined in an action of tort for slander, the defendant may demur or move in arrest of judgment if verdict is given. Assignment of Rights of Action. 1. Ex delictu. At common law, an action for an injury could not be assigned, consequently, if one died, pending an action, the right or liability, as the case might be, was forever gone. However, a statute was passed allowing actions for in- juries to personal property to be brought by the per- sonal representatives of the decedent, but the act did not apply to the wrongdoer, so that the death of the defendant barred the remedy. Torts of the purely personal class, those not affecting property, never survive. It the cause of action was joint or the liability rested upon several, it survived to or against those remaining upon death of one or the other of the parties on either side. 2. Ex contractu. In actions ex contractu upon death of either party, or the survivor of either, in joint actions, the cause ot action survived to or against the personal repre- sentatives of each. Exception. Contracts of record or under seal in which the heir of the contracting party is mentioned. In this instance. If the heir, so named, has assets by descent, he may be sued on his ancestor's promise. No cause of action could be assigned inter vivos at common law. 60 QUIZ COMPEND OF COMMON LAW PLEADING. Husband and Wife. If a woman makes a contract or suffers an injury to her person or property, and then marries, she must join her husband as plaintiff in order to sue. If the action is brought against her upon any contract made or wrong committed by her before marriage, her husband must be joined as defendant. If a husband desires to sue on any contracts with or in- juries to his wife, made or done before her marriage to him, he must join her as a party plaintiff, since, if he should die, the right would survive to her. A husband may sue alone for injuries to his wife com- mitted during marriage, but can recover only for his personal loss, and not for her injuries or suf- fering. If the wife survive the husband, she may be sued for all personal wrongs committed by her either before or during marriage. If the husband survive the wife, he can not be sued upon her personal contracts or for her torts, except that in case she leaves property not reduced to possession by him, he can be sued on her contracts as her ad- ministrator. If the wife sues or has been sued without her husband, the defect is only subject to a plea in abatement. If a husband sues alone where a wife should be joined or joins his wife where he should sue alone, a demur is the proper manner of objecting to the error before trial, or a motion for a nonsuit at the trial. Infancy. Infants must sue by guardian or next friend and defend by guardian alone. A motion to the court is required for leave to appear by guardian and to compel appearance by guardian. If an infant defendant appears and defends by attorney he may, on becoming of age, have a writ of error coram nobis to reverse any judgment that may be rendered against him. QUIZ COMPEND OF COMMON LAW PLEADING. 61 GENERAL. Revivor. In such cases, above mentioned, in wtiich the cause of action is allowed to survive to or against the per- sonal representatives of a deceased, it is not neces- sary to file a new action in the name of such repre- sentative, if the party died pending the action, hut the usual course is for one party or the other to sug- gest the death and have summons issue for the rep- resentative, and upon his appearance the action is said to revive. Statutory action for death hy negligence. At common law the death of a party injured destroyed the right of action for damages to the person and for suffering or pain he experienced, and gave no oppor- tunity for redress to the family dependent upon the decedent or entitled to his or her services. While the personal action for injury or suffering still abates upon death of the party, a statute now gives the husband or wife, or parent or child, or personal representative, an action for the pecuniary value of the life destroyed, as nearly as can be estimated, in cases of death by negligence, if the injured party would have had an action for such negligent act had he survived.