CHAPTER XX. OF PLEADING. PLEADINGS are the mutual altercations between the plaintiff and defendant; which at present are set down and delivered into the proper office in writing, though formerly they were usually put in by their counsel ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries; whence in our old law French the pleadings are frequently denominated the parol. (1) The first of these is the declaration, narratio, or count, anciently called the tale; (a) in which the plaintiff sets forth his cause of complaint at length, being indeed only an amplification or exposition of the original writ upon which his action is founded, with the additional circumstances of time and place, when and where the injury was committed. But we may remember, (b) that in the king's bench, when the defendant is brought into court by bill of Middlesex, upon a supposed trespass, in order to give the court a jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury, he thinks proper; unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue. And so also, in order to have the benefit of a capias to secure the defendant's person, it was the ancient practice, and is therefore still warrantable in the common *pleas, to sue out a [*294] writ of trespass quare clausum fregit, for breaking the plaintiff's close: and when the defendant is once brought in upon this writ, the plaintiff declares in whatever action the nature of his true injury may require; as in an action (b) See pages 285, 288. (a) Appendix, No. II, § 2; No. III, § 6. (1) "Pleading is practically nothing more than affirming or denying, in a formal and orderly manner, those facts which constitute the ground of the plaintiff's demand and of the defendant's defence. Pleading, therefore, consists merely in alleging matter of fact, or in denying what is alleged as such by the adverse party." Gould Pl., Chap. I, § 3. "It is one of the first principles of pleading, that there is only occasion to state facts, which must be done for the purpose of informing the court, whose duty it is to declare the law arising upon those facts, and of apprising the opposite party of what is meant to be proved in order to give him an opportunity to answer or traverse it." Buller J., Dougl., 159. But it is not necessary in pleading to state what is merely matter of evidence, nor what the court takes notice of ex officio, nor what would come more properly from the other side; nor is it necessary to allege circumstances necessarily implied, nor to allege what the law will presume. Stephen Pl., 342-355. Only facts which are necessary and relevant should be stated. While irrelevant matter is simply rejected as superfluous, the pleader, by too minute detail in stating necessary matter will increase the difficulty of proving his case, and the danger of failing in it. Steph. Pl., 424. The requisite facts must be stated intelligibly and consistently. The pleading must not be ambiguous in meaning, and the position taken must be stated in absolute form and not left to be collected from inference or argument. The pleading must not be in the alternative, and must be positive, not by way of recital, must set forth matters according to their legal effect, must be framed agreeably to approved precedents. If facts stated in pleadings admit of two meanings, that is taken which is unfavorable to the pleader. Stephen Pl., 377-393. But the last statement must be received with the qualification that the language of the pleading is to have a reasonable intendment and construction, and where an expression is capable of different meanings, that is to be taken which will support the pleading. I Chitty Pl., p. 238. In general whatever is alleged in pleading must be alleged with certainty, that is, with clearness, distinctness and particularity; but a general mode of pleading is often allowed, to avoid great prolixity, or where the allegation on the other side must reduce the matter to certainty. Less particularity is required when the facts lie more in the knowledge of the opposite party than of the party pleading; so in the statement of matters merely of inducement or aggravation. Stephen Pl., 335-374. For a discussion of the different degrees of certainty required in different kinds of pleading, see Gould's Pleadings, § 51, et seq. of covenant, or on the case for breach of contract, or other less forcible transgression: (c) unless, by holding the defendant to bail on a special ac etiam, he has bound himself to declare accordingly. (2) In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, &c., affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen; (3) but in transitory actions, for injuries that might have happened anywhere, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be had in that county in which the declaration is laid. Though, if the defendant will make affidavit that the cause of action, if any, arose not in that but in another county, the court will direct a change of the venue, or visne (that is, the vicinia, or neighbourhood, in which the injury is declared to be done), and will oblige the plaintiff to declare in the other county; unless he will undertake to give material evidence in the first. For the statutes 6 Ric. II, c. 2, and 4 Hen. IV, c. 18, having ordered all writs to be laid in their proper counties, this, as the judges conceived, empowered them to change the venue, if required, and not to insist rigidly on abating the writ: which practice began in the reign of James the First. (d) And this power is discretionally exercised, so as to prevent, (c) 2 Ventr. 259. (d) Rastall, tit. Dette, 184, b. Fitz. Abr. tit. Briefe, 18. Salk. 670. Trye's Jus. Filiz, 231. Styl. Pract. Reg. (edit. 1657) 331. (2) It is an ancient, reasonable and sound principle of the common law that the declaration should be conformable to the writ, and in the language of Lord Coke must not be either "narrower or broader." Co. Lit. 303a. At the earliest period of written pleadings of which we have clear and distinct traces, either in the books of precedents or reports, the declaration, when the action was commenced by original writ, contained a recital of it at large. If, therefore, an objectionable variance existed between the writ and the declaration, it appeared in the face of the latter, and the defendant availed himself of it by demurrer, plea in abatement, motion in arrest of judgment or upon writ of error. Com. Dig., tit. Pleader, c. 13; 2 Wils, 293. Such continued the form of pleading until, in the year 1654, a rule was made in the court of common pleas, in order to dispense in most cases with the useless repetition of the writ, that the nature only of the action should be stated. After the adoption of this rule it was held that the only mode whereby the defendant could avail himself of a variance between the writ and the count was by praying oyer of the writ, whereby the writ as well as the declaration would be placed on the record. Salk., 658, 701; 2 Wils.. 85, 293. Oyer of the writ continued to be granted in the court of king's bench until the case of Boats v. Edwards, in the year 1779, Doug., 227, when Lord Mansfield, delivering the opinion of that court, said the practice was used for delay, and from thence forth plaintiffs might proceed as though demand of oyer had not been made. Since that time oyer of the writ for the purpose of setting aside the proceedings has been uniformly refused in both courts, and in those cases where a defendant may avail himself of a variance between the writ and the declaration, he is permitted to do so by motion to set aside the proceedings for irregularity. Bank v. Arrowsmith, 9 N. J., 284. If, however, the defect in the writ appears on the face of the declaration, the objection may be taken by plea in abatement. Murray v. Hubbart, 1 B. and P., 645. As no demand of oyer is allowed, it is held that no objection can be raised to a variance between the writ and declaration: Cronly v. Brown, 12 Wend., 271; except where the defendant has been arrested and held to bail. McFarlan v. Townsend, 17 Wend., 440. After demand of oyer the objection was raised either by plea in abatement or special demurrer. Newlin v. Palmer, 11 S. and R., 88; though it has been held that the variance was only pleadable in abatement. Duval v. Craig, 2 Wheat., 45; Chirac v. Reinicker, 11 Wheat., 280. It has been suggested that under the practice in most of our states of issuing the original, not out of chancery, but from the court in which the pleadings are filed, there is no need of craving oyer, but that the variance may be reached by special demurrer. See Young v. Grey, 1 McCord, 138. As to the general requisites of the declaration in regard to the names, number and character of the parties, see 1 Chitty Pleading, 244 et seq. (3) Trespass for injury to real estate, and perhaps actions on covenants which run with the land, are local. Sumner v. Finegan, 15 Mass., 280. Where the action of covenant is founded on privity of contract between the parties, their executors or administrators, it is transitory and may be sued as a transitory action; but when it is founded on the privity of estate, the action is then local and must be sued in the county where the land lies. Lienow v. Ellis, 6 Mass., 331; White v. Sanborn, 6 N. H., 220. and not to cause, a defect of justice. Therefore, the court will not change the venue to any of the four northern counties, previous to the spring circuit; because there the assizes are holden only once a year, at the time of the summer circuit. And it will sometimes remove the venue from the proper jurisdiction (especially of a narrow and limited kind), upon a suggestion, duly supported, that a fair and impartial trial cannot be had therein. (e) *It is generally usual, in actions upon the case, to set forth several [*295] cases by different counts in the same declaration; so that, if the plaintiff fails in the proof of one, he may succeed in another. (4) As, in an action on the case upon an assumpsit for goods sold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant; as that they bargained for twenty pounds: and lest he should fail in the proof of this, he counts likewise upon a quantum valebant; that the defendant bought other goods, and agreed to pay him so much as they were reasonably worth; and then avers that they were worth other twenty pounds; and so on in three or four different shapes; (5) and at last concludes with declaring, that the defendant had refused to fulfil any of these agreements, whereby he is endamaged to such a value. And if he proves the case laid in any one of his counts, though he fails in the rest, he shall recover proportionable damages. This declaration always concludes with these words: "And thereupon he brings suit," &c., inde producit sectam," &c. (6) By which words, suit or secta (a sequendo), were anciently understood the witnesses or followers of the plaintiff. (f) For in former times, the law would not put the defendant to the trouble of answering the charge, till the plaintiff had made out at least a probable case. (g) But the actual production of the suit, the secta, or followers, is now antiquated, and hath been totally disused, at least ever since the reign of Edward the Third, though the form of it still continues. At the end of the declaration are added also the plaintiff's common pledges of prosecution, John Doe and Richard Roe, (7) which as we before observed, (h) are now mere names of form; though formerly they were of use to answer to the king for the amercement of the plaintiff, in case he were nonsuited, barred of his action, or had a verdict or judgment against him. (1) For, if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any subsequent stage of the action, he is adjudged not to follow or pursue [*296] his remedy as he ought to do, and thereupon a nonsuit or non prose (4) But several counts for the same cause of action are not now allowed, as a general rule, and the court, on motion, may order them stricken out. Reg. Gen., Trin. T., 1853. (5) The difference must be more than merely formal, for if the same evidence would support each count, the court may expunge all but one as superfluous. 1 Tidd Pract., c. 16. It is a rule that several counts may be joined in the same declaration for different causes of action, provided they are of the same nature. Thus, in actions upon contract the plaintiff may join as many different counts as he has causes of action in account; so likewise in assumpsit, or in covenant, debt, annuity, or scire facias. In like manner in actions for wrongs independently of contract, the plaintiff may join as many different counts as he has causes of action in case, or in detinue, replevin, trespass or trover, and he may join trespass and battery of a servant per quod servitium amisit, or trespass and rescue. In general, counts in actions upon contract cannot be joined with counts for wrongs independently of contract, nor can counts in any one species of these actions be joined with counts in another. But debt and detinue can be joined if both are founded on contract. 1 Tidd Pr., 12, 13, and case and trover may be joined. 1 Chitty Pl., p. 201 and notes. (6) When the action is against an officer of the court or attorney it is said that the conclusion should be "and therefore he prays relief, &c., unde petit remedium." Chitty Pl. 1, p. 437. (7) This form was not essential, and is now obsolete. quiter, is entered; and he is said to be nonpros'd. (8) And for thus deserting his complaint, after making a false claim or complaint (pro falso clamore suo), he shall not only pay costs to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonsuit, in that the one is negative, and the other positive: the nonsuit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again, upon payment of costs; but a retraxit is an open and voluntary renunciation of his suit in court, and by this he forever loses his action. A discontinuance is somewhat similar to a nonsuit; for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend: but the plaintiff must begin again, by suing out a new original, usually paying costs to his antagonist. Anciently, by the demise of the king, all suits depending in his courts were at once discontinued, and the plaintiff was obliged to renew the process by suing out a fresh writ from the successor; the virtue of the former writ being totally gone, and the defendant no longer bound to attend in consequence thereof: but, to prevent the expense as well as delay attending this rule of law, the statute 1 Edw. VI, c. 7, enacts, that by the death of the king no action shall be discontinued; but all proceedings shall stand good as if the same king had been living. When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his defence, and to put in a plea; else the plaintiff will at once recover judgment by default, or nihil dicit of the defendant. Defence, in its true legal sense, signifies not a justification, protection, or guard, which is now its popular signification; but merely an opposing or denial (from the French verb defender) of the truth or validity of the complaint. It is the contestatio litis of the civilians: a general assertion that the plaintiff hath no ground of action, which assertion is afterwards extended *and* maintained in his plea. For it would be ridiculous to suppose that [*297] the defendant comes and defends (or, in the vulgar acceptation, justifies) the force and injury, in one line, and pleads that he is not guilty of the trespass complained of, in the next. And therefore, in actions of dower, where the demandant doth not count of any injury done, but merely demands her endowment, (k) and in assizes of land, where also there is no injury alleged, but merely a question of right stated for the determination of the recognitors or jury, the tenant makes no defence. (1) In writs of entry, (m) where no injury is stated in the count, but merely the right of the demandant and the defective title of the tenant, the tenant comes and defends or denies his right, jus suum; that is, (as I understand it, though with a small grammatical inaccuracy), the right of the demandant, the only one expressly mentioned in the pleadings, or else denies his own right to be such, as is suggested by the count of the demandant. And in writs of right, (n) the tenant always comes and defends the right of the demandant and his seisin, jus prædicti S. et seisinam ipsius (o) (or else the seisin of his ancestor, upon which he counts, as the case may be), and the demandant may reply, that the tenant unjustly defends his, the demandant's, right, and the seisin on which he counts. (p) All which is extremely clear, if we understand by defence an opposition or denial, but it is otherwise inexplicably difficult. (9) (k) Rastal, Ent. 234. (1) Booth of Real Actions, 118. (n) Appendix, No. I, § 5. (0) Co. Entr. 182. (m) Book II. Appendix, No. V, § 2. (p) Nov. Nar. 230, edit. 1534. (9) The true reason of this, says Booth (on Real Actions, 94, 112), I could never yet find; so little did he understand of principles! (8) Unless this judgment is entered up, the plaintiff is not regarded as out of court till a year from the return day of the writ, and may deliver a declaration within that time. Cooper v. Nias, 3 B. and Ald., 271. As to other practice in entering judgment of non pros, see 1 Tidd Pr., 458-9. The courts were formerly very nice and curious with respect to the nature of the defence, so that if no defence was made, though a sufficient plea was pleaded, the plaintiff should recover judgment: () and therefore the book entitled nova narrationes or the new talys, (s) at the end of almost every count, narratio, or tale, subjoins such defence as is proper for the defendant to make. For a general defence or denial was not prudent in every situation, since thereby the propriety of the writ, the competency of the plaintiff, and the cognizance [*298] of the court were allowed. By defending the force and injury, *the defendant waived all pleas of misnomer; (t) by defending the damages, all exceptions to the person of the plaintiff; and by defending either the one or the other when and where it should behove him, he acknowledged the jurisdiction of court. (u) But of late years these niceties have been very deservedly discountenanced: (w) though they still seem to be law, if insisted on. (x) Before defence made, if at all, cognizance of the suit must be claimed or demanded; when any person or body corporate hath the franchise, not only of holding pleas within a particular limited jurisdiction, but also of the cognizance of pleas: and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof: or with such exclusive words, which also entitles the defendant to plead to the jurisdiction of the court. (y) Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction. As, when a scholar, or other privileged person, of the universities of Oxford or Cambridge, is impleaded in the courts at Westminster, for any cause of action whatsoever, unless upon a question of freehold. (z) In these cases, by the charters of those learned bodies, confirmed by act of parliament, the chancellor or vice-chancellor may put in a claim of cognizance; which, if made in due time and form, and with due proof of the facts alleged, is regularly allowed by the courts. (a) It must be demanded before full defence is made (b) or imparlance prayed; for these are a submission to the jurisdiction of the superior court, and the delay is a laches in the lord of the franchise: and it will not be allowed, if it occasions a failure of justice, (c) or if an action be brought against the person himself, who claims the franchise, unless he hath also a power in such case of making another judge. (d) (9) [*299] (r) Co. Litt. 127. (s) Edit. 1534. (t) Theloal, dig. l. 14, c. 1, p. 857. (u) En la defence sont iij choses entendantz; per tant quil defende tort et force, home doyt entendre (9) While the rule generally is that no one be judge of his own cause, yet if a party agree to refer a controversy to the decision of an interested party, he is bound by such decision. Ranger v. Railway Co., 5 H. L. Cas., 72; Monongahela, etc., Co. v. Fenton, 4 Watts and 8, 205. |